Does cheating affect divorce settlements in Australia?

Infidelity is one of the most common reasons relationships end. But under the ‘no fault divorce’ rules of the Australian Family Law Act 1975, your partner’s infidelity doesn’t necessarily mean that you’ll get a bigger share of the assets.

Divorce law in Australia is more businesslike than drama based. And despite what the public generally assumes, the law doesn’t assign blame or penalties when a marriage breaks down – even if one partner had an affair.

However, there’s a difference between divorce, which is the legal end of your marriage, and property settlement, which legally divides your property pool. So even though the Court won’t consider cheating in divorce proceedings, there are situations where an affair can influence how your financial assets are divided, especially if shared money was spent on the relationship.

How does infidelity impact property settlements?

In most cases, cheating does not directly influence divorce or property division. Instead, the Court focuses on the contributions of the parties and their future needs. They’re not looking at either party’s conduct – good or bad.

Here are the factors the Court will look at in a property settlement:

• Each party’s financial contributions, including income, assets, and superannuation.
• Each party’s non-financial contributions, including caring for children and household duties.
• The future needs of each party, such as their health, their earning capacity, and who will be caring for children.

These factors have nothing to do with who cheated or why the relationship ended. Even if the infidelity has caused significant emotional impact, it will not usually affect the legal outcome of how the property is divided.

When an affair might indirectly affect a settlement

Although one partner’s cheating itself won’t be considered as part of the couple’s financial settlement, certain behaviors related to the infidelity can have an influence.

Using joint assets to fund the affair

If your ex-partner used shared money to pay for things like flights, hotel stays, gifts, jewellery, dating app subscriptions, or nights out, or has secret accounts where they squirrel away money to fund the affair, you may argue that this was a reckless disposal of assets under the principle of waste.

The principle of waste is where one party deliberately or recklessly reduces the value of marital assets. These might include situations where a partner has:

• Hidden assets to avoid disclosure during separation
• Transferred money to a third party (including the person they’re cheating with)
• Withdrawn large sums of cash without explanation
• Moved joint funds into private accounts
• Used business funds or company resources to support the relationship
• Misappropriated shared assets, such as selling property and keeping the proceeds for themselves

In these cases, the issue isn’t the affair per se. The issue is that the other person has misused the marital assets, and you can then ask the Court to adjust the settlement to compensate.

Parenting impacts

The Court decides parenting outcomes, such as custody and financial support, based on the best interests of the child. Infidelity alone doesn’t necessarily make someone a bad parent, so it’s rarely relevant in financial settlements unless there are some other impacts.

So, if the affair caused emotional instability that impacts your kids or if their safety is at risk, this may impact parenting matters. And if that’s the case, it might also impact how your finances are divided if, for example, you are more responsible for childcare.

Some things that might cause emotional instability for your kids and that could also stem from an affair might be if:

• a parent suddenly moves out, leading to unstable living arrangements
• the kids’ routines have abruptly changed
• one partner has prioritised a new relationship over their childcare responsibilities (i.e., neglect)
• the kids are left in unsafe environments
• they’ve been exposed to conflict or family violence

It’s not about the cheating, but it is about how the cheating affects the children.

Do you need to prove there’s been infidelity?

Not for divorce. Australia’s system doesn’t require proof of fault. In order to divorce, you just need to have been separated for 12 months.

You only need to provide evidence of cheating if you’re alleging that there’s been financial misconduct or you’re seeking adjustments to your financial settlement due to wastage or ‘reckless disposal of assets’.

When it comes to providing that evidence, however, you do need to be cautious if it’s digital. Screen recordings, texts and social media posts aren’t always admissible, especially if they were obtained unlawfully or breach privacy laws.

If you need to gather evidence to prove infidelity, get in touch with our team. We can help you understand how to do this legally.

Emotional and practical considerations

Even though cheating is unlikely to change your financial settlement on its own, it can have a massive emotional impact. You might feel angry or betrayed, pressure to ‘win’ the settlement, or even have a desire for revenge or to ‘take it all’. Any of these feelings might also make you less than eager to negotiate.

If you’re feeling any of these things, that’s OK. These are normal reactions, and many people feel exactly this way when they’re in this situation.

But acting from anger can be financially detrimental to you in the long term and put you in a worse legal position. For example, it could lead to expensive litigation or delays in finalising your separation and your financial settlement.

Getting support from a counsellor and your legal team can help you negotiate from a grounded place, rather than reacting emotionally, no matter how valid those feelings are.

Getting legal advice for affairs and divorce settlements

If your separation involves infidelity, a lawyer can help you:

• find, trace and document misused or hidden assets and money
• determine whether those misused or hidden assets would be considered waste or reckless disposal of assets
• prepare evidence lawfully
• negotiate a fair financial settlement
• formalise agreements through consent orders or Court proceedings

Frequently asked questions

Does cheating impact a divorce?

No. Australia has a no-fault divorce system, which means that cheating is not taken into account in any divorce proceeding. The only step you have to take to be eligible for divorce is to be separated for 12 months.

Is dating before your divorce is finalised adultery?

No, not as long as you are separated and both parties know that you are separated. Dating during separation doesn’t affect the legal divorce process. However, it could become relevant if shared finances are spent on the new relationship.

Does cheating affect property settlement?

Cheating doesn’t impact property settlement legally. But if the cheating party has wasted assets (for example, spending money recklessly on hotel rooms or gifts), evidence of this can be introduced, and this can allow the Court to make adjustments in how the property pool is divided.

Does proof of infidelity help in divorce?

Proof of infidelity does not impact divorce in our no-fault divorce system. However, the evidence of cheating can be useful if you’re trying to prove that there’s been financial misconduct or that the behaviours stemming from the divorce have impacted your children.

Our team can help you protect your future

If there’s been infidelity in your relationship and you’re in the midst of a financial settlement, get in touch with our team. We can give you tailored advice about your rights and options and will make sure that you don’t have to navigate this experience on your own. We’re always here to help.