My Spouse Cheated on me: I want more of the property settlement and more care of our children

A common comment made to family lawyers is that one party cheated on the other. There is often a presumption that the aggrieved party will then get more of the asset pool or gain more care of the children of the relationship. This is not the case. Family Law in Australia operates under a “no fault” jurisdiction, meaning there are no penalties or adjustments made, regardless of who caused the marriage breakdown.

Whilst we appreciate the emotional trauma that comes with discovering an extra marital affair, the Court is unable to apportion blame nor are they able to quantify any adjustments in the circumstances. To do so would require significant inquiry and evidence and the court simply does not have the resources available to engage in or evaluate these matters. The scope of factors to consider would be vast and further, the issues are subjective. The court requires tangible factors to consider, such as, the needs of the parties and whether the division of assets would result in a just and equitable result. These factors are set out in the Family Law Act 1975, specifically sections 75 and 79 of the Act.

Further, the only grounds the court will consider for a Divorce is whether the marriage has irretrievably broken down and you have been separated for more than 12 months. Infidelity does not enable you to apply sooner in Australia.

If you have recently separated, or know someone who has and you require your children’s issues or a property settlement to be dealt with, speak to Sriyani today.

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