The recent scandal involving the website, Ashley Madison, and the potential exposing of affairs of many of its users has led to a fair bit of rumour and talk about divorce and the consequences of affairs.
As a divorce lawyer who has worked in the area for 25 years, there can be no doubt that relationships are often put under stress and strain by the conduct of one or both of the parties. In some instances, that conduct can include extramarital affairs. However, from a financial perspective it is important to understand that the fact of the affair has no relevance whatsoever to any financial outcome in property settlement should the couple separate.
In Australia, since 1975 when the Family Law Act 1975 (Cth) was introduced, we have the concept of ‘no fault’ in divorce.
From a strict legal point of view this means that one can simply apply for a divorce after one has been separated for 12 months and you need not show anything else to the Court. You don’t have to show that the other party committed adultery nor do you have to show any other conduct of that party that justifies the divorce. The mere separation of living 12 months apart is sufficient.
However, many people still mistakenly believe that if a party leaves the marriage because of an affair or is found out to have had an affair (or even several affairs) that somehow that party will get less from a financial settlement point of view when the assets are divided.
Nothing could be further from the truth.
The cold-hard facts are that a spouse can have as many affairs as they like and act in a manner that would be considered by the majority of the population to be morally corrupt but still that will have no impact on their financial settlement when it comes to dividing assets.
Conduct by a spouse can be relevant in a financial sense if it is so reckless, wanton or negligent that is causes financial loss and/or the consequences of the conduct mean that the other parties’ contributions in the relationship are made extremely more onerous. However, even in those cases (for example someone gambling hundreds of thousands of dollars away) it is not always a shut-and-close case that the financial misconduct will be punished.
Where moral issues are involved, such as a party carrying on an affair for a number of years, then that conduct whilst distasteful to us will not have any bearing upon what the law says should be a fair and equitable settlement as between the separating couple.
Even if the guilty party leaves an innocent party and ends the marriage, that party who makes the decision to leave based on their conduct does not receive any less entitlement then the partner who is faithful and loving throughout the entire relationship.