We’ve all seen those Hollywood films where scorned lovers hire a private investigator to catch their cheating spouse red-handed. You may have been wondering whether catching your ex cheating means you’ll get more in the property settlement…?

If that’s what you thought, unfortunately you’d be wrong.

Australia is a ‘no fault’ jurisdiction when it comes to divorce. This means the court will not consider who has caused your marriage to breakdown.  The only ground for divorce in Australia is where there has been an “irretrievable breakdown of the marriage” which must be proven by 12 months’ separation.

Property settlements are considered separately to divorce proceedings.  For married couples, an application for property settlement can be made up until one year from the date upon which a divorce order becomes final.  For de facto couples it is 2 years from the date of separation.

The general principles a court considers in determining a property settlement include:

  • Just and Equitable: the court can only make orders in relation to property if it is satisfied that it is just and equitable to do so.
  • Asset Pool: the court will make a finding as to the net asset pool available for division by considering all assets and liabilities in which either spouse party has an interest and the value to be attributed.
  • Contributions: the court will then assess the contributions of the spouse parties since cohabitation. These include financial contributions such as regular income or a lump sum such as an inheritance, but also non-financial contributions such as caring for children and homemaking duties.
  • Future Needs: the court will then consider the future need of each spouse party by reference to a list of factors including but not limited to the health and age of each spouse party, the future capacity to earn, the requirement to care for children or if a spouse party has re-partnered.

Infidelity by your spouse is not relevant in terms of the principles as outlined above and therefore will not be considered at all by a court in determining the property settlement. There are some circumstances in which the court may consider adjusting the property settlement as a result of a spouse’s behaviour.

Where a spouse party has been a victim of severe and prolonged family violence throughout the course of the relationship, a court may determine that their contributions were made more onerous as a result and may therefore be entitled to a further percentage adjustment in the property settlement. Similarly, if a spouse party has wasted matrimonial assets in a reckless, negligent or wanton manner, such as gambling, a court may take such behaviour into account and make further adjustments in the other spouse party’s favour in the property settlement.