The common misconception following a divorce where adultery is involved is that one party is now entitled to more marital assets and property because of the infidelity.
The truth is, In Australia, adultery is not something considered by the Courts in the division of your property pool.
The purpose of this article is to discuss your divorce entitlements after adultery and the decision making process by the Courts in determining your share of the property and asset pool.
How Does the Court Determine Divorce Entitlements After Adultery?
In Australia, property settlements in Court and divorce proceedings are handled separately in Court. Accordingly, the practical effect is that there is no increase or reduction in divorce entitlements after adultery.
In Australia, every divorce property settlement will have four steps that the Court will go through to determine what exactly each party will be entitled to.
Firstly – All of the property and assets will be identified and valued;
Secondly – The financial and non-financial contributions of each party will be assessed;
Thirdly– The needs of each party will be identified; and
Fourthly – The Court will take a step back and look at the property division split and ensure that it is just and equitable. This means that it is fair in all of the circumstances.
Adjustments may be made in this final step to ensure that it is ‘just and equitable.
As we can see, these are the four primary steps involved in determining a property division in Australia. Accordingly, divorce entitlements after adultery will not be any different whether or not adultery is a consideration or not.
Assessing The Financial And Non-Financial Contributions
This is the second step mentioned and is one of the most important in determining your entitlements following a divorce.
In this step, there are no set figures or values to assign to the contributions of each party. It is somewhat subjectively determined by the Courts and reference to precedent (prior cases), which show what values had been assigned previously to specific outcomes.
The purpose of is this step is for the Court to determine the weight of each contribution reasonably, which is in line with the fourth step of it being ‘just and equitable’.
Financial Contributions Include:
- Paying the mortgage or rent
- Working to support the family
- Any prior assets brought into the marriage
Non-Financial Contributions Include:
- Taking care of the home and children
- Forgoing study or job opportunities to be a stay-at-home parent or caretaker of the home
- Cooking, cleaning, gardening and general home maintenance
- Any maintenance work done to the property which has resulted in savings
- Any renovation work done to the property which has increased its value
Identifying The Needs Of Each Party
The third step is equally as important as the second in determining what you are entitled to in divorce in Australia.
The Court will generally compare each party’s needs and adjust the percentages of the property pool they will be entitled to based on their judgment to ensure that the needs of each party are fairly considered.
The most common factors which are given weight concerning the needs of each party include:
- Their health condition
- Disability status
- Financial needs to support a standard of living they are accustomed to or is reasonable in the circumstances.
- Financial position
- Ability to earn an income
Other factors will also be considered, including access to family support and any future entitlements to an inheritance.
Importance of Seeking Legal Advice
When discussing divorce entitlements after adultery, it is essential to remember that an entitlement to a share of the marital property and assets will not change.
This is because adultery is not a factor considered by the Courts in determining a split.
If you have any further questions about this topic, divorce or property settlements – please do not hesitate to contact our team of friendly and experienced family lawyers.
Here at JB Solicitors, we’ll make the process as pain-free as possible. We have fixed-fee pricing for family law, giving you a clear sense of the costs from the start, and we will be sure to help you out every step of the way. With years of experience under our belt, we pride ourselves on making each client’s family law experience as positive as possible.
Contact JB Solicitors today to speak with one of our friendly and experienced family lawyers.
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