Why Spouses Are Shocked When Told Their Partner’s Infidelity Does Not Affect Their Divorce

To discover that a spouse has been unfaithful must surely be something that rocks a person to the core, whether they have been married for three or thirty years. Knowing that the person who promised to be faithful ‘until death do us part’ has been anything but, can also generate emotions ranging across a scale from grief to sheer and outright hatred.

What follows the discovery of infidelity can vary, but when you consider that infidelity is cited as one of the top four reasons why married couples divorce, then it suggests that divorcing their cheating partner is the choice many wronged spouses make.

Before the first meeting with their family lawyer takes place, the client is often under the false impression that because their partner has committed adultery, they are going to be able to use that against them. Further, they fully expect that infidelity will mean that the financial settlements resulting from the divorce will be more beneficial for them. The simple fact is none of those assumptions is correct.

Whilst at a moral level it would seem right that a spouse whose partner had cheated on them deserves to get the lion’s share of any property settlement and that their divorce would be granted in their favour with the blame firmly at the cheating spouse’s door, Australian Family law does legislate based on morals.

Instead, and unlike what may have been the case many years ago, Australian Family law regards all divorces as having no fault or blame attached to either spouse. It also states that almost without exception, the reason for a divorce being granted will always be the irretrievable breakdown of the marriage.

The simple fact is whether a spouse has a drunken one night stand or has been cheating for years and with countless partners, it does not matter. Regardless, how abhorrent any decent-minded person might regard infidelity, as the legislation stands, the Family Court is not granted any moral compass to evaluate the outcome of a divorce even if one of the spouses has had numerous affairs.

Whilst they might explain all this with more gravitas and authority to a client than we have just done, nevertheless, it comes as a complete shock to a spouse who has been the perfect husband or wife. To discover that their partner’s infidelity carries no punishment relating to their divorce, can seem unfair in the extreme and akin to rubbing salt in the emotional wound.

When considering the divorce, there are usually four separate elements which the family court looks for either an amicable agreement or will rule upon. These are property settlement, spousal support, child support and child custody. Again, it can grate that a cheating spouse may not be obliged to pay any more child or spousal support, be granted an equal share of the property, and could even be awarded child custody if the court believed if it were in the children’s best interests.

Before we end, some narrow circumstances exist that could affect the financial aspects of the divorce which are called ‘wastage’. If a spouse was spending copious amounts of money during their infidelity such as buying a new car or expensive jewellery for their lover but claimed in the family court they had financial difficulties, the court can adjust their share of the property settlement or the support amounts they have pay, in favour of their spouse and children.