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Infidelity, property disputes, and the wastage argument – how to determine who gets what when you break up

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Attwood Marshall Lawyers Family Law Associate Emily Edmonds joins Robyn Hyland on Radio 4CRB for “Law Talks” to discuss if infidelity is considered when determining a property settlement following the breakdown of a relationship.

Introduction

Relationships can breakdown for any number of reasons, however, infidelity tends to be one of the main factors that causes a relationship to end.

Most estimates seem to indicate that roughly 60 per cent of men, and 45 per cent of women have cheated on their spouse at some time during their relationship. These confessions suggest that around 70 per cent of all marriages experience an affair.

It seems that infidelity has increased over the years, and there are many contributing factors that have led to cheating becoming more common, including the digital era playing a key part in the growing epidemic.

“Internet infidelity” or “online cheating” is a relatively new age term and has certainly aided in the number of affairs and subsequent divorces taking place. The internet has made having an affair, especially an emotional affair, easier than ever before.

There are of course many other reasons that can lead to a person being unfaithful. Whether it’s because of unhappiness or dissatisfaction with the marriage; one party feeling unappreciated or undervalued; boredom; or even aging, with people chasing their youth and deciding that they want a younger partner as a result.

When a relationship comes to an end because one partner cheated on the other, it can make negotiations about how property be divided a volatile situation.

If someone cheats on their spouse, should they be entitled to less in a property settlement?

The simple answer is no.

There is a common misconception that many people have when facing separation and divorce that if one partner was at fault for the breakdown of the relationship, they should be entitled to less than the aggrieved partner.

The fact is that it doesn’t matter who was at fault for the marriage or relationship breaking down.

Australia has a no-fault divorce system. This means that when granting a divorce, or looking at dividing property, generally the court does not consider the reason the marriage ended.

When it comes to infidelity, who did what is insignificant and the court will not take this into consideration when determining a property settlement.

The “Wastage” Argument

There are rare exceptions to this rule, where infidelity or one party’s conduct during the relationship may impact the division of property.

An instance where this may be considered a factor is if one party can prove that the other person, for example the unfaithful spouse, has spent matrimonial funds on expensive items, such as holidays or lavish gifts, for a third party, and in doing so has ultimately diminished the joint asset pool.

There have been several cases where the courts have added back to the asset pool, the value of assets that have been wasted by one party. This may have been because of one party’s conduct that reduced or minimised the value of the asset pool, or perhaps because they acted recklessly or negligently to diminish the asset pool.

In the context of infidelity, this would include expenditure of joint funds on that third person, which is undertaken by the unfaithful spouse without the knowledge or consent of the other party.  

Wastage arguments are quite difficult to run however, and it comes down to the discretion of the judge looking at all the facts of the matter.

What does a court take into consideration when determining who gets what after a relationship comes to an end?

There is a relatively straightforward five-step test that is used to establish each person’s entitlement to a property settlement.

Step 1: Determining whether it is just and equitable to adjust the parties’ interest in property. If it is found that an adjustment would be just and equitable, they then move to step two;

Step 2: Determining what assets and liabilities are held by both parties and their values. Assets that are considered include real property, motor vehicles, bank accounts, superannuation, shares and investments, and businesses, etc.

Step 3: Considering the contributions made by both parties, which includes financial contributions, non-financial contributions, and parenting and homemaking. The main financial contribution that a party can make is usually income. Non-financial contributions may include any unpaid work such as renovations to the family home or work for a family company, and the homemaking duties and parenting roles of each of the parties is taken into consideration too.

Step 4: Identifying the future needs of both parties. For example, if one party is significantly older than the other or has health issues, their reduced capacity to earn an income would be taken into account.

Step 5: All of the above factors will be reviewed, and a court will then determine whether it has arrived at a just and equitable division of the assets. Further adjustments may still be required, and then a court will proceed with making orders to bring the financial relationship of the parties to an end.

As you can see from these steps, at no time is infidelity or the dynamics of the relationship and what caused it to break down taken into consideration.

Get trusted advice when your relationship ends

As with all disputes and family law matters, there is so much value to be gained when you seek advice from an experienced family lawyer who can help you through the difficult time, especially when emotions are running high.

An experienced family lawyer will help direct you to the best outcome and support you throughout your legal matter.

Getting trusted legal advice when your relationship has ended can ensure your best interests are protected and it gives you confidence in knowing that someone is on your side helping you bring the matter to an end so that you can move on with your life.

Attwood Marshall Lawyers – dedicated family lawyers helping people resolve conflict

Attwood Marshall Lawyers have a dedicated team of family lawyers who practice exclusively in this complex area of law.

Our lawyers understand the sensitive nature of family law matters and will be by your side every step of the way to ensure you can achieve the resolution you are seeking and put this difficult time behind you.

To make an appointment with a family lawyer, please contact our Family Law Department Manager Donna Tolley, on direct line 075506 8241, email dtolley@attwoodmarshall.com.au or free call 1800 621 071.

Our lawyers are available at any of our conveniently located offices at Robina Town Centre, Coolangatta, Southport, Kingscliff, Brisbane, Sydney, and Melbourne.

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Emily Edmonds - Associate - Family Law

Emily Edmonds

Associate
Family Law

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Disclaimer
The contents of this article are considered accurate as at the date of publication. The information contained in this article does not constitute legal advice and is of a general nature only. Readers should seek legal advice about their specific circumstances. 

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