How Does Adultery Affect Divorce Cases in Australia?

In many countries, cultures, and religions, adultery is treated as either a criminal offence or a sin. Adultery is not treated this way in Australia, even in the case of divorce. Here’s why:

Why Adultery Laws Exist/Don’t Exist

In many other countries and jurisdictions, adultery may be seen unfavourably in the eyes of the law. These laws fall under many categories, such as misdemeanours or even criminal offences as in many (but not all) states in the United States.

The justification behind such laws has a lot to do with social norms and historical traditions. There’s no denying that even where adultery is not considered a crime, it’s not exactly good behaviour in a well-functioning society. Adultery leads to the erosion of trust, broken homes, and ultimately, divorce.

Adultery is without a doubt a major reason why so many marriages fall apart in Australia (and elsewhere), so it would make sense that it’s a clear reason for a divorce. We’ll learn later on why this does matter on one hand, but when seeking divorce it is not a necessary factor at all.

Sexual Conduct in Australia

Since 1994, Australia has enacted a federal law pertaining to sexual conduct between consenting adults. In brief, the law says that any two individuals aged 18 or over may engage in consensual sexual behaviour.

What’s important to note is that this law does not discriminate two consenting adults by their marital status, meaning that either, both, or none of the people involved need to demonstrate their marital status. In other words, adultery in Australia carries no legal consequences such as misdemeanours, felonies, or criminal offences as in some states in the United States, for example.

How Do I Prove a Cause for Divorce Then?

In Australia, adultery is not seen as a cause for divorce according to the 1975 Family Law Act. Before 1975, one of the spouses required a reasonable cause for divorce, such as drunkenness, substance abuse, or insanity.

Since 1975, no cause (or fault) is required for a divorce. This makes Australia a country in which ‘no-fault’ divorce is the status quo. In short, all that’s required for a divorce in Australia is that one spouse claim that the marriage is irrevocably ended through 12 months of separation from the other spouse.

Now to split hairs, although adultery is not a fault for divorce (no fault is required), it’s certainly something that causes hardship and sometimes hostility between the spouses. When the Family Court oversees your divorce case, factors such as adultery may create tension and lead to arguing over child custody or property settlement.

Where the behaviour of one spouse is such that they cannot demonstrably support the child(ren) safely, there may be repercussions in terms of custody. Parental responsibility is not only the right thing to do, but it’s a legal duty in Australia. Failure to provide for the wellbeing and welfare of the child(ren) can lead to unfavourable decisions for you (or your spouse) in Family Court. 

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If you’re looking for a reputable law firm in Victoria, contact National Family Lawyers today. Our team of family law experts have helped countless Victorians achieve favourable outcomes in divorce proceedings.

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