In overseas social news we often see stories where one spouse in a marriage has an affair, and the other party goes to great lengths to gather evidence to prove the cheating spouse was at fault, in the hope of securing a larger share of the assets during the divorce.

In Australia, however, there is no such concept of a “party at fault”. Australia operates on the principle of “no-fault divorce”, which means that whether or not one spouse has had an affair, the other party does not need to prove this to the court. There is only one ground for divorce in Australia:

The marriage has broken down irretrievably.

In simple terms:

• In fact, the parties must have been separated for at least 12 months;
• Emotionally, there is no reasonable likelihood of reconciliation.

[NS Legal quick facts]

Before 1975, divorce was far more difficult. Ending a marriage was treated as a matter of contract law, and to obtain a divorce one had to prove that the other party was responsible for the breakdown of the relationship. The “fault” had to amount to serious misconduct. At the time there were 14 grounds for divorce, including adultery, desertion, cruelty, insanity and habitual drunkenness. Divorce applications were frequently contested, and parties would engage lawyers or private investigators to gather evidence. As a result, divorce proceedings were extremely expensive, and for many people this was not a financially viable option. Collusion between the parties and fabrication of evidence of fault were also common.

The Whitlam government amended the law in 1975 to reflect changing social attitudes towards relationships. The resulting “no-fault divorce” regime has been in place ever since. Under this regime, the court does not consider who was at fault when the marriage broke down. It is now understood that a relationship can end for all kinds of reasons — reasons that may or may not involve fault on the part of one or both parties. Under current family law, marriage is a matter for two people that must be worked on together, and the court therefore cannot find that either spouse is at fault for the breakdown of the marriage. Either party has the right to end the marriage when they consider it appropriate to do so.

Since 1975, divorce in Australia has been based on the “no-fault” principle. This means that the party filing for divorce does not need to prove “fault” on the part of the other spouse. Under the no-fault divorce regime, either party may file a divorce application. The spouses may also file a joint application for divorce. Once the application has been filed, the applicant must demonstrate that the marriage has broken down irretrievably. This requires the parties to have been separated for at least 12 months, with no reasonable likelihood of reconciliation.

In some situations, even if the parties are still living in the same house, they may still be treated as “separated under one roof” provided they sleep in separate rooms, are financially independent, do not eat together, do not attend social events together, and so on.

Your spouse’s infidelity does not mean you will receive a larger share

Because Australia follows the no-fault divorce principle, infidelity does not affect property settlement. Property settlement in Australia is weighed and allocated based on factors such as each spouse’s financial contributions, non-financial contributions, the future needs of the parties, and the length of the marriage.

Contributions of both parties —

Financial contributions refer to who paid more in monetary terms — for example, who contributed more towards the purchase of property, mortgage repayments, and household expenses. Non-financial contributions typically refer to who devoted more time and energy to matters such as caring for the family and the children.

Length of the marriage —

In marriages of less than 5 years, financial contributions will carry greater weight in the property settlement. However, in our experience, in marriages of 10 years or longer, the financial and non-financial contributions of both parties are generally treated as equal.

Needs in relation to the property —

For example, where one party has a disability and requires care, or has lost their capacity to work, or where one party will be the primary carer of the children after divorce, that party is regarded as having greater need in relation to the property and may therefore receive a larger share.

This is different from the position in mainland China. Under Australian family law, the running of a marriage cannot be judged in terms of right or wrong; the relationship is a matter for the two parties. The breakdown of the relationship and the division of property are therefore completely unrelated. Accordingly, seeking a larger share of property as a form of compensation because the other spouse has had an affair is not viable.

Final thoughts

In Australia, spouses who are considering divorce or separation should understand the key principles of property settlement in order to avoid unnecessary legal disputes. Australia adheres to no-fault divorce, so property settlement turns largely on financial and non-financial contributions and similar factors. If you are unclear on these matters, we recommend consulting a specialist lawyer when such a situation arises, to protect your interests to the fullest extent.