The Misconception: My Ex cheated, so I’m keeping the House

By Grace Coombs, Lawyer

Much to the disappointment of those whose relationships have ended as a result of a spouses’ wandering eye…infidelity does not impact the share of property you are entitled to receive.

Individuals wanting a divorce are no longer required to prove their ex-partner has committed a matrimonial offence.

Whilst many may continue to argue their partner is guilty of insanity or wrongdoings such as adultery, cruelty or habitual drunkenness….as far as property settlement is concerned, this is usually not relevant.

Australia’s No Fault Jurisdiction

Stop the extensive Facebook stalking Sherlock Holmes – gone are the days when individuals are required to prove their spouse caused ‘fault’, triggering the breakdown of the marriage.

Prior to the introduction of the Family Law Act 1975 (Cth) (“the Act”), the allocation of ‘fault’ determined the division of property, the quantum of spousal maintenance received and child related care arrangements.

Now (in Australia), the circumstances of your separation (contrary to what your neighbour reckons happened to his mate) are not taken into consideration when a property settlement is determined.

Whilst many may be thankful of the Whitlam Government for introducing this legislation which (fun fact) repealed the Matrimonial Causes Act 1961(Cth), others may have been hopeful for revenge.

But, they cheated! Surely there are consequences?

Bad news – adultery is not a crime in Australia.

Irrespective of ones marital status, sexual conduct between consenting adults is their “private business”.

So, what do I need to prove in order to get a divorce?

In Australia, the only ‘ground’ for divorce is an “irretrievable breakdown of marriage”.

This ground is established when one can prove that he/she has been separated (and has lived separately and apart) for a period of at least twelve (12) months.

But, how is my property settlement determined?

By now you should understand that the division of your assets, liabilities and superannuation entitlements (otherwise known as a ‘property settlement’) is not determined by the circumstances of your separation.

A property settlement can occur at any time after separation, irrespective of whether you are divorced.

It must be noted that you have twelve (12) months from the date of the divorce order, to apply for a property settlement in the Family Court of Western Australia.

The principles (in summary) which guide a property settlement in the Family Court of Western Australia and determine your entitlements are as follows:

  1. Calculation of the asset pool available for division.

This exercise occurs as at the date a property settlement is determined, NOT at the date of separation. Included in the asset pool available for division are all assets, liabilities and superannuation entitlements in the joint or sole names of the couple.

  1. Assessment of Contributions.

The parties’ contributions (prior, during and post the relationship) are assessed in three categories; financial, non-financial and homemaking/parenting.

  1. Determination of the parties ‘future needs’.

Known as “section 75(2) factors”, these 19 factors determine an appropriate adjustment (if any) to the division of property, on the basis you may have greater future needs than that of the other party.

  1. Just and Equitable.

Finally, is the division of property “just and equitable”? Is the outcome fair?

To summarise, your entitlements in a property settlement are not determined by the cause of the relationship breakdown. The belief that you are entitled to the house because your ex cheated…is merely a misconception.

If you would like advice in regards to divorce or with respect to the division of property you may be entitled to, contact Carr & Co (9322 8000) and make an appointment with one of our lawyers today.

 

Categories: News & Alerts, Perth Family Lawyers Information, and Property Settlement.