This is a very common question that family law solicitors encounter with respect of property settlement matters. “If they have cheated on me… am I entitled to further funds in the property settlement?”. Everyone has watched the TV shows or movies where private investigators are hired as a partner has a suspicion the other is cheating and they will go to all ends to obtain the evidence they require to prove it. It is posed that if the other is cheating they can obtain more upon separation or divorce.
If you were of the belief life is like a movie unfortunately you would be wrong. In Australia, the fact that someone has cheated does not make a difference with respect to the division of assets upon separation.
With respect to property settlement, there are no penalties or adjustments made to anyone in property settlements if there is” fault” in the breakdown of the relationship.
If the court were to move into the realm of providing an adjustment for “fault”, this would create further expense and difficulties to parties gathering evidence and ensuring that evidence complies with the rules of evidence. It would also be a very difficult process for the court to ascertain what the criteria for an adjustment may be if “fault” was involved and what percentage adjustment to one party or another would be.
Under the Family Law Act the general principles that a court considers in a property settlement matter are:
- Identify the Asset Pool – What are the assets of the parties that require division for the financial separation of the parties.
- Contributions – The court looks at what contributions each party made to the relationship and the level of these contributions whether they are of a financial, non-financial of a child rearing/home maker nature.
- S22 or 75 factors– The Family Law act lists a number of factors which are then considered, including the future needs due to the relationship breaking down. This can include the income of each party, lump sum payments, as well as the care of the children; and
- Whether the division is “Just and Equitable” – The court can only make orders in respect of property matters if, on the evidence presented it is satisfied that the resolution is one of a just and equitable nature for both parties involved.
There are some situations where the court would consider making an adjustment with respect of the behaviour of the parties. This is not with respect of one party cheating on the other, but in respect of one party being a victim to serious domestic violence throughout the relationship.
Overall, catching your partner cheating on you will not be a basis for you to receive more money in a property settlement matter. However getting on the front foot and seeing a family law solicitor can assist you in ascertaining your rights in a property settlement from the start.
Contact our Family Law Team today on (08) 8210 5400 to discuss what your rights are after separation with respect of the division of assets with your ex-partner.