Does cheating affect divorce settlements in Australia?

Most people assume that if a relationship ends because of cheating, the financial settlement will (or even should!) somehow reflect that wrongdoing. And popular culture agrees. But in reality, that’s just not how Australia’s divorce law works.

Under Australia’s no-fault divorce rules, blame doesn’t typically play a part in how much of the money you get after your divorce. Instead, your property will be divided based on each person’s contributions to the property pool and their future needs, regardless of how or why the relationship ended. Even if it ended because one party did something wrong.

This often takes separating couples by surprise. They assume that the legal process will take cheating into account. But while cheating isn’t a legal factor in the divorce itself, or in the property settlement, certain financial or parenting impacts that come up because of the affair may play a part in what you ultimately walk away with.

How does infidelity impact property settlements?

So now we know – infidelity doesn’t directly affect property division. Instead, the Court will look at the same factors in a property settlement that it always does, whether or not there’s cheating involved.

These factors include each party’s financial contributions, including income, assets, and superannuation; non-financial contributions, including caring for children and household duties; and future needs, such as health factors and the ability to earn a living. And whether or not a party has cheated is not taken into consideration, even if it has caused significant emotional impact.

Cheating can indirectly affect a settlement

Even though cheating isn’t taken into account directly, the conduct and behaviours that arise because of the affair might impact the settlement indirectly. This is primarily true in three situations:

1. Where it affects shared or joint assets that belong to both parties.
2. Where it impacts financial transparency (such as when assets have been hidden).
3. Or where it affects the couple’s children’s well-being.

1. When shared assets have been used for the affair

If your ex uses money that belongs to both of you – these are joint or shared assets – in the affair, this may be taken into account during the settlement process. 

This might include paying for hotel rooms or flights, buying gifts like jewellery or clothes, paying for dating subscriptions, or taking the non-marital partner out for dinner or on dates. It could also include transferring money directly to the new partner or having secret accounts where they’ve hidden away money to use in the affair.

In these cases, the Court will consider whether this spending is ‘wastage’ – or the reckless disposal of assets. While the Court no longer uses ‘add-backs’ to put the spent money back into the property pool, they can make adjustments to the final settlement amount. And, if you can provide evidence, the Court may adjust the settlement to reflect the impact of that spending as part of assessing contributions and future needs. 

It is important to recognise that the Court isn’t giving your ex a consequence because of their bad behaviour. They’re simply seeking the fairest outcome for all the parties.

2. When behaviours around the affair have impacted financial transparency

Infidelity can sometimes coincide with financial secrecy. And it’s this lack of transparency (not the affair itself) that can influence the settlement. This could include situations where your ex has:

• Concealed bank accounts or redirected income
• Withdrawn funds without agreement or explanation
• Transferred assets to a third party (in the case of an affair, this might be the new relationship)
• Failed to disclose money spent on the relationship
• Moved savings into personal accounts prior to separation
• Sold joint assets and retained the proceeds

In these cases, the issue is the misuse or concealment of assets, which has reduced the available property pool for division. 

If you can prove the behaviour and the impact, the Court may adjust the final financial settlement to take that conduct into account 

3. Where behaviours around the affair impact the well-being of your children

Cheating doesn’t automatically affect parenting arrangements because the Family Law Act doesn’t assign blame. That being said, the Family Law Court will always act in the best interests of the child when making parenting arrangements, such as who has custody or pays child support.

However, behaviours that have come out of the affair and have impacted the well-being of your children may be relevant to how your finances are ultimately settled. For example, if the affair has led to one parent neglecting their parental responsibilities, exposing the children to unsafe environments, contributing to conflict, abuse or family violence, disrupting the children’s sense of security, or creating unstable living arrangements, then these will likely be relevant to your financial settlement.

Again, the legal concern here is not the adultery itself. The law doesn’t care. But it does care about the real impacts on your children. 

Do you need to prove infidelity to get a divorce or a financial settlement?

You absolutely don’t need to prove that there’s been infidelity to get a divorce. Australia has a no-fault divorce system, so you only need to prove that you’ve been separated for at least 12 months. 

However, you could be required to provide proof during a financial settlement if you believe your ex-partner has wasted assets, hidden money or acted in a way that impacts their ability to parent. If you make any of these allegations, you will likely need to provide proof that they happened. 

As a side note, always be careful about how you gather your evidence. Screenshots, private recordings or private messages might not be admissible as evidence if they were obtained illegally or if they breach privacy laws. The best path forward is to seek legal advice from a divorce lawyer before collecting or presenting evidence.

Navigating settlement discussions after betrayal

It’s sometimes challenging – even very challenging – to manage settlement discussions when you’ve been betrayed. You might feel angry or blindsided. You might even want revenge or feel a need to ‘settle the score’. 

These reactions are common and understandable, but they can also derail you from getting your best outcomes. If you make decisions that are driven by anger, rather than strategy, it could impact your ability to negotiate, prolonging the separation process and increasing your legal costs and your time in the Court system (if necessary).

On the other hand, if you approach your property settlement with a clear plan and an understanding of how the law actually treats financial division, you’ll be in a much stronger position – both legally and financially – in the long term. 

If you find that the emotional impact of the affair is affecting your ability to negotiate or communicate constructively, there are lots of ways you can get support. Start with our team, who can help you understand your rights and options. And consider getting support from counsellors or mediators so you can focus on your long-term security rather than the pain of the situation.

This isn’t about accepting the infidelity. It’s about making sure you’re in the best position to get the financial division you deserve. 

How a lawyer can strengthen your financial position after infidelity

Even though cheating doesn’t usually determine how your assets will be divided, the financial and emotional fallout can make the entire process more complex. Getting legal advice early can help you better understand your rights so you can protect your assets (and future). 

Our team of family lawyers works nationwide and can help you identify and trace any money that might have been concealed, given away, or spent outside the relationship. We can then help you assess whether any of that spending could be classified as wastage (reckless use of joint assets) and assist you in gathering and presenting your evidence so that it’s admissible.

Finally, our family lawyers can help you negotiate a financial settlement that fairly reflects both your contributions and future needs and arrange for the agreement to be formalised through consent orders or Court proceedings (if needed).

With professional and empathetic guidance, we can help make the process more structured, less reactive and better for you in the long term, despite the emotional upheaval you might be feeling right now. Get in touch with our team. 

Frequently asked questions

Is dating while you’re separated (but not divorced) considered cheating?

Not legally. However, if joint funds are used to support the new relationship, then that spending may be examined during property negotiations until your financial settlement is finalised.

Does an affair change the outcome of a divorce?

No. Australia has a no-fault divorce system, so one person’s affair will not be taken into account. In fact, the law doesn’t even think about who caused the breakdown of the marriage. You only need to show that you’ve been separated for at least 12 months.

My partner cheated? How will this impact how our assets are divided?

Cheating won’t directly influence how your assets are divided. But it can have an impact indirectly. Financial behaviour linked to the affair – such as significant spending on the new relationship or the concealment of assets – might lead to an adjustment to how the assets are ultimately divided based on contributions or future needs.

Do I need proof of cheating to protect my financial interests?

No and yes. You don’t need proof of cheating to get a divorce or a financial settlement. But you do need proof if you’re alleging misconduct or seeking compensation for wasted assets. You will need to provide proof of that waste, typically by showing proof of the affair.