Is adultery a crime in Australia? Is it a criminal offence? The answer is no. Australia's no fault divorce system which the federal law enacted in 1994 under federal law. Hence, you don't need to prove your spouse was at fault for the marriage to break down to get a divorce. This is a big change from the past where the aggravated party has to prove adultery, desertion or other grounds.
Now the only requirement is an irretrievable breakdown of marriage or marital status, proven by living separately for at least 12 months. The court focuses on moving forward not finding fault. So separate decisions are made for:
- Dividing property between spouses.
- Child custody and support (if applicable).
So whether you cheated or were cheated on, the divorce proceedings itself is the same. Read on to find out more about this article on "Is adultery a crime in Australia".
Read: Common Reasons for Divorce in Australia | JB Solicitors
Is Adultery a Crime: How Complicated Is It?
In this article on "Is adultery a crime in Australia" let's look at why it's a tricky issue in family law. Adultery laws are complex and it varies greatly depending on where you are. Here's a summary:
Adultery is different from theft because it doesn't involve taking something that belongs to someone else. When you steal, the victim loses possession of their property. In many places, people who commit adultery can be grounds for divorce. This can impact the division of assets and finances in the divorce settlement and potentially put the cheating spouse at a disadvantage.
Is adultery a crime in the US? While some US states technically classify adultery as a crime, they rarely prosecute it. In Muslim countries that follow sharia law for criminal justice, the punishment for adultery may be stoning.
This is because of privacy concerns and the growing acceptance that consenting adults have control over their own bodies. The law is about consent. If both married partners consent to outside sexual activity the law can't regulate it even if it breaches traditional marital expectations.
Marriage is now seen as a continuous agreement not an unbreakable vow. Either partner can choose to end sexual exclusivity within the marriage though social norms may not approve. Criminalising adultery would be a legal mess. Imagine the proof of how much warning is required before you can end exclusivity within a marriage!
In summary, while adultery can have big consequences in divorce, it's not a crime because of privacy and bodily autonomy within consensual relationships.
Making Adultery a Crime
There are good arguments for making adultery a crime. Some say it's a clear breach of contract. Marriage vows are seen as sacred agreements and adultery is a big breach of trust. This view is that someone who cheats is a hypocrite who has broken their commitment to their spouse.
Another argument is the obvious emotional harm adultery causes. The emotional fallout is huge for everyone in the relationship. The betrayed spouse feels hurt and disrespected. The cheater feels guilty and ashamed. Even a third person involved can feel emotional distress.
And finally some say adultery could be a gateway crime. The thinking is that someone who will cheat on their spouse might also lie or commit financial wrongdoings to cover their tracks.
Is Adultery a Crime: The Balance
The previous approach in many countries acknowledges the emotional harm of adultery but doesn't criminalize adultery. Instead it allows adultery to be a ground for divorce and potentially impact on the division of assets. Ultimately it's up to the individuals involved to decide to end the marriage.
Does Cheating Affect Property Split in Divorce?
In most countries infidelity can be a reason to get a better property settlement in a divorce. But not in Australia. Australian courts divide property fairly not punish a spouse for infidelity. This means the court won't automatically give you more money or assets just because your partner cheated.
But there's one exception: wastage. If the cheating spouse used marital funds (money or assets acquired during the marriage) to fund their affair this might be considered wastage. Wastage must be reckless or negligent.
The Children: How Does Divorce Affect Them?
In this article "Is adultery a crime?" let's talk about the children. When a couple with children separates the most important decisions are about the children. This includes where the children will live and how they will spend time with each parent. Regardless of infidelity the court prioritises the children's best interests which are:
- A meaningful relationship with both parents
- Protection from harm
So while infidelity can cause emotional chaos it won't necessarily impact on how the court divides property or makes decisions about the children. Click here to read more about family laws under the Family Law Act 1975.
Should You Get Legal Advice About Adultery Law?
Divorce is a complicated and tough experience for both the legal and emotional well being of couples. The couple is no longer married, most legal ties are dissolved. The Local Court or Supreme Court will divide the assets, debts and child custody (if applicable). They may also award spousal support depending on the circumstances and tax filing status changes.
Divorce is a stressful and emotionally draining process. Couples going through it often experience grief, anger, sadness and loneliness. Maybe that's why some separating couples ask themselves "Is adultery a crime or does it have legal consequences?" They may think that the grief and betrayal they feel in a cheating situation can lead them to charge their partner and get criminal justice. Unfortunately it's not possible.
Given the complexity of it all, it's best to get a lawyer who is familiar with the laws in your area. JB Solicitors can walk you through the process, protect your rights and make this difficult time a little easier. No one deserves to be cheated on but we also believe you shouldn't go through this alone.
Our family law team will handle the legal side with empathy and understanding. We will work hard during mediation sessions for disputed couples to get a fair out of court settlement. We will guide you through every step of the process so you can move forward with confidence and dignity.
The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.
