Leslie Massey
Adultery is not a crime in Australia. Under federal law enacted in 1994, sexual conduct between consenting adults (aged 18 or older) is considered a private matter, regardless of marital status. However, while not illegal, infidelity can have various emotional and practical implications during divorce proceedings, including property settlements and parenting arrangements. Additionally, in certain contexts, an affair can be deemed coercive control or family violence, which is a criminal offence in some Australian states.
| Characteristics | Values |
|---|---|
| Is having an affair illegal in Australia? | No |
| Is having an affair considered immoral in Australia? | Yes |
| Is having an affair a ground for divorce in Australia? | No |
| Can having an affair impact property settlements? | Yes |
| Can having an affair impact child custody? | No |
| Can having an affair be considered coercive control? | Yes |
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What You'll Learn
Adultery is not a crime in Australia
While adultery is not a criminal offence, it can have legal ramifications in divorce proceedings. For instance, infidelity can impact property settlements, especially if the adulterous spouse has spent matrimonial funds or assets to conduct the affair, which is known as "wastage". However, Australian courts typically do not favour one party over the other simply because of adultery. Child custody and entitlements are also generally unaffected by infidelity, with the Family Act directing the court to consider the best interests of the child, such as maintaining a meaningful relationship with both parents and protecting them from harm.
It is important to note that affairs can sometimes be considered a form of coercive control or family violence, depending on the context and impact of the affair. If an intervention order is in place, an affair could constitute a breach of the order and result in criminal charges.
In conclusion, while adultery is not a crime in Australia, it can have legal implications in divorce proceedings and may be considered coercive control or family violence under certain circumstances.
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Adultery is not grounds for divorce in Australia
Adultery is not a criminal offence in Australia. Under federal law, sexual conduct between consenting adults is considered a private matter, regardless of marital status.
Historically, Australian divorce law was based on a conservative interpretation of Christianity, specifically Jesus Christ's statement in the Bible that sexual immorality should be the only ground for divorce. Prior to 1975, a spouse seeking a divorce was required to prove one of 13 fault grounds, including adultery, insanity, imprisonment, and habitual drunkenness, or otherwise wait five years. This often involved the employment of private investigators to gather evidence.
In 1975, the Whitlam Labor Government introduced the Family Law Act, which established the principle of no-fault divorce. This removed adultery as a ground for divorce and instead made a 12-month separation period the only requirement to prove the irretrievable breakdown of a marriage. This reform simplified the divorce process and reduced the need for salacious and expensive court proceedings.
While adultery is no longer a ground for divorce in Australia, it can still have legal ramifications. Adultery can be considered a form of coercive control or family violence, particularly when it involves emotional manipulation, financial control, or physical abuse. Additionally, in certain situations, adultery may impact property division during divorce proceedings if it results in significant financial wastage. However, these instances are rare, and infidelity typically has minimal impact on the legal outcomes of divorce.
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Affairs can be a form of coercive control
Adultery is not a crime in Australia. Under federal law enacted in 1994, sexual conduct between consenting adults is considered a private matter throughout Australia, regardless of marital status. Australian states and territories previously repealed their respective adultery criminal laws, and in 1975, Australia changed to no-fault divorce, abolishing adultery as grounds for divorce.
While having an affair is not illegal in Australia, it can be a form of coercive control, which is a type of family violence. When one partner engages in an affair, they may be exerting power and control over their partner by betraying their trust, manipulating their emotions, and causing emotional harm. The affair can be used as a tool to control the other partner's behaviour, emotions, and choices by threatening to leave them or using the affair to manipulate and gaslight them. Additionally, the affair may involve physical or sexual coercion, further reinforcing the power dynamics in the relationship.
The Courts only need to be satisfied on a balance of probabilities that coercive control has occurred in Intervention Order applications. Emotional manipulation, financial control, and/or physical abuse may constitute coercive control. For example, in a case study, a husband cheated on his wife and told her he was feeling neglected and lonely since the birth of their child. He said he would continue to cheat as long as the marriage didn't fulfil his needs. The wife's self-esteem deteriorated, and she felt compelled to try to win back his affection, even in ways that didn't bring her joy. The Court deemed this emotional and psychological manipulation, warranting an intervention order against the husband on the grounds of family violence.
While coercive control or having an affair are not criminal acts in Victoria, if committed when an intervention order is in place, this behaviour could breach the order and result in criminal charges. In Tasmania, as well as NSW from July 2024 and QLD from 2025, coercive control is considered a criminal offence.
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Infidelity rarely impacts legal issues related to divorce
Adultery is not a crime in Australia. Under federal law enacted in 1994, sexual conduct between consenting adults (18 years of age or older) is considered a private matter throughout Australia, irrespective of marital status. Australia changed to no-fault divorce in 1975, abolishing adultery as grounds for divorce. Affairs can, however, be a form of coercive control (i.e., family violence), depending on the context and impact of the affair, together with the intention of the person having the affair.
While infidelity is one of the most challenging breaches of trust to forgive in a relationship, it rarely impacts the legal issues related to divorce. Divorce proceedings are highly emotional, and while the faithful spouse may feel that the other deserves nothing, the courts do not feel the same. With the prominence of no-fault divorce, blame rarely has any bearing on the dissolution of the marriage.
The distribution of assets is rarely impacted by infidelity unless it can be definitively proven that marital assets were spent on the paramour. Infidelity will also not influence custody determinations as long as the affair was not exposed to the children. Alimony is the only other area that may be affected by infidelity, but this depends on the state laws and the discretion of the judge. A cheating spouse may lose their right to alimony if infidelity can be conclusively proven, even with a no-fault divorce.
In cases where there are young children (typically 13 years old and younger) involved in the suit, the court may punish the cheating spouse for their infidelity. The first question the court may ask is whether the cheating spouse's lover has been in the presence of the children. If they have, the court may issue sanctions (if in violation of a previous order) or a restraining order.
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Infidelity can impact property settlements
In Australia, while adultery or cheating on your spouse is not a criminal offence, it can have legal implications, particularly when it comes to property settlements during divorce proceedings. Infidelity can impact property settlements, and this is an important consideration for those going through a divorce or separation. Here's how:
Australian family law recognizes that the breakdown of a marriage or de facto relationship is almost always accompanied by significant emotional distress and financial upheaval. When one party has been unfaithful, these difficulties can be compounded, affecting not only the emotional and psychological well-being of the parties involved but also their financial stability.
During property settlement proceedings, the court will consider a range of factors to ensure a just and equitable outcome for both parties. While infidelity is not a determining factor in itself, it can impact the weight given to other considerations. For example, if one spouse has engaged in reckless spending or has deliberately reduced their earning capacity to support their affair, this may be taken into account when assessing the financial contributions of each party.
Additionally, infidelity may impact the future needs of the parties, particularly if the unfaithful spouse has incurred significant expenses related to their affair, such as gifts, travel, or establishing a separate household. These expenditures may be considered by the court when determining the financial resources and future financial needs of each party, potentially affecting the division of property and spousal maintenance arrangements.
In some cases, infidelity may also impact the court's view of the non-financial contributions of each spouse. If one spouse has been primarily responsible for caring for children or supporting the other spouse's career or education, their efforts may be given less weight if infidelity has impacted the stability and harmony of the family unit. This could result in a more equal division of property or a larger settlement for the wronged spouse.
It is important to note that the impact of infidelity on property settlements will vary depending on the specific circumstances of each case. While infidelity may be a relevant factor, it is not automatically grounds for a larger settlement or a more favourable outcome. The court will always prioritize the best interests of any children involved and aim for a settlement that reflects the unique circumstances of the couple.
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Frequently asked questions
No, having an affair is not illegal in Australia. Under federal law enacted in 1994, sexual conduct between consenting adults (aged 18 or older) is considered their own personal and private matter, regardless of marital status.
Yes, you can file for legal separation and divorce in Australia if your marriage has irretrievably broken down, which can be evidenced by a separation period of at least 12 months. However, adultery is not grounds for divorce, as Australia follows a "no-fault" divorce system.
Infidelity rarely affects the legal issues related to divorce or separation. However, cheating can sometimes be considered in property settlements if the adulterous spouse has spent matrimonial funds or assets to conduct the affair, which is known as "wastage".
Yes, an affair can be deemed coercive control (i.e., family violence) depending on the context, impact, and intention of the person having the affair. If an intervention order is in place, the affair could constitute a breach and result in criminal charges.
No, you cannot take legal action against the person your spouse had an affair with. While some countries have "homewrecker laws", allowing legal action against the third party, Australia does not have such laws.
