In family law, the term broken heart law Australia isn’t a formal legal term but rather a colloquial expression that captures the emotional turmoil and potential legal ramifications of infidelity in a marriage.
Contrary to what the name might suggest, Australian law does not provide a legal avenue to pursue damages for the emotional distress caused by a spouse’s adultery.
The No-Fault Divorce and Infidelity
Since the Family Law Act of 1975, Australia has recognised no-fault divorce, meaning that the court does not consider who was responsible for the breakdown of the marriage.
This shift was a move away from the previous fault-based system that required proof of wrongdoing, such as adultery, for a divorce to be granted.
🔑 Key Takeaway: The no-fault divorce system simplifies the process and reduces the emotional strain of proving misconduct, ensuring that personal grievances like infidelity do not cloud the legal proceedings.
Property Settlements and Adultery
When it comes to dividing assets post-divorce, the court’s approach is to ensure a “just and equitable” distribution.
The focus is on various factors, including financial contributions, non-financial contributions, and future needs, rather than on who was at fault in the marriage breakdown.
🔑 Key Takeaway: Infidelity does not directly influence property settlements in Australia, as the law aims for a fair division of assets without considering marital misconduct.
Child Custody and Infidelity
How Adultery Has No Impact on Child Custody
It should be noted that adultery does not automatically disqualify a parent from receiving custody of the children.
The Family Law Act is gender-neutral and does not penalize any type of behaviour, including adultery.
Furthermore, because adultery is not a criminal offence, the court cannot punish a parent for it.
This means that when deciding who gets custody of the children, the court will consider a wide range of factors, including:
- The child’s relationship with each of his or her parents;
- The ability of each parent to care for the child;
- The willingness of each parent to facilitate a relationship between the child and the other parent;
- The wishes of the child, if they are old and mature enough to express them;
- Any family violence or abuse, as well as the consequences for the child.
If a parent’s adultery has not hurt the child or their ability to parent effectively, the court’s decision is unlikely to be influenced by it.
This means that when deciding who gets custody of the children, the court will consider a wide range of factors, including:
- The child’s relationship with each of his or her parents;
- The ability of each parent to care for the child;
- The willingness of each parent to facilitate a relationship between the child and the other parent;
- The wishes of the child, if they are old and mature enough to express them;
- Any family violence or abuse, as well as the consequences for the child.
🔑 Key Takeaway: The court prioritises the child’s needs over the parents’ personal lives, ensuring that custody decisions are made with the child’s best interests in mind.
Spousal Maintenance and Infidelity
Similar to property and custody matters, spousal maintenance is not directly affected by adultery. The court assesses the need for financial support based on factors like age, health, earning capacity, and what constitutes a reasonable standard of living.
🔑 Key Takeaway: The eligibility for spousal maintenance is based on financial necessity and fairness, not on the grounds of infidelity.
Also read: Financial Infidelity
How We Can Provide Assistance: Broken Heart Law Australia
As a law firm deeply versed in Australian family law, we recently assisted a client who approached us for guidance on filing for divorce from her cheating husband.
She was particularly interested in understanding the so-called “broken heart law Australia” and what steps she needed to take to move forward.
We explained that while the emotional pain of infidelity is real, Australian law operates on a no-fault divorce system, meaning her husband’s infidelity would not be the legal ground for divorce or affect the settlement.
Our role was to support her through the legal process, which involved preparing and filing divorce papers, outlining her rights, and what to expect during the proceedings.
We focused on ensuring a fair and equitable property division and addressed her concerns regarding spousal maintenance, always prioritising her well-being and the interests of any children involved.
Our comprehensive approach provided her with clarity and a pathway to a new beginning, free from the distress of her husband’s unfaithfulness.
Seek Professional Legal Advice
While the emotional repercussions of a “broken heart” due to infidelity are profound, the Australian legal system separates these personal issues from the legal aspects of divorce.
The no-fault divorce framework ensures that the end of a marriage, while personally challenging, is handled in a manner that is fair and unbiased by the courts.
In this complex emotional and legal landscape, seeking professional legal advice cannot be overstated. A knowledgeable family lawyer can provide invaluable guidance, ensuring that one’s rights are protected and that the legal process is navigated with clarity and strategic foresight.
Legal counsel serves as an essential ally in translating the intricacies of the law into actionable steps, offering support and advocacy to those facing the dissolution of a marriage.
Director of Melbourne Family Lawyers, Hayder manages the practice and oversees the running of all of the files in the practice. Hayder has an astute eye for case strategy and running particularly complex matters in the family law system.
