My clients often tell me why their marriage or relationship broke down. Frequently it is because they “grew apart” and hadn’t been happy for some time. Often it is because of clashes with family members, particularly the mother-in-laws (on both sides). Occasionally it is because one or both partners have been unfaithful.
I have had clients who have told me that they were unfaithful and they feel so guilty that they are willing to agree to anything by way of property settlement. They tell me that they feel like the whole thing is their fault and so they should be the ones to suffer financially, so as to not cause any more pain to their former partner. I am no psychologist, but I can’t imagine making such an emotionally fueled decision will reduce the guilt of the perpetrator or the hurt of the recipient.
Certainly the Family Court takes the view (and has done since 1975 when the Family Law Act came in) that the Court is a “no fault” system. The Family Court does not consider why people separated and who was at “fault”. This means that there is no financial penalty for the “leaving party”. So, for example, a partner who was unfaithful, and who left the home and started to live with another partner, will not be penalised by the Courts or, through the divorce process for their actions.
Certainly there is often a high level of guilt from “leaving” or “unfaithful” parties, and everyone is well advised to get legal advice so that serious decisions are not made based on emotion. Clear advice from an experienced Family Lawyer will assist people in making informed decisions.
We often see people in our Perth law firm who are very emotional and just want to “get it over with”. We also see people who were very emotional and did “get it over with” only to have them come for advice after they have signed documents and had orders made. Often we are not able to help these people as it is too late, and it can cost them tens of thousands or hundreds of thousands of dollars to take the matter to the Family Court and try and set aside the Orders and get new Orders.
Whilst infidelity does not change what the Family Court will do, it could change what you or your partner may do.
St Jerome said: “The scars of others should teach us caution.” Tread carefully with your final settlements as unwinding them is always difficult and often impossible.