Dispute Resolution
can you sue your spouse for cheating

In Australia, you cannot sue someone for cheating with your spouse, nor can you sue your spouse for cheating. Cheating, or adultery, is not considered a criminal offence, nor is it a basis to sue someone. While there were laws in the past regarding cheating, they have been abolished for many decades and are completely inapplicable to divorce proceedings.

 

The only requirement to obtain a divorce in Australia is found in section 48 (1) of the Family Law Act 1975 (Cth), which states:

‘An application under this Act for a divorce order in relation to a marriage shall be based on the ground that the marriage has broken down irretrievably.’

 

Per section 48 (2) of the Family Law Act 1975 (Cth), an irretrievable breakdown is shown by the spouses being separate and apart from each other for 12 months prior to the divorce application being filed.

 

Spouses do not have to live in a separate geographical location to be considered separate and apart from one another; section 49 (2) of the Family Law Act 1975 (Cth) allows the spouses to be separate under one roof, meaning the 12-month period can be met without the occasionally burdensome process of moving out.

 

In Australia, we have what is known as ‘no fault’ divorce, which means neither spouse’s actions are responsible for the end of the marriage. The reason for divorce is treated as a private matter between the parties, which does not confer advantages or disadvantages to any particular party in a divorce application. Quite simply, the Court gives no weight to the reason why you separated.

 

It is worth noting that divorce is a separate process from property or parenting proceedings, where, depending on the circumstances, the individual actions of parties can bear some significance in the eyes of the court. Divorce is simply an administrative process, which, amongst other things:

  1. Allows a person to get married to someone else; and
  2. Sets a time limit to initiate property proceedings, being 12 months from the date of the divorce being granted.

If you require assistance with a matter relating to the division of property or care arrangements for children, you may be thinking of property or parenting proceedings. These are different from divorce proceedings and are significantly more complicated.

 

If you require assistance with your Divorce or Family Law Matter please contact our office on 1300 557 819 or admin@cityprosecutor.com.au to discuss your matter with one of our capable Family Lawyers.