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Making a cheater pay... is it worth it?


It’s an unfortunate reality that cheating is a common reason for couples separating today. If cheating doesn’t immediately result in the end of a relationship, it often causes significant distrust which eventually leads to the breakdown of the relationship.

As lawyers, we often have clients who are deeply hurt by their former partner’s cheating, and who ask whether this comes into consideration when negotiating the division of their assets, or the arrangements for their children. Often, clients want to see their ex pay for the hurt they have caused, and seek to use the Family Law system to do so.

However, while many people will agree that cheating is morally reprehensible, the Family Law legislation, and the Courts, do not punish someone for cheating.   

The Family Law legislation provides only one ground for Divorce, being that the relationship has irretrievably broken down. Why the relationship broke down is irrelevant – laying blame on either party would be reverting to the old system  It also does not affect the division of property.

So, yes – while cheating can be seen as awful. a cheating ex will not receive less in a property settlement, and the Court will not punish them for it. Often those seeking revenge by dragging their cheating ex through the Family Law system can  receive a costs order against them.  That is, they then have to pay some of their ex’s legal costs, because it can be shown that they deliberately put them through the expense of arguing certain issues.

Usually, the Family Court will not become involved in complaints about cheating. However, if the cheating was intermingled with some financial element – for example, sending large amounts of money to a secret partner; funding extravagant holidays or buying gifts – then you may have an argument that your cheating ex has wasted assets of the relationship. Whether or not such an argument holds up will depend largely on the strength of the evidence available. You would also need to demonstrate your cheating ex was reckless or negligent in their spending, which was not for joint purposes or the advancement of joint assets.

In terms of parenting, the Court recognises that, in most cases, the children’s best interests are served by having a meaningful relationship with both of their parents. Cheating is highly unlikely to be considered a reason to keep children from a parent.  If a parent seeks to prevent their children from having a relationship with the other parent, purely because they cheated, they risk having allegations made against them that they are alienating the child, and preventing them from having a relationship with the other parent.

As always – each case depends on its own facts. But the take home point here is that, by trying to make your ex pay for their cheating behaviour, you may end up paying yourself.


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Monday, 08 March 2021

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