One of the most common misunderstandings when it comes to family law is that the conduct of a party has relevance to divorce, property settlement matters or parenting arrangements. In most cases, this is not true.
Since 1975, when the Family Law Act was enacted, the family law system has been a “no fault system”.
That means it is not necessary to prove whose fault it was that the relationship ended.
Prior to this, there were 14 grounds for divorce in Australia. These included conduct such as habitual drunkenness, physical cruelty, desertion, adultery, imprisonment, etc, and proving these grounds were often difficult and nasty (imagine private investigators spying on people or taking photographs to prove an affair).
There is now no longer any need to establish grounds for divorce other than marriage has broken down irretrievably and the parties having lived separately and apart for a period of 12 months.
In parenting matters, the court’s paramount consideration is a child’s best interests. In deciding what is in a child’s best interests, the court considers (along with some 14 other additional considerations):
- the benefit to the child of having a meaningful relationship with both of the child’s parents; and
- the need to protect the child from physical or psychological harm from being subjected to, or exposed to, abuse, neglect or family violence.
The court will consider the conduct of the parties when required to make a determination about whether a child needs protection from physical or psychological harm; the most common situation is where allegations of domestic violence are made.
Many people believe that if their ex has an affair, they should not be able to spend as much time with the children because they may not be a morally good influence.
While there is the additional consideration of “any other fact or circumstance that the court thinks is relevant”, it is highly unlikely that cheating, as an example, will be a relevant factor in the court considering what is in the best interests of a child.
Additionally, if parents become too overwhelmed with blame and fault, this can sometimes be projected onto children themselves. The parent who involves the children in these “adult issues” or vilifies the other parent’s conduct is more likely to be the one criticised by the court for doing so.
It may also inform the child’s views about spending time with that parent, but the court would still weigh this against the primary consideration of the benefit to the child of having a meaningful relationship with both of the child’s parents.
Some people also believe that they are entitled to a larger share of the property pool to compensate for their ex’s poor conduct. However, it is not the job of the court to impose punishment for conduct in a relationship as family law is not punitive.
In considering what order (if any) should be made in property settlement proceedings, the court takes into account factors set out in the Family Law Act.
While there is provision for the court to consider “any fact or circumstance which, in the opinion of the court, the justice of the case requires to be taken into account”, only in very limited circumstances would this include conduct of a party during a relationship?
Some examples of the type of conduct that can be relevant in some very limited circumstances is as follows:
- family violence – in these situations, one party’s violence has made the other party’s contributions to the property pool, or welfare of the family, more arduous; and
- losses from reckless or negligent conduct – this would include deliberately destroying an asset or behaviour such as removing or hiding property without adequate explanation, and the judge will retain a broad discretion as to how such conduct will affect the distribution of assets.
Generally, a court will consider that you take your partner as they are; frugal or not. However, in some circumstances, it may be possible to argue “negative contribution” due to excessive spending habits or bad money management. While this type of behaviour is often interpreted differently, it will usually come down to a question of degree in the context of the amount of property available for distribution.