The short answer is no.
Finding out your partner had an affair is devastating enough without also wondering whether the law will at least recognise the unfairness of it in your property settlement. Most people assume it will. Popular culture certainly assumes it will. But in reality, that’s just not how Australian family law works.
The idea of divorce is a difficult topic to think about, and when infidelity is involved, it can make the situation even more challenging. It’s normal to have questions about the impact of an affair on a property settlement. Will it give you more entitlements to assets?
Or will it affect spousal support payments? This article explores these questions and gives you the real picture, including the situations where infidelity-related behaviour can matter, even if the affair itself doesn’t. If you’re weighing up next steps right now rather than just researching, speaking with an experienced divorce lawyer Gold Coast families trust can help you understand the legal process before you go any further.
Australia’s No-Fault System
In Australia, the family courts have a no-fault jurisdiction when it comes to separation. No, an affair does not automatically mean you get a larger share of the property settlement. This means the court will not consider infidelity as a factor in property settlements or spousal support.
The court’s primary objective is to divide property and assets fairly between the parties, based on financial contributions, non-financial contributions, future needs, and more, regardless of whether the relationship was a marriage or a de facto relationship.
You also don’t need to prove infidelity to get a divorce. Australia’s no-fault system only requires proof that you’ve been separated for at least 12 months, nothing more.
What Does the Court Consider Relevant?
- What property is in the property pool
- The assets each party brought into the relationship at the start
- The parties’ respective contributions, both financial and non-financial
- The parties’ future needs
- Whether the outcome is fair and just, given the overall circumstances
Since reforms that took effect in 2025, this four-step approach, identifying the pool, assessing contributions, considering future needs, and checking for a just and equitable outcome, has been written directly into the Family Law Act itself, rather than sitting purely in case law.
Infidelity has no place in any of these four steps. Affairs almost never affect the settlement directly, and having an affair does not hold much weight with the court on its own, however painful it may feel to hear that.
When Infidelity Can Indirectly Affect a Settlement
Here’s the part most people don’t realise, and it’s genuinely important. While infidelity won’t directly impact your property settlement, an affair can have an impact on the outcome of a property settlement indirectly, through three specific situations.
When shared assets have been spent on the affair.
If your ex used money belonging to both of you, hotel rooms, flights, gifts, dating subscriptions, or dinners with the other person, this spending can be examined as potential wastage, the reckless disposal of joint assets. Following the 2025 reforms, the court no longer uses a formal “add-back” approach to literally return spent money to the pool on paper, but it can still adjust the final settlement to reflect that spending when assessing contributions and future needs.
The court isn’t punishing bad behaviour here, it’s simply working toward the fairest outcome once that spending is accounted for. This is exactly the kind of situation a binding financial agreement put in place beforehand can help avoid entirely, by setting out how assets are treated well before any dispute arises.
When the affair coincides with financial secrecy.
It’s the lack of transparency, not the affair itself, that influences a settlement. This can include concealed bank accounts, redirected income, unexplained withdrawals, assets transferred to a third party, or savings quietly moved into personal accounts before separation.
If you can prove this kind of concealment, the court may adjust the settlement accordingly.
When it affects the children’s wellbeing.
The Family Law Act doesn’t assign blame for a relationship breakdown, but the court always acts in the best interests of any children involved. If behaviour connected to the affair led to neglect, unsafe environments, exposure to conflict, or instability for the children, that impact can become relevant to the overall financial outcome, not because of the affair, but because of its real effect on the kids.
Our child custody team regularly works through exactly these kinds of situations with clients.
Do You Need Proof of the Affair Itself?
No, and this matters. You don’t need to prove infidelity happened to get a divorce or to reach a financial settlement. You may, however, need evidence if you’re alleging wastage, hidden assets, or conduct that’s affected the children, since these are the things that can actually move the needle.
Be careful how you gather that evidence. Screenshots, private recordings, or intercepted messages may not be admissible if they were obtained illegally or in breach of privacy laws, and evidence obtained this way generally can’t be used to support your case regardless of how compelling it feels.
Speak with a lawyer before collecting or presenting anything of this kind with our own, Kirsten Lesina and Caralee Fontenele on our team can talk you through what’s actually usable before you gather anything yourself.
What About Dating While Separated But Not Yet Divorced?
This comes up often. Legally, this isn’t considered cheating, since you’re already separated. That said, if joint funds are used to support a new relationship during this period, before your financial settlement is finalised, that spending can still be examined the same way any other wastage would be.
Navigating Settlement Discussions After Betrayal
While infidelity won’t be considered a factor in the division of property and assets, it can still have a real impact on the negotiations themselves. It’s common for the emotional impact of infidelity to influence a person’s decisions and make them less willing to compromise.
This can result in longer, more costly legal proceedings, driven by hurt rather than strategy, our guide to cost-effective family law services covers practical ways to keep this from spiralling.
If you find that the emotional weight of the affair is making it harder to negotiate or communicate constructively, support is available. Counsellors and mediators can help you process the emotional side, while your legal team focuses on the practical side, so you’re negotiating from a position of clarity rather than anger.
This isn’t about accepting what happened, it’s about making sure you’re in the strongest possible position to get the outcome you deserve. Where complex property division is involved, having a clear head matters even more.
Get the Right Legal Advice
In summary, while infidelity won’t directly impact your property settlement or spousal support entitlements, it can still affect the negotiations, and in specific circumstances, the conduct around it can matter too. Seeking the advice of a family law expert can help you make informed decisions and achieve a fair settlement.
At our firm, we offer a free family law consultation to help you get started. During this initial consult, we’ll review your case, discuss your legal options, and provide an estimate of our fees. If you’d like to speak with someone directly, our experienced team is here to help you move forward.
This article is general information only and does not constitute legal advice. For guidance specific to your circumstances, speak with a family lawyer.
Frequently Asked Questions
Does having an affair affect divorce settlement?
Not directly. Australia’s no-fault system means the affair itself isn’t a factor the court considers when dividing property. However, behaviour connected to the affair, such as spending joint funds on it, hiding assets, or harming the children’s wellbeing, can indirectly influence the outcome through the usual contributions and future needs assessment.
Is cheating considered VAWC?
VAWC (Violence Against Women and their Children) is a term from Philippine law, specifically Republic Act 9262, and it isn’t part of the Australian legal system. Under Australian law, infidelity itself isn’t classified as family violence. If a relationship involves actual abusive or controlling behaviour alongside infidelity, that conduct may be relevant to a property settlement or a protection order, but that’s assessed under Australian domestic violence and family law, not the Philippine framework this term comes from.
What is the 80/20 rule in infidelity?
This is a popular relationship theory, not a legal concept, which suggests a partner might get around 80% of their needs met in a relationship and seek the missing 20% elsewhere, sometimes through an affair. Many relationship counsellors push back on this idea, since it’s often used to rationalise infidelity rather than genuinely explain it, and it has no bearing whatsoever on how an Australian court treats a property settlement.
How long do affair partners last after divorce?
Research on this varies, and most of it comes from overseas rather than Australia, but general findings suggest a relatively small proportion of affairs, often cited around 5 to 10%, lead to marriage, and of those, a majority don’t last, with several studies suggesting most end within a few years. These are general relationship statistics rather than legal findings, and they have no bearing on how your own property settlement will be decided.
