Is Adultery Against the Law in Australia?

At his father’s funeral in 2007, Donald Puryear bumped into an old flame – a woman he’d actually once promised to marry. And, in the midst of his grief, there’s no doubt that Donald was probably pretty surprised to see Betty Devin, because they had long since parted ways and Donald was now married to Carol. In fact, not long before his father’s death, Donald and Carol had celebrated their 10^th Wedding Anniversary.

But at some point during the day’s proceedings to honour his dead father, Betty slipped Donald her phone number. The rest, as they say, is history. Betty and Donald began an affair, and Donald separated from Carol several months later. Donald and Carol divorced in 2009.

Then, shortly before her divorce was finalised, Carol filed a lawsuit against Betty for ‘Alienation of affection’. She was awarded $30 million in compensation from Betty Devine by a judge in 2011.

Such lawsuits (also known “homewrecker” or “heartbalm” lawsuits), are possible in several states of America including Hawaii, Illinois, New Mexico, North Carolina, Mississippi, South Dakota, and Utah.

In one separate case in North Carolina, a jury awarded a wife $9 million from her cheating husband’s mistress after finding that the other woman ruined her 33-year marriage.

Alienation of affection lawsuits are usually filed against third-party lovers, but anyone who allegedly interfered with a marriage that ultimately ended, can be named as a defendant, such as parents, in laws, clergy members, and even therapists who recommended divorce to a deserting spouse.

Do ‘homewrecker’ laws exist in Australia?

Australians though, can breathe a sigh of relief. No such laws exist here, and unlike some States in the USA such as Massachusetts, Idaho, Michigan, Oklahoma, and Wisconsin where adultery is a criminal offence, cheating on your spouse is not illegal in Australia either.

‘No fault’ divorce

Under federal law enacted in 1994, sexual conduct between consenting adults – the age of adulthood in Australia is 18 years of age or older – is their own personal and private matter, irrespective of marital status.

Australia abolished adultery as a ground for divorce when it introduced The Family Law Act 1975. This Act established the principle of ‘no-fault’ divorce in Australian law and also ceased any ‘Alienation of affection’ actions.

‘No fault’ divorce means that a court does not consider which partner was at fault in the marriage breakdown. The only ground for divorce is the irretrievable breakdown of the relationship, demonstrated by 12 months of separation.

In Australia, either spouse can apply for a divorce, and an application can be made jointly or separately. There’s no need to attend court to finalise the divorce either unless, as a result of the marriage, there is a child or children under the age of 18 at the time the divorce was filed.

This shift fundamentally changed the way divorce was handled in Australia, and, white it has received broad support, its not without its critics.

Arguments For ‘No-Fault Divorce’

One of the strongest arguments in favour of no-fault divorce is the reduction of conflict it promotes. Prior to its introduction, divorce often involved lengthy legal battles where one partner had to prove the other was at fault – whether for adultery, abuse, or neglect. No-fault divorce eliminates this requirement, making the process smoother, less contentious and more focused on resolving practical matters like property division and custody arrangements.

No fault-divorce also gives individuals more control over their own lives. In cases where a marriage is no longer working, no-fault divorce allows both spouses to move forwards without being trapped in an unhappy or toxic relationship. This empowers both parties to make a choice that is in their own best interests and prevents any escalation of conflicts that could lead to criminal charges.

Without the burden of proving fault, spouses can be more honest and open about the reasons their relationship ended.

As a result, rather than focusing on the irretrievable breakdown of the marriage, conversations can be more constructive and beneficial for both parties. This is especially the case when children are involved, as it promotes a more cooperative co-parenting and better outcomes for families.

Arguments Against ‘No-Fault Divorce’

On the other hand, there are arguments that no-fault divorce leads to an increase in the rate of marriage breakdown, where there is now a diminished sense of commitment. Previously, individuals often felt a stronger obligation to work through difficult marital issues, especially since divorce was much harder to obtain.

It is also argued that by removing the need for justification, no-fault divorce is seen as undermining the sanctity of marriage. For those who view marriage as a lifelong commitment, no-fault divorce could be seen as reducing its seriousness, treating it more like a temporary arrangement rather than a binding legal and social contract. 

Another concern that is commonly raised is that it may lead to unfair property and alimony decisions. 

While there is no direct evidence that no-fault divorce increases divorce rates or unfair financial settlements, some worry that the law doesn’t always account for the emotional and financial contributions of each spouse. 

If one spouse feels wronged, whether through infidelity, no-fault divorce may seem to deprive them of fair compensation, particularly when it comes to property division and spousal support.

There are also religious connotations, namely that no-fault divorce breaks the idea of the lifelong commitment and sanctity of marriage when divorce is seen as an easier or more common option, which no-fault divorce laws can create.

What happens if there are children?

Previously, when the parents of a child under the age of 18 separate they both would continue to share equal parental responsibility for the child, except when a court decided it is in the best interests of the child to remove parental responsibility from one or both parents.

The Role of Safety and the Removal of the Presumption of Equal Shared Parental Responsibility ?

In recent years, amendments have been made to Australian family law to place a greater emphasis on the safety of children and their carers. The Family Law Amendment Act 2023 (Cth) repealed the presumption of equal shared parental responsibility and simplified the considerations for a court to consider.

Now, the best interests of the child take precedence over assumptions about equal time or shared responsibility. This change aims to ensure that legal decisions focus primarily on the child’s safety, especially in cases involving family violence. For example, if one parent is accused of family violence, or if there are concerns about the child’s safety with a particular parent, the court can prioritise the child’s safety over maintaining equal time with both parents.

While section 61DA of the Family Law Act (which allowed the presumption to be rebutted in cases of family violence) has been repealed, section 60CC(2)(a) now plays a central role. This provision explicitly requires the court to consider family violence and abuse when determining the child’s best interests. As a result, the safety of both the child and primary carer remains the top priority when making parenting orders.

The amendment reduces the legal obligation for parents to consult with each other when it is unsafe, granting the court more discretion to make decisions that protect both the child and the carer.

This is crucial for promoting safer, more flexible outcomes, particularly in situations involving family violence or other risks to the child’s well-being.

In short, the 2023 Amendment simplifies the legal process, ensuring that decisions are focused on child protection and allowing courts to prioritise safety over assumptions about equal time or shared responsibility. This isa significant step forward in family law, ensuring that the needs of children are always at the forefront of decision-making.

If you’re separating or going through a divorce, it’s important to seek legal advice, especially if children under 18 are involved. Understanding your rights, as well as the rights of your child, is essential. Under Australian family law, children have the right to a meaningful relationship with both parents, but also the right to be protected from harm.