People separate for a wide range of reasons. Some of the more common causes of separation include financial hardship, mental health issues, lack of common interest, drug and alcohol related issues, domestic violence and a general desire to find greater happiness. Surprisingly, very few people cite adultery as the primary cause of separation. However, when adultery is in involved the daggers come out. As William Congreve famously penned in his play The Mourning Bride, “Heaven has no rage like love to hatred turned, nor hell a fury like a woman [or man] scorned…”
When meeting with a new client for the first time whose partner has strayed, it is not uncommon for them to declare all-out war on their ex-spouse. Comments such as “they’ll pay for this…”, “I will take them for everything…” (and many more colourful statements not appropriate for this publication) are all typical. Although such sentiments are entirely understandable, the cause or causes for separation are not relevant in Australia as our laws do not provide a person with compensation for their spouse’s wandering ways.
Whilst adultery is undoubtedly a terrible emotional blow for an aggrieved person to endure, it is an irrelevant consideration insofar as family law in Australia is concerned. When the Family Law Act was introduced in 1975, it established a ‘no-fault’ divorce system.
The Family Law Act was quite revolutionary at the time of enacted as it departed from previous law, and the laws existing in most countries at the time, where adultery was considered a ground for divorce. Working in conjunction with abolition of fault based divorce, was the introduction of a defined framework for determining a property settlement – which similarly makes no provision for considering the cause of separation.
Once upon a time, it was not uncommon for family lawyers to have private investigators follow suspected adulterers to gather evidence of their follies to establish fault and provide a valid ground for divorce. This evidence would then be used to gain advantage in the legal battle that would invariably follow. Whilst this may have provided some sense of revenge to the aggrieved spouse (and a more interesting work day for family lawyers), it only served to paint a one-dimensional picture of the cause of separation.
The introduction of the no-fault system was designed to reduce hostilities in the courtroom surrounding the issue of fault. However, it has also served to avoid peeling back layer upon layer of the old onion when dealing with the issue of adultery, which is more often a symptom of a failing relationship and not the cause.
Husband: “my wife cheated on me…”
Wife:“my husband is distant from me and we don’t talk. I found someone who listens…
Husband:“I don’t talk to my wife because she belittles me, she puts too much pressure on me about money…”
Wife: “I don’t put pressure on him… I think he feels guilty he hasn’t done better…”
Husband:“I could have done better but my wife wouldn’t move to Sydney with me to take up a promotion…”
And the story goes on…
The reality is the relationship was probably over a long time before the wife strayed.
Although adultery is one of the most difficult experiences for a person to overcome, it is important not to let the raw emotion of it cloud decisions when entering the family law arena. The simple fact is fault will not be considered as part of the process and it won’t influence the outcome financially or otherwise.
Revenge, spite, fury and all the other feelings that naturally come with having your spouse commit adultery will only serve to protract and add significant cost to resolving matters legally.
An experienced family lawyer will not only keep their client focused on the relevant considerations, but they will also work hard to defuse the emotion involved and keep the proceedings as clinical and commercial as possible. Perhaps the worst thing a lawyer can do is ‘buy into’ the dispute and emotion of the dispute. Such conduct by lawyers will cloud objectivity and steer the matter away from resolution, the only consequence being additional time and cost spent – which hardly seems like a victory.
Having helped people through this process on too many occasions to count, I can quite confidently say the adage “the best revenge is living well” is hard to beat.