Do you need proof of cheating for divorce?

Finding out about a spouse’s infidelity can be devastating and often marriage-ending. Do you need proof of cheating for divorce? No.

Since 1975, divorces in Australia have been granted on a ‘no fault’ basis. This means that the party making the application does not need to prove ‘fault’ on the part of the other party. Under the no fault divorce system, a divorce application can be filed by either spouse. Alternately, a joint application for divorce can be filed by both spouses. In order to obtain a divorce, the applicant must prove only that the marriage has broken down irretrievably (Family Law Act, Section 48). This requires the parties to have been separated for at least 12 months and to have no prospect of reconciliation.

No fault divorce, property and children

Before 1975, the making of a divorce order involved a finding of fault. This meant that orders such as compensation or a favourable property settlement could flow from the grant of a divorce, based on one party being found to have breached the marriage contract. Under the no fault divorce system, other family law issues such as parenting orders and property settlements are dealt with in separate proceedings. Whether or not parties have been divorced (or indeed whether they were ever married) makes no difference to the outcome they will receive in matters concerning their children or their property. Likewise, who initiated the separation and whose ‘fault’ the failure of the relationship had little if any bearing on the outcomes received.

A limited exception to this exists where one party has been the victim of family violence perpetrated by the other party. In this situation, if the court finds that the victim was so severely impacted by the violence that his or her contribution to the marriage was made ‘significantly more arduous’, an adjustment will be made to the settlement to allow for this. This is known as the ‘Kennon’ adjustment.

In a parenting matter, orders will be made based on what is in the best interests of the children. In some cases, matters that would have fallen into the category of ‘fault’ in the past, such as habitual drunkenness or violence, may be taken into account and result in the guilty parent having less time with the children. However, this is considered on the basis of what is in the best interests of the children and not on the basis of any determination of fault in the relationship.

Call our team today at (03) 9793 7888 or send us an email at to organise an appointment with one of our family lawyers to discuss your separation. We also offer free 30 minute appointments on request for your peace of mind that you are in capable hands.