Is Adultery Against the Law in Australia?

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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 10th 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.

What happens if there are children?

When the parents of a child under the age of 18 separate they both continue to share equal parental responsibility for the child, except when a court decides it is in the best interests of the child to remove parental responsibility from one or both parents. Parental responsibility applies regardless of whether the child’s parents were ever in a relationship, married, de facto or otherwise.

‘Equal shared parental responsibility’

For the purposes of family law in Australia, anyone who is the parent of a child under the age of 18 years is said to have ‘parental responsibility’ for that child, even if the relationship arises through adoption. The responsibility remains regardless of any change in the relationship between the child’s parents, such as marriage, re-marriage, separation, or divorce.

‘Parental responsibility’ is a legal duty, and a person with parental responsibility for a child is responsible for all matters relating to the care, welfare and development of a child. This includes decisions with regard to the child’s schooling, cultural upbringing, health, and living arrangements.

It’s important to note that equal shared parental responsibility is not the same as equal time with the child or children, which is usually something families need to work out themselves – where the child will live, and how often they will spend time with the other parents. If this cannot be done amicably between separating parents, with the help of their legal advisors, then the courts need to get involved.

If you’re separating or getting divorced, it is best to seek some legal advice. If there are children under the age of 18 involved, then it is necessary to understand your rights, and the rights of your child or children, who under Australian family law, have a right to enjoy a meaningful relationship with both their parents, and to be protected from harm.

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Sonia Hickey

Sonia Hickey is a freelance writer, magazine journalist, and owner of 'Woman with Words'. She has a strong interest in social justice and is a member of the Sydney Criminal Lawyers® content team. Sonia is the winner of the Mondaq Thought Leadership Awards, Spring 2022.

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