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Family Law in Canberra – Ashley Madison, infidelity and ‘marital waste’

By September 16, 2015No Comments

In Australia, thanks to our no-fault divorce laws, the Ashley Madison hacking scandal is not making quite the same waves as it is in the US where adultery is still grounds for divorce. But even seeing a spouse’s name on the Ashley Madison site is probably not enough for most Americans to prove adultery–in some states of the US, it is necessary to prove actual sexual intercourse, which may not be quite as simple as just being able to link your partner to a cheating website. Americans, however, do have the concept of ‘marital waste’. As Forbes advises its readers:

“Document through credit card and bank statements how much money he spent on the site, and if he was successful, how much he spent having the affair (hotel rooms, gifts, dinners, etc.). This spending is called “marital waste,” which can be recaptured during the divorce proceedings. If he bought her a Cartier watch with marital money, he better be prepared to pony up at least half the cost.”

So are there any repercussions under Australian family law for cheaters and cheatees? While we don’t have the express legal term of ‘marital waste’ in our legislation, the practice of wasting marital resources can have consequences when it comes to property and asset distributions following a divorce.

If you can demonstrate through records and receipts that your spouse has wasted shared monies or assets on doing things or paying for services which are really not part of the ‘team effort’ this can impact on the ultimate settlement.

Courts are, however, reluctant to forensically examine parties’ spending during a relationship. A judge will usually not be interested in whether a bloke spent $1,400 on an expensive fishing rod, while the missus had too many pedicures and drinks with her girlfriend. However, if a guy spent $10,000 from the mortgage on a cruise with his new girlfriend, this can be taken into account generally as a factor under section 75(2)(o) of the Family Law Act (which covers the field by way of ‘any other fact or circumstance) which a court can take into account in order to achieve an equitable outcome.

Monies wasted used to be able to be ‘added back’ to the matrimonial asset pool. Generally now though an adjustment will sought to be made to reflect the wastage. In one notorious example, a wealthy Australian man who lavished $15m on his mistress was labelled ‘flagrant’ and ‘reckless’ by the Family Court, and he was ordered to sign over his assets worth about $4m to his ex-wife.

Do you need help dividing assets during a separation or divorce? Do you feel your ex-spouse has been wasteful or reckless with ‘joint’ assets? Please give Cristina Huesch or one of our experienced family lawyers here at Alliance Family Law a call on (02) 6223 2400, so that we can assist you to obtain the fairest possible outcome for you in your circumstances.



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