I had an affair – can I get divorced now?

It has long been the case that fault or behaviour on the part of either person is not relevant to the granting of a Divorce in Australia. There is one ground for the grant of a divorce which is that a marriage has irretrievably broken down and the only evidence in support of that is that the parties have lived separately for at least 12 months prior to the application for divorce is made.

With regards to the basis for a property settlement, the conduct of either spouse is very unlikely to be relevant. (We often get asked if this is the case, and in the majority of situations, conduct is simply not a relevant factor).

Whilst the development of Australian law owes much to English law in this respect, there is a difference between the position in Australia and that in England and Wales. At the time of writing this article (July 2018), a case is proceeding to be heard in the High Court in England and Wales in which the wife is attempting to overturn on appeal the decision made by two lower Courts to refuse her application for divorce.

Marriage divorce

In this unhappy situation, the parties were married in January 1978 and they separated in February 2015. The wife applied for a divorce on the basis of her allegations of her husband’s unreasonable behaviour. In England and Wales a divorce application can only be made on one of five grounds which are;

1. Unreasonable behaviour;
2. Adultery;
3. Two years separation with consent;
4. 5 years separation without consent;
5. Desertion;

Even though the wife herself admitted that she had had an affair, she could not use that as the basis of her petition for divorce. She, therefore, alleged unreasonable behaviour on the part of the husband.

Both parties don’t agree…

However, the husband appears to take the view that he does not wish to be divorced, notwithstanding his wife’s conduct, and he has chosen to defend the application for divorce, so far with some success. The judge who dealt with the case in the first instance described the allegations of unreasonable behaviour as, and I quote, ‘anodyne, flimsy and lacking beef’. The Supreme Court of England and Wales is the highest Court and therefore the last chance for the wife to appeal the decision to refuse her application for a divorce.

Read More: How To Get Divorced Without Going To Court

Whilst there may be ways in which the Family Law system in Australia could be improved, at least in Australia it is not necessary for the parties to a marriage to make allegations of unreasonable behaviour or adultery if they wish to get divorced.

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For straightforward, down to earth honest family law advice, contact the team at Aylward Game Solicitors in Brisbane, Gold Coast, and Sunshine coast Office. Call 1800 217 217 for more information or advice on your matter.