The answer to the above question is generally no.
The four step approach used in determining the respective entitlement of spouses in a marriage or de-facto relationship after divorce or separation does not provide for adjustment by virtue of a comparative assessments of each parties moral compass.
When seeking to resolve property disputes in the Family Court (or for that matter the Federal Circuit Court), and through negotiation or mediation in advance of going to Court, it is important from the very outset to focus not only on the relevant factors which bear consideration but it is equally important to exclude those factors which carry no weight and will have no impact on the property entitlements of either party.
An example of this is a spouse who has engaged in an extra marital affair and whilst the other spouse may suggest that it is morally reprehensible or corrupt and should be the basis for an adjustment or entitlement in their favour (which would essentially punish the “cheating spouse”) that is not the case and the Court will not make any adjustment solely on account of one party cheating.
There are certain examples where behaviour or conduct secondary or ancillary to an affair may be a relevant factor in determining property matters such as where there has been ongoing and severe Family Violence (eg prolonged and severe emotional abuse) or where there have been monies “wasted” by the souse to maintain the extra-marital affair. However these cases are rare and subject to detailed evidence being presented and assessed by the Court.
It is true that each case turns on its own facts but generally speaking as Family Law in Australia operates under the guise of a no fault system and in determining a “property split” that is Just and Equitable the Court will not have regard to whose “fault” it was that the marriage or de-facto relationship broke down.
It is important to bear that in mind from the start and avoid concentrating on those issues which are not relevant to the Court in determining the property settlement.
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