I am often asked, “my husband/wife cheated on me. Does his/her affair affect my property settlement entitlements?”.
Unfortunately, there is no simple answer to this and should ensure you obtain specialised legal advice in relation to your rights and obligations if you find yourself in this situation.
Having an affair does not necessarily have negative connotations in the eyes of the Court.
However, there are a handful of instances where an affair may have an impact on the outcome of a financial settlement.
The act of having an affair in and of itself is not considered by the Courts. However, if your former spouse had an affair, their behaviour may be called into question.
If your former spouse made financial decisions with or for the person whom they shared an affair with, this may impact a property settlement. Behaviours that are relevant may include expenses paid for the person whom they are having an affair with, excessive spending on gifts or gambling.
If it can be demonstrated that your former spouse has been financially supporting the person they are or were having an affair with, this evidence may be used to support any spousal maintenance claim that you bring.
If it can be demonstrated that your former spouse has maintained the person whom they had an affair with, such as paying the rent for their apartment or gifting them a motor vehicle, it may be possible to quantify the monies spent and seek to have those monies ‘added back’ to the marital pool.
If it can be demonstrated that your former spouse used matrimonial assets in a reckless or negligent way, such as gambling, drugs or prostitution, it may be possible to have the monies spent deemed as ‘wastage’ and/or ‘added back’. Matrimonial assets are any funds or assets accumulated during the marriage/relationship (either in both parties names or in the individual name of one party).
