Can you sue for divorce caused by a cheating partner in Australia? Short answer, ‘No’, sort of

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Changes were made to the Family alienation-of-affection-lawLaw Act in 1975 that did away with moralising about infidelity. Married partners now have to be legally separated for 12 months before they can seek a divorce.

Adultery no longer serves as legitimate grounds for divorce in Australia, and cheating spouses and their partners cannot be pursued legally for “emotional distress” or any other kind of loss incurred by the breakdown of a marriage.

There is some wiggle room when it comes to a property settlement in a divorce, where judges do make allowances for partners if one is found to have engaged in the “wastage of matrimonial assets” through gambling, the use of escort services or other extreme circumstances. The judge would have to find the spouse’s spending to be “wanton” and “excessive.”

According to lawyers engaging in these cases locally, it is generally not difficult to prove your case and come out victorious against your spouse’s lover.

All you really have to prove is that actions were undertaken to alienate affection that was there previously. The claimant doesn’t have to prove that the cheating partner even had intercourse as part of their affair.

However if they can prove intercourse, that can be another charge, which is called criminal conversation.

Many call this kind of legislation antiquated and archaic and say it should be abolished, but many appreciate the continuance of the centuries old laws. A local North Carolina lawyer did just that in 2010 releasing a statement praising a jury’s decision to award US $9 million to a woman who had used the laws to pursue her husband’s new lover.

“In an age when “the sanctity of marriage” is a political phrase, alienation of affection laws continue to protect the value of marriage. These cases tell those who would seek to damage another’s marriage that this is simply unacceptable.”

Some of the other arguments in favour of alienation of affection have to do with the financial loss incurred by divorce, where claimants can recoup after the fallout.

Some limitations have recently been placed on the laws, including a statute of limitations and that the proceedings must be filed before the divorce is finalised.

In the US, it is a different story

According to the “broken heart” law, if your husband or wife cheats on you and it ends in divorce you are able to sue for damages. And the payouts can be in the millions.

But the person you sue is not your ex-husband or wife. It’s the individual they had the affair with.

It’s called “alienation of affection”, a common tort law, which finds the “other man or woman” at fault for a failed marriage, and makes them pay damages for the love lost.

The law explains it like this: if that third person hadn’t come between these two, the marriage would still be together. So the jilted partner is able to sue for damages to their love lost, often due to an extramarital affair.

The law is most commonly associated with North Carolina in the USA. Similar versions of it are recognised across a number of US states including Hawaii, Mississippi, New Mexico, South Dakota and Utah. About 200 suits of alienation of affection are filed in North Carolina each year, with the vast majority settled out of court.

In 2011 a judge ruled that a husband’s mistress pay damages to a jilted wife to the tune of over $42.1 million.

Donald Puryear had reconnected with old flame Betty Devin at his father’s funeral in 2007 when she slipped him her phone number. Two years later in 2009 just before divorce proceedings were finalised with his wife Carol Puryear, she filed a civil lawsuit against Devin, citing “alienation of affection” caused by the actions of her husband’s mistress.

Superior Court Judge Carl Fox ruled in 2011 that Ms Devin, the new wife of Mr Puryear, pay more than $14 million (US $10 million) in compensatory damages and $28.1 million (US $20 million) in punitive damages to Ms Puryear, the former wife of the trucking company owner.

“For my client, it was not about the money,” Stephanie Jenkins, Ms Puryear’s lawyer, told the News & Observer at the time.

“It was about sending a message that people should be held accountable for their actions.” Apparently a defendant’s ability to pay does not come into account when awarding such a sum.

A similarly massive payment was ordered to Keith King, who founded a BMX Entertainment company. A judge ruled that his ex-wife’s lover Francisco Huizar III pay Mr King $12.35 million (US $8.8 million) for alienation of affection and “criminal conversation” with his then wife.

Five years after King married his wife Danielle King he discovered “flirtatious texts” with her lover. He said after that his marriage was “destroyed”.

“There’s not a doubt in my mind, and I’ve always said, “If it wasn’t for him. If it wasn’t for him.””

Huizar’s lawyer Cheri Patrick strongly criticised the ruling, calling the law “archaic” and saying the ruling “demeans the obligations of spouses in a marriage and should be stricken.”

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Categories: Alienation of affection, Compensatory damages, Divorce, Family Law Act, Infidelity, Marital Assets, Property
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