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Family Law

Adultery: Seeking damages for affairs

By August 4, 2017No Comments

By Gianna Huesch

Have you ever been cheated on by a spouse? You may wish our legal system was like that of Zimbabwe’s, where a woman has recently successfully sued another woman for “adultery damages”.  The married woman’s lawyers had served the other woman with notice she was committing an “actionable civil wrong” which “breached the lawfully guarded sanctity” of marriage.  The judge agreed the wife had “suffered distress, injury and personal insult” through the affair taking place, and said the damages award would “serve as an example that the courts frown upon such conduct”.

The Zimbabwean mistress’s bill of $8,000 is dwarfed, however, by the US$9million in damages awarded to a North Carolina, USA wife in 2010 after she sued her husband’s mistress.  North Carolina is one of about six US states to still recognise “alienation of affection” claims where spouses can sue other parties who have allegedly interfered in their marriage. (Note, such other parties might indeed be a lover, but interestingly can also be other parties, such as in-laws). Alienation of affection is the most enduring of the various, centuries-old heart balm laws, originally designed to provide remedies for the harm and stigma caused by romantic traumas. Most of these laws have long since died out, but some conservative states in the US have clung firmly to alienation of affection laws, not wishing to be seen to be “legalising adultery”.

In Australia, since 1975 at least, our courts don’t frown upon or moralise about the sexual behaviour of married couples. Adultery is not a legitimate cause for divorce here, nor can cheating spouses and their sexual partners be sued for emotional distress.

The only area where a cheated spouse may potentially legally gain back some compensation for their errant spouse’s behaviour is during the property settlement, where in certain limited circumstances, adjustments may be made based on spousal behaviour. While usually this relates to severe family violence situations, there is also the concept of wastage of matrimonial assets, where a spouse is shown to have wasted funds in the asset pool recklessly, negligently or wantonly, such as through expensive escort services or lavish spending on a lover.  The ‘guilty’ spouse may then see the court make an adjustment in the other spouse’s favour.

If you need assistance with a family law matter, please get in touch with Canberra family lawyer Cristina Huesch or one of our other experienced solicitors here at Alliance Legal Services on (02) 6223 2400.

Please note our blogs are not legal advice. For information on how to obtain the correct legal advice, please contact Alliance Family Law.

Read about the Zimbabwean case: http://www.marilynstowe.co.uk/2017/06/23/other-woman-ordered-to-pay-wife/

Read about the US case: http://abcnews.go.com/GMA/Business/wife-wins-million-husbands-alleged-mistress/story?id=10177637

Read more about heart-balm laws: https://verdict.justia.com/2017/03/14/cool-wind-blows-alaska-marriage-alienation-affections-claim-not-viable

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