Navigating the emotional volatility of infidelity is difficult, and it’s only natural for offended parties to seek redress. Australia’s unique legal structure for marital infidelity and its repercussions reflects the country’s history, culture, and legal development. Investigating the Australian legal position on the question of whether or not one can sue a third party for marital infidelity yields interesting findings.

Historical Context: Alienation of Affections & Criminal Conversation

In the past, a cheating spouse may file a lawsuit against their cheating spouse under existing law. The earlier English torts of “Alienation of Affections” and “Criminal Conversation” capture this concept well. Under the previous law, known as Alienation of Affections, a person—typically a husband—could sue another for having “stolen” his wife’s love and affection, causing the couple’s separation. Meanwhile, the more direct Criminal Conversation allowed a husband to file a lawsuit against an extramarital affair’s perpetrator. It was a legal action seeking compensation for harm done by the adulterous behaviour. Both of these wrongdoings sprang from the patriarchal system of the past, which treated women as possessions rather than equals. Such practices dwindled in legitimacy as time went on, and women won more privileges in society. Laws across the world, including Australia’s, have evolved to reflect a more progressive and egalitarian vision of marriage, moving away from these antiquated and problematic conceptions.

The Australian Family Law Act 1975

The divorce and family conflict landscape in Australia has changed dramatically since the passage of the Family Law Act in 1975. The ‘no-fault’ divorce idea was a cornerstone of its reforms. Before, divorce was only possible if one of the partners committed adultery or cruelty. But the 1975 Act changed things such that all that was needed was an admission that the marriage had failed irretrievably without assigning blame to either side. This meant that adultery, while nevertheless emotionally terrible, played no direct role in the divorce itself. In order to establish that their marriage was hopelessly broken, all that was required was a 12-month separation. To reflect a more contemporary and humanitarian perspective on divorce, the Australian Family Law Act of 1975 sought to make divorce processes less combative by placing greater emphasis on conciliation and mutual agreement.

Defamation Laws in Australia

The purpose of Australia’s defamation laws is to prevent people from having their reputations injured unjustly by false remarks. Defamation claims against a third party in the event of marital infidelity are interesting in light of this legal framework. In a strict sense, yes. A person can file a defamation lawsuit against a liar who spreads rumours about an affair or other inappropriate behaviour. However, a major obstacle stands in the way. Defamation law has changed recently to require proof of “serious harm” to the plaintiff’s reputation from the allegedly defamatory comment. This is hardly a small bar, particularly when one’s own feelings are at stake. Moreover,  the truth is a perfect defence in Australia’s defamation law. This means that the defendant is immune from defamation claims so long as they can provide evidence that the remark they are defending was true. Defamation claims, especially those involving the delicate territory of personal relationships, can be difficult to navigate in Australia despite the availability of legal recourse.

Personal Injury Claims: Psychological Trauma

Personal injury claims under Australian law can be filed for more than just bodily harm. The legal system allows people to sue for emotional or psychological anguish because it acknowledges the serious effects of trauma. However, it is complicated to pin the blame for one’s emotional pain on another person, especially in personal relationships like marriage. It might be difficult to prove that a third party’s activities were the actual cause of emotional distress. Emotional pain can have many root causes due to the complexity of the human mind. A claim for compensation for mental anguish must show that the defendant’s actions caused the plaintiff’s distress. Solicitors in Blacktown NSW usually require strong proof and credible witness testimony are usually required for this purpose. While the law does provide recourse for psychological injury, establishing such claims is complex and, hence, a difficult undertaking in Australia.

Impacts on Child Custody and Property Settlements

While ‘no-fault’ divorce in Australia means that infidelity cannot be used as a reason for a divorce, its effects on issues like child custody and property division are sometimes unclear. Infidelity does not necessarily affect a court’s judgement on child custody. When determining child custody, the best interests of the child must always come first. The bond the child has with each parent, the financial stability of each parent, and any history of abuse or neglect are all considered by the court. The only time adultery may be relevant is if it has a significant negative effect on the child. It is still important to strive for fairness while settling property disputes. Considerations such as each spouse’s financial contributions, the couples’ anticipated requirements, and the length of the marriage become crucial. Separated from its financial consequences, adultery itself has little bearing on how marital assets are divided. Fundamentally, Australian law separates problems of personal misconduct from those of child welfare and economic fairness.

Comparison with Other Jurisdictions

Australia’s ‘no-fault’ divorce system and its treatment of adultery in general are diametrically opposed to those of certain other countries. Infidelity carries legal repercussions in some marriages, and not only in particular societies. In some places in the United States, a spouse who feels alienated from their partner can sue for financial damages under the “alienation of affections” argument. In addition, countries like Saudi Arabia and Pakistan, which have Islamic legal foundations, criminalise adultery and punish offenders severely.


The Australian legal system takes a novel approach to family law solicitors Sydney, with an emphasis on privacy and protection for all parties involved, especially minors. Although cheating can inflict severe emotional distress, the law tends to favour empirical evidence over subjective claims of harm. The need to understand one’s rights and take care to seek remedy in accordance with the nation’s established legal framework is emphasised.