Danny and Sandy have been married for 10 years. The first 9 years of their relationship were loving, caring, and filled with singing and dancing. However, over the last 12 months Sandy has noticed some changes in Danny’s attitude and health.
Last month Sandy’s GP diagnosed her with herpes and prescribed her the appropriate anti-viral medication. She confronted Danny about the STD and he admitted to having contracted the STD during a recent one night stand and passed it on to Sandy.
Sandy was disgusted with Danny’s actions and separated from Danny immediately. She is now pursuing a matrimonial property settlement and is still fuming about Danny giving her an STD. She wants to know if she can get additional assets from the property settlement based on Danny’s conduct. Surely he has to pay for giving her an STD and ultimately breaking up their marriage?
Prior to the Family Law Act 1975 (Cth), there had to be proven grounds for divorce. This means that it had to be proven (with evidence) that one party caused the breakdown of the divorce. Acceptable causes included adultery, habitual drunkenness or insanity.
This ‘fault’ could then be used as evidence in court proceedings. The Family Law Act 1975 (Cth) changed this and a ‘no-fault’ divorce was introduced. Rather than proving that one party broke the marriage contract, the couple need to show that there is an irretrievable breakdown of the relationship, demonstrated by 12 months of separation.
Dr Barry Maley, a senior fellow at the Sydney-based Centre for Independent Studies (CIS), has described some of the consequences of a no-fault divorce system:
“Current divorce law has introduced a number of perverse incentives for behaviour that undermines confidence in marriage and sustains high divorce rates. It promotes marital uncertainty, opportunism and forms of spouse exploitation.”
On the contrary, the no-fault principle is designed to reduce the hostile nature of divorce and to encourage alternative dispute resolution as opposed to confrontation, heated courtrooms and unnecessary character assassinations.
It is also aimed at easing the stress of divorce and making it easier for former spouses to maintain civil relations. In turn, this can also make it easier for children to deal and come to terms with the divorce of their parents.
"Sandy may have another avenue available to her however, through “future needs factors ..."
The law does not make allowances in property settlements after separation or divorce, for one party to be “paid” more due to, for example, the scenario outlined above. In our scenario Sandy cannot get more “assets” based on the fact that it was Danny’s fault the marriage broke down.
Sandy may have another avenue available to her however, through “future needs factors under s75(2) of the Family Law Act 1975 (Cth). In a matrimonial property settlement the future needs of both parties must be assessed, taking into account among other things:
- Earning capacity;
- Whether the party has the care or support of children;
- The financial circumstances of any new relationship.
Where appropriate, an adjustment to the parties’ contributions can be made after consideration of those factors.
"... if someone has suffered injury that affects their health and consequently affects their income earning capacity, then this is an issue that will be taken into account when the court assesses the future needs of that party."
The health of an individual due to them suffering from physical injury (a serious STD may fall into this category) or even a psychological injury (mental health issues which resulted from suffering an STD) would likely be taken into account by the court when assessing future needs factors.
Further, if someone has suffered injury that affects their health and consequently affects their income earning capacity, then this is an issue that will be taken into account when the court assesses the future needs of that party. Lawyers in this instance may turn to doctors, psychologists, therapists and other medical professionals to provide expert evidence about the impact such injury or STD has had.
Generally speaking, most STDs are not severe enough (when treated straight away) to affect one’s long term physical health and earning capacity. A great deal of STD sufferers are prescribed anti-viral medication to combat the effects of the STD and can continue to work in the meantime.
Taking this into account, it may mean that Sandy’s unfortunate diagnoses of an STD will not be enough to warrant an adjustment in the property settlement due to future needs factors. The court will decide such matters on an individual basis as determined on the facts of each individual case.