Sisters In Law: Husband’s shocking threat after sex with neighbour

Kelly was stunned to discover her husband was cheating with their neighbour — but even more shocking was what he said when she found out.

NED-0976-Sisters-In-Law-Graphics

Welcome to Sisters In Law, news.com.au’s weekly column solving all of your legal problems. This week, our resident lawyers and real-life sisters Alison and Jillian Barrett from Maurice Blackburn tackle your legal rights when it comes separation and divorce.

QUESTION: Earlier this year, I found out my husband was having an affair with our neighbour. It had been going on some time (at least two years, as far as I can tell) and I was devastated.

We have two children together and he is the primary breadwinner. I haven’t worked since our eldest was born six years ago and even when I did work, I earned minimum wage.

I can never trust him again and want to separate but he says if I leave, I’ll be left with nothing. He says I won’t even get custody of the children as I couldn’t support them and I’m not entitled to any money from our house as he is the only person who has paid the mortgage. This doesn’t sound fair or right to me — what are my rights when it comes to separation and divorce? Kelly, Adelaide

ANSWER: Firstly you need to understand that the law doesn’t consider why a marriage broke down or whose fault it may have been when deciding when to grant a divorce, determine a fair split of property, or access to children.

The fact that your husband had an affair will have no bearing on your rights or the outcome of your separation.

The only requirement for divorce is that there has been an irretrievable breakdown of the marriage, usually shown by being separated and living apart from your husband for 12 months with no reasonable prospect of reconciliation.

RELATED: Help! My boss hit on me, then made me redundant

RELATED: My bosses want to censor my social media

RELATED: Help! My neighbour is secretly filming me

In cases where the parents can’t come to an agreement over the children, the court can impose an enforceable ‘parenting order.’ Picture: istock

When considering your two children, if you aren’t able to come to an agreement with your husband, the court can impose a decision called a “parenting order” which will be enforceable.

When the court imposes arrangements about children, it will determine what is in the best interests of the child, which means considering the benefit of the child having a meaningful relationship with both parents, and any need to protect the child from physical or psychological harm.

If there is any family violence, abuse or concerns about neglect, this will be an overarching factor taken into account when the court makes a decision.

It sounds like your children are too young to have their views considered in this process.

The court will consider the capacity of each of you to provide for the children. This can include any characteristics specific to the child, or yourself or your husband that may be relevant, such as maturity, gender, lifestyle and background.

Parenting orders will be made to cover parental responsibility, contact with other significant others (for example grandparents), communication, any care or development aspects (for example what school they will attend) and disputes.

Your husband’s assertion that you won’t get custody of your children because you cannot financially support them is incorrect.

The Child Support Agency will use a mathematical formula based on your and your husband’s income, and the number of days they are in each of your care, to work out how much child support should be paid.

‘Your husband’s assertion that you won’t get custody of your children because you cannot financially support them is incorrect.’ Picture: istock

When it comes to property division, property is not divided using a precise formula (for example your husband paid all of the mortgage so he gets the house) or a 50/50 split.

All property is considered, including cash, real estate, cars, furniture, gifts, inheritances, property owned before the marriage and superannuation.

You and your husband’s financial (wages, investments, inheritance) and non-financial contributions (for example you as primary caregiver, homemaker) are considered as well as future needs (ability to earn an income, providing for the children).

When dividing property, the Court will then:

• Consider whether it is just and equitable to make a property settlement order

• Look at the value of all assets and liabilities

• Assess the contributions each of you made to the property (including physical labour from things like renovations)

• Consider things like yours and your husband’s age and health, whether you are earning an income, have the potential to earn an income, your children, the length of your relationship, and if either of you are living with someone else (plus that person’s financial circumstances)

• Distribute the property between the parties based on the above.

When it comes to property division, property is not divided using a precise formula. Picture: istock

If your husband attempts to hide, sell or transfer assets after separation, but prior to trial, the Court can still consider those assets when dividing the property.

Some practical tips you should think about before you have the conversation with your husband about separation:

• Open your own bank account

• Keep your personal information, including identification documents in a safe place

• Change all of your login details, for example email addresses, bank accounts, Medicare, social media

• Make copies of all relevant financial information outlining assets and debts (bank statements, income documents, credit card statements, superannuation details)

• Think about the children and whether you can keep them in a familiar environment after separation

It is important to inform yourself of the law and the process as much as possible, even before getting legal advice.

The Family Law Court has more information and many community legal centres will be able to provide free and confidential advice.

If you or someone you know is affected by family violence, call 1800 RESPECT on 1800 737 732 or visit www.1800RESPECT.org.au In an emergency, call triple-0

This legal information is general in nature and should not be regarded as specific legal advice or relied upon. Persons requiring particular legal advice should consult a solicitor.

If you have a legal question you would like Alison and Jillian to answer, please email [e-mail]