Relationships end for myriad reasons, and relationship breakdowns play out in a variety of ways.  Some partings of the way are mutual – each party in agreement that the relationship has run its course, and that it is time to go in separate directions.  Others are more one-sided – one party is the one to say the words, or take the steps, which trigger the end of the relationship.  That can range from confessing that they cannot be in the relationship any more, to revealing conduct (such as a secret relationship with a third party) with precipitates the relationship’s end.


The second category, where the breakdown is driven by one party (described by Elaine Benes in Seinfeld as the ‘breaker-upper’), is more traumatic to live through.  It often takes the ‘breakee’ on a roller coaster ride of emotions – the initial shock, followed by anger.  Where matters of the heart are involved, that can be one wild ride.


When these parties approach family lawyers in the aftermath of the separation, their heads are in entirely different spaces.  The breaker-upper has probably planned the separation for some time – they’ve already, in their own way, and in their own time, been through their own rollover coaster ride, looping the loops of shock and anger.  They’ve had time to process their emotions.  Now they’ve accepted the demise of the relationship, and are ready to ‘move on’.  For the breakee, however, the separation is still raw – they’ve just heard about it, and are not immediately ready to deal with the big-ticket items requiring attention after separation – parenting outcomes, and property adjustment.


For the breakee, they are filled with questions like “Can I stop him/her from seeing the kids, because they decided to break up the family”, and “Should he/she get less of our relationship property because their affair broke up our marriage?”.  In fact, for family lawyers at the coalface of family law, not a week will pass when questions about the relevance of ‘fault’ in a relationship split are not raised.


Family law issues are encountered by most people in their lifetime.  If they do not personally experience relationship breakdown, chances are they will know a family member, or a friend, who does.  Family lawyers are therefore regularly asked, in social situations, these very questions – how relevant is ‘fault’ in family law?


So, how does ‘fault’ come into it?


In parenting matters, not really at all.  The focus in reaching post-separation outcomes for children is to implement an arrangement which achieves the best interests of those children.  In households where there are no risk factors at large, our law tells us that children should have a relationship with both parents, based on spending regular time together, and communicating regularly.  Whether mum or dad had an affair, or could no longer live in a relationship with the other, is not a reason to see a parent-child relationship reduced or ceased altogether.  Those are inter-personal, ‘adult’, issues, quite irrelevant to what a child needs.  To illustrate, just because one parent was unfaithful does not mean that they are a ‘bad parent’, and cannot provide competently for the needs of that child.


For those who say, “But he/she abandoned the family”, that is usually overstating the matter – the breaker-upper could no longer live in a relationship, but that does not mean that he/she was resolving to no longer be a parent.  And it does not mean that a child should be deprived of a relationship with that parent.


In relation to property settlement cases, fault can occasionally be relevant.  Those situations are, however, quite limited in real life.  Judges have been prepared to take the conduct of parties into account when striking property settlements.  Examples are where, while maintaining the affair which ultimately led to the relationship breakdown, spouse A spent a significant and quantifiable part of his/her salary (income which would have otherwise been applied to acquiring, conserving and improving the relationship property pool, and to the needs of the family) on lavish travel, luxury purchases, and ‘lifestyle’ items for and with the third party (or, in some cases, even maintaining a separate ‘life’ with that third party, comprising a second residence).  In that situation, spouse A’s contributions to the relationship can (at the discretion of the Judge) be assessed as having been less than spouse B because of this diversion of resources (with the consequence that spouse A will receive a lesser portion of the pool of relationship property).


It is often a question of relativity.  If considerable resources have been funneled into a separate relationship in a modest asset pool, a Judge may be inclined to take it into account.  If, however the pool of property is vast, that spending may be proportionally so negligible that it is disregarded.


Some people are almost outraged upon hearing these answers.  The response is often “That’s just not enough of a penalty – it’s so unfair!”.


So why is the law like it is?  Why is there often no real penalty for the breaker-upper?  Why do they still get to see their children?  Why don’t they ‘get nothing’ in their property settlement. The answer is deceptively simple.  ‘Fault’ is almost impossible to pin down.


Any parent will be familiar with the following situation:  Two children, one in tears, alleging that the other perpetrated some horrendous act against them.  Child A swears that child B perpetrated that act.  Child B vehemently denies that.  You end up being unable to judge the situation, because you did not witness it.  As an external observer, you just don’t know who is at fault.


It is the same with relationships.  While spouse A may be the one to actually say the words “I want to break up” to spouse B, they may be doing so for a variety of reasons – because of something they’ve done, or because of something that spouse B has done.  It could even be both.  Importantly, as in the case of happening upon the irreconcilable situation between 2 children, it is impossible to determine ‘fault’ between 2 spouses.  Who has really caused the separation.  And if it was conduct of both spouses, who is more responsible?  And how far back does this analysis of causation go – who was the first to behave badly, conduct which, 20 fights later, ultimately led to separation.


The fact of the matter is that these questions are simply not possible to answer with any precision.  Put simply, there is no clear or verifiable answer.  Accordingly, the law leaves them alone.


Some might say that is unfair, but ultimately, there’s no alternative.


So there you have it – relationship ‘fault’ is more often than not irrelevant to the legal issues arising from separation and divorce.  So next time you see a family lawyer in a social setting, you can ask a different burning question.

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