Why extramarital affairs cannot be overlooked in family law proceedings

By Jerome Doraisamy|25 February 2021
Joplin Higgins

The introduction of no-fault divorce may have unintended consequences for consideration of coercive control, Joplin Higgins says.

Speaking to Lawyers Weekly, Joplin Lawyers director Joplin Higgins (pictured), who operates her firm in Singleton, NSW, said there has been hesitance of late to consider infidelity in the course of family law proceedings, in the wake of changes to no-fault divorce.

“There is a general reluctance to consider infidelity in proceedings because of this change, and we consider that an extra-marital affair is the simple breaking of a marital vow, when in fact it can be a subtle indicator of family violence, namely coercive control,” she submitted.

Coercive control, Ms Higgins detailed, is a “significant risk factor” for domestic homicide.

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“In the wake of the COVID-19 pandemic and the stark increase in domestic abuse and a lack of access to services, it is vital we are considering the relationship holistically,” she posited.

“All behaviour of the offender should be considered when determining a pattern of coercive control. By ignoring certain behaviours and their impact, we risk missing critical elements of a relationship that is marked by domestic abuse and coercive control.”

Infidelity is a “violation of trust and security within the relationship”, Ms Higgins continued, and has significant impacts on self-esteem and emotional wellbeing, as well as parent’s availability to children.

“Extra-marital affairs suggest an attitude of entitlement, righteous, possessiveness, power and control. This can help establish the type of offender we are engaging with. It also creates a power imbalance in the relationship,” she submitted.

Given the introduction of no-fault divorce, and with potential looming issues such as parental disputes over vaccines on the horizon, Ms Higgins said that practitioners in this space have an important role to play in conveying certain information to the court in ways that can be easily understood.

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“Practitioners will be required to pay close attention to detail to ensure they include all aspects of the relationship that contribute to domestic abuse and coercive control and not simply discount acts such as infidelity particularly when it has an adverse effect on the other party,” she advised.

“This will require practitioners to ask appropriate questions that will help reveal the subtle tactics used by the perpetrator to coerce and control and not pigeon hole this behaviour to simply acts such as physical violence, controlling finances and preventing the victim from seeing friends and family.”

Moreover, practitioners have a broader duty to push for meaningful change with regards to this broader issue, she concluded.

“Listening to their clients, creating a safe space and keeping an open mind to behaviours the perpetrator may use to exert power and control. This may vary from each perpetrator,” Ms Higgins said.

“It is not about isolated incidents, but a pattern of behaviour and subtle tactics used.”

Why extramarital affairs cannot be overlooked in family law proceedings
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