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The impact of adultery on divorce in the UK

The law on divorce is changing on 6 April 2022. At that point the only ground for divorce will be the irretrievable breakdown of the marriage, it will no longer be necessary to provide a reason such as adultery. Read more about the introduction of no fault divorce here.

If you were to believe the media and popular TV culture, you’d think that adultery and divorce went hand in hand in the UK. In fact, adultery is used as the reason for the breakdown of just 10% of marriages in England and Wales*.

What is adultery?

For the purposes of divorce law in England and Wales adultery is committed when a married person has sex with someone of the opposite sex, other than their husband or wife.

You might be surprised to learn that having sex with someone of the same sex is not considered adultery in divorce in UK law. Someone in a same sex marriage or civil partnership is not considered to have committed adultery (in law at least) if they have sexual relations with someone of the same sex.

Of course, you may consider your partner has been unfaithful if they have a close emotional relationship with someone else that you feel is inappropriate. This would not be classed as adultery under UK law.

Grounds of Adultery: How does Adultery Affect a Divorce in the UK?

How does adultery affect a divorce in the UK?

From the nature of enquiries that we receive there is a perception that if a partner has committed adultery, it will in some way effect the divorce outcome, especially in terms of the financial settlement or arrangements made for the care of the children.

In reality adultery has very little impact on a divorce case, in legal terms at least. Using adultery as the reason for divorce can often make a case more complicated as if your spouse is unwilling to admit adultery you will need to try and prove that adultery has been committed, which can be difficult.

Who pays for divorce when there is adultery?

Where one party has committed adultery there is often a desire for that person to be punished and made to pay. The legal system is not set up to achieve this objective and as divorce lawyers we find ourselves having to explain that even if the other party has committed adultery, there won’t necessarily be any financial penalties for them.

It’s true that the divorce costs can often be borne by the offending party. This will mean the court fees and any associated solicitor fees for the divorce itself. However, it is very rare that the court will ever order that their spouse will have to pay more as part of a financial settlement because of their adultery.

What happens in a divorce if you commit adultery?

It is important to realise that if you are the person who has committed adultery you cannot use this as a reason for the divorce. It is only the ‘wronged’ party who can use adultery.

If you are the wronged party and wish to use adultery you will be required to prove that adultery has taken place unless your spouse is willing to admit adultery.

You will need to include details on the divorce petition, including the date that you found out that your ex committed adultery. This date must be less than 6 months from the date you apply for divorce.

If you have used adultery as the reason for divorce your ex will be required to admit to adultery on the form that is sent to them as part of the divorce process.

How the court considers adultery and finances

When looking to decide on a financial settlement between the parties the court has only one interest and that is to ensure family needs are met, and that includes the needs of both parties and the needs of the children.

It’s often asked whether one party can get more due to poor behaviour of the other party. Cases where it can be demonstrated that the behaviour of a former partner has had an effect on the family assets are usual. In one case, the husband had dissipated the family assets and the court decided that it was inappropriate that he should be allowed to fritter away assets and then claim as much of what was left, as if he had behaved reasonably.

Obviously where there has been financial misconduct there is a clear arrow pointing to where the behaviour has led to financial loss but what about where there has been non-financial conduct?

Where non-financial conduct is being cited as a reason to have a greater share of the assets solicitors and lawyers work on what is called the gulp or gasp test which in brief means it has to be particularly serious behaviour for the court to consider departing from the usual division of assets. If the judge hears the behaviour and gasps, then it is probably not serious enough but if the judge gulps, then that is an indicator that it is serious enough.

Cases where behaviour has been enough to cause the judge to gulp are extreme and include cases where the wife has shot her husband with a shotgun, husband committing incest with children of the family, and wife trying to stab her husband with a knife.

As indicated, it would need to be very serious conduct before the court changes its’ opinion on the split of the money, and adultery is unlikely to be serious enough. It is however essential you raise any your solicitor so that they have all the facts. The rule that I always work to is that I would rather know too much information than not enough.

What happens if you have committed adultery?

I am commonly approached by anxious clients who have had an affair and are incredibly worried how this will affect their divorce. I am asked, ‘Will infidelity during separation mean I can’t see my children?’ or ‘Will I not get any money from my if I committed adultery and divorce?’

The reality is that the reason for the breakdown of the marriage is rarely taken into account in either divorce or children’s proceedings. The reason for the breakdown of the marriage is a side issue and not one to which the Court has much regard.

The fact that one person has committed adultery does not alter their need to have a property to live in and income to meet their outgoings. The Court will not penalise someone for having an affair – irrespective of the ill feeling which may exist between the spouses at the time.

Equally, the Court will not ordinarily consider that it would be wrong for a child to continue to see one of their parents because that parent has committed adultery. In fact, there is a presumption in favour of a child having regular contact with both parents so far as the Court is concerned.

How to prove adultery

Proving adultery to the satisfaction of the courts can be difficult. If your ex is willing to admit their infidelity this is the easiest way. If they do not, you will need to provide evidence. You can attempt to prove your spouse has been unfaithful through hotel bookings, producing witnesses etc but this can be difficult and cause unnecessary tension. Often a preferable route is to divorce on the grounds of unreasonable behaviour instead.

It’s worth knowing that you cannot rely on adultery if you have continued to live with your adulterous spouse for a period or periods together exceeding 6 months after the time that you learned of their last act of adultery. Any longer and you will be seen to have condoned it.

Is it classed as adultery if you are separated?

There are many misconceptions about adultery and divorce. A common misconception is that you cannot commit adultery if a new relationship starts after the separation from your spouse. Wrong, infidelity during separation is still adultery. If you have a sexual relationship with a member of the opposite sex while you are still married then, in the eyes of the law, it is adultery and as such it can be cited in any divorce proceedings brought by your spouse.

Is adultery a crime in the UK?

No, it isn’t, but in 21 US States it is illegal.

Should you divorce in the grounds of adultery?

Adultery tends to be the most contentious of the options available to prove you have grounds for divorce. As Resolution accredited lawyers, we at Woolley & Co look to resolve the divorce and any associated issues with a minimum amount of conflict, so will often advise to keep matters amicable, to avoid naming third parties and sometimes to consider unreasonable behaviour as an alternative to adultery as this is far less likely to cause conflict and upset for all parties involved. Our aim must be the best solution for both parties and perhaps more importantly, for their children.

Ian Giddings
Divorce solicitor Coventry

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Blog Author - Ian Giddings

Ian GiddingsIan Giddings

Ian Giddings is a family solicitor with Woolley & Co, based in North Warwickshire. Ian offers a range of services including advice on divorce, separation, financial settlements and disputes regarding children.


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