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Divorce & adultery: financial punishments & misconceptions

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Divorce and adultery.

As divorce solicitors, we receive many enquiries from individuals wanting to bring a divorce on the grounds of adultery. A relatively small number however, are granted for this reason. So, is using adultery as a reason for divorce the best solution and will it materially affect any financial settlement?

Let’s start with an understanding of what adultery is, that may sound obvious but bear with me!

Adultery is one of the five reasons you can cite to demonstrate the ‘irretrievable breakdown’ of your marriage. Under English Law adultery can only occur between a man and a woman and must involve sexual intercourse. Other forms of sexual activity or intercourse between same sex partners are not recognised as adultery in law. The person who is seeking the divorce cannot rely on their own adultery; it has to be adultery committed by their spouse.

So, the first thing to establish is do you have grounds for adultery, in the terms of the law? If not you will need to use one of the other reasons, which are often less contentious and easier to prove.

Financial ‘punishment’ for adultery

One reason people want to use adultery as the reason for divorce is that they think it will enhance their prospects of better a financial settlement. This is not the case at all and it is also important to note that it will not influence the court in any children arrangements either. This is because adultery does not affect the ability of a parent or change financial needs.

It is not uncommon for clients to say to us that they wish to name and shame the third party involved in the adultery, when applying for a divorce. However, the aim of the modern divorce process is not to ‘punish’ the ‘guilty’. In fact the aim is to remove emotional conflict and replace that with a constructive and simple process. The courts do not take kindly to bringing in a third party which only adds unnecessary complications and expense.

Misconceptions about adultery

A common misconception is that you cannot commit adultery if a new relationship starts after the separation from your spouse. Wrong. 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.

It’s worth knowing however 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.

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.

Nick Wiseman
Divorce lawyer, Great Yarmouth

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