Common myths about adultery dispelled

In England and Wales, it is possible to issue divorce proceedings and obtain a divorce on the grounds that the marriage has irretrievably broken down.

This can be proven via five facts, one of which is that your spouse has committed adultery and, as a result, you find it intolerable to live with them. Working within family law for a number of years, I have found that there are many myths and misunderstanding surrounding divorce on the basis of adultery.

Here are six:

1. Is it still adultery even if you and your spouse are already separated?

While you remain married to your spouse, if they have sexual intercourse with another person of the opposite sex, this falls within the legal definition of adultery, despite the two of you having separated beforehand.

2. It is adultery if you have sexual relations with a person of the same-sex

Adultery only applies if your spouse has relations with a member of the opposite sex. If your spouse is having relations with a person of the same-sex, you would not be able to issue divorce proceedings on the basis of this but could proceed on the basis of their unreasonable behaviour.

3. To apply for divorce on the basis of adultery any physical intimacy with another person is sufficient

To fall within the definition, sexual intercourse must take place between consenting parties, and anything that falls short of this will not be sufficient. It very difficult to prove adultery unless your spouse is willing to confess.

Evidence of text messages or emails between your spouse and a third party will not be sufficient.

4. It is best to name the other person

While you may feel like you want to ‘name and shame’ the other person, there is no legal requirement to do this and this could complicate your proceedings as the other person will need to be served with your divorce petition, as well as your spouse.

We would usually advise that the third party should not be named in your petition.

5. The court will ‘punish’ your spouse for adultery when dealing with your financial settlement

When the court is dealing with your finances and property, your spouse’s adultery would not usually be taken into account when deciding the financial settlement.

6. You can petition on this basis any time after the adultery has taken place

If you continue to live with your spouse for over six months after you learn of their adultery, and their affair stops, then you cannot petition on this basis.

To divorce on the basis of adultery your spouse must have committed adultery and you must find it intolerable to live with them.

For additional information on issuing divorce proceedings, or for advice on any family law matter, contact Janine Hutson by email or on 01772 258321.