What is adultery?
Adultery is defined as “voluntary sexual intercourse between a married person and someone other than their current spouse or partner.”
Can I divorce on the basis of adultery in the UK?
Before divorce law reforms in 2022, adultery was one of five facts that could be cited as the grounds for divorce. These are no longer applicable under UK law. With the welcome introduction of ‘no-fault divorce,’ the legal requirement to assign and prove blame was removed and a new divorce process was introduced.
Can I still cite adultery as a reason for divorce?
On 6 April 2022, divorce law changed in England and Wales, removing the need to attribute or accept blame. Since then, the only ground for divorce is the irretrievable breakdown of your marriage. It’s no longer necessary to include any other justification for your divorce application to be granted.
What if my spouse has been unfaithful?
While adultery may still be the reason for choosing to divorce, there is no way of formally recording this in your divorce application or subsequent proceedings.
It’s worth remembering that the circumstances of a divorce have no bearing on the outcome. Even before no-fault divorce, the grounds for divorce were irrelevant when negotiating divorce financial settlements and child arrangements.
Despite its previous status as a grounds for divorce, and the fact that extra-marital affairs are a common reason for marriages ending, the legal interpretation of adultery was very limited and there were many myths surrounding it.
Myth 1: Adultery includes any sexual activity
Legally, adultery refers only to sexual intercourse between a man and woman, one or both of whom are already married to other people. Other sexual acts were not considered acts of adultery by law.
Myth 2. Adultery includes sex with anyone else
In law, adultery only applied where there has been sexual intercourse between a man and a woman. If a spouse had sexual intercourse with a member of the same sex, this would not be considered adultery. Instead, it would have been referred to as an ‘improper association’. Under these circumstances, the divorce would have to be filed on the basis of unreasonable behaviour, rather than adultery.
Myth 3: It wasn’t adultery if you had already separated from your spouse
If your spouse had sexual intercourse with a member of the opposite sex while married to you, you could cite adultery as your grounds for divorce. But to petition for divorce, you had to establish not only that adultery had taken place, but also that you now found it intolerable to live with your spouse. If you had already separated the first part may be correct, but the second is not.
Myth 4. That adultery before marriage could still count
Even if you learned of the affair while you were married, a spouse who was unfaithful only before the marriage had not committed adultery.
Myth 5. Unreasonable behaviour had to be linked to any adultery cited
This was not necessarily the case. For example, adultery may have been the final straw in a history of unpleasant behaviour. Or vice versa.
Myth 6. The ‘other’ man or women should be named on the divorce petition
This was never a legal requirement. If your spouse had admitted to adultery, there was no need to name the third party.
Myth 7. That adultery had any bearing on the divorce outcome
As with now, the reason for divorce was largely irrelevant when it came to agreeing outcomes such as child arrangement and finances.
Myth 8. You could file for divorce on the basis of adultery at any time
Even though it was only one of five legally acceptable reasons for divorce, you only had 6 months from the point you learned that your spouse had committed adultery to file for divorce on that basis. Once that 6-month period was over, you could not use that instance of adultery to divorce your spouse.