In England and Wales, a divorce can only be obtained when a marriage has irretrievably broken down and it can be proved by at least one of five specific facts, set out in the divorce petition.
Adultery is one of the five facts that can be used to prove a marriage has broken down irretrievably, and it seems to be pretty common. According to one study, more than 50 per cent of married men and 26 per cent of married women are likely to stray at least once during their marriage.
Today, by coincidence, I saw a new client whose wife had been advertising for a quick fling on a website catering for illicit affairs between married people. A quick look at the website in question was eye-opening! There are hundreds of married people, of both sexes, advertising for casual sex with strangers. The potential for divorce when an unsuspecting spouse turns on the family computer and finds the incriminating evidence, as in my client’s case, is pretty substantial. But is it sufficient to found a petition based upon adultery?
This is a relatively straightforward area of family law. However it causes confusion because people think the term is wider than it is, when in fact it is precisely stated in law. In order to obtain a divorce on the basis of adultery, an adulterous act must have taken place and the Petitioner must state that he or she finds it intolerable to continue to live with the Respondent.
There are many common misconceptions about adultery and divorce. Yesterday I appeared in my Legal Clinic on ITV This Morning, discussing the subject. There were plenty of questions from viewers, and you can watch the clip here.
Here, then, are my ten top adultery myths:
1. That adultery covers any sexual activity. It does not. It refers only to sexual intercourse between a consenting man and woman, one or both of whom are already married to other people. Lesser forms of “sexual gratification”, as one court put it, are not sufficient to prove adultery.
Had Bill Clinton said, “I did not commit adultery with that woman” of Monica Lewinsky, rather than “I did not have sexual relations with that woman”, he would have been correct.
2. That it isn’t adultery if you have already separated from your spouse. If your spouse has sexual intercourse with another while married to you, it is adultery. But in order to petition for divorce, you have to establish not only that adultery has taken place, but also that you find it intolerable to live with your spouse. If you have already separated the first part is correct, but the second is not. [UPDATE: Please also see the comment from John Bolch of Family Lore, at the bottom of this post.]
3. That it isn’t adultery if you are already divorced. It is still adultery, if the other party is still married to somebody else at the time. And if one party has been raped, is under 16 or if consent has been obtained by fraud, sexual intercourse in any of those circumstances is not adultery. Also according to the law, sexual intercourse with one wife in a polygamous marriage is not adultery, as far as another wife in the same marriage is concerned!
4. That it is adultery if it is an extra-marital relationship with a person of the same sex. In law, adultery only applies where there has been sexual intercourse between a man and a woman. An extra-marital relationship between two people of the same sex is considered an improper association. A petition for dissolution of a civil partnership can be filed on the basis of unreasonable behaviour instead.
5. That adultery before marriage will still count if you learn about it after the marriage. A partner who has been unfaithful before the marriage has not committed adultery. It is only considered to be adultery if it continues after the marriage has taken place.
6. That if you find it “intolerable” to continue to live with your spouse, it has to be linked to the adultery cited. This is not necessarily the case. For example, adultery may have been the final straw or chapter in a history of unpleasant behaviour.
7. That it is a good idea to name the Other Woman or Other Man on the divorce petition. You may desperately wish to do this and publicly name and shame the other person. It is not, however, a legal requirement. If your spouse has admitted to adultery, there is no need to name the third party. Yes, doing so may make you feel better – but it will complicate matters, increase costs all round and risk incurring the judge’s disapproval.
My advice is always to act with dignity and concentrate on other issues in the divorce such as the children and finance. You can still seek the costs of the divorce suit (although not finances and children matters, which are separate) from your spouse. There will be the petition fee (£340), the decree absolute fee (£45) and your lawyer’s fees, if you instruct one.
8. That the third party’s finances will be used to “pay off” the other spouse. This won’t happen. That said, it is worth noting that a new partner’s financial means might be indirectly relevant in relation to a spouse’s finances post-divorce, and his or her ability to meet the former spouse’s needs.
9. That if you have committed adultery, the court will be biased against you when dealing with the finances and the children. This is not the case. Most marriages break down because of fault on both sides. Adultery can be a symptom of a failing marriage, rather than its cause.
One way of counterbalancing the petition is not to defend it, but to file a statement explaining why you believe the marriage broke down before the adultery occurred. Prince Charles took this course of action, very publicly, during his divorce from Princess Diana.
10. That if you petition for divorce on the basis of adultery, you are entitled to a larger settlement. You aren’t. Adultery alone is not regarded by the court as conduct which would be inequitable to disregard. Conduct that is “gross and obvious” would affect a divorce settlement. For example, I once had a case where the wife repeatedly stabbed the husband and left him with serious incapacity for life. That fell into the gross and obvious category, and her settlement was reduced.
As I pointed out on ITV This Morning, divorce isn’t about subjecting individuals to “trials”. Instead, it’s about drawing a line and enabling both of you to move on into the future.
And finally: bear in mind that after learning of adultery, you have only six months to issue a divorce petition. Once that time is up, you cannot use the adultery to divorce your spouse and you will be regarded as having “condoned” it.
Please do remember this, because my experiences with clients who come to me years later, because they have never been able to truly forgive, bear out the old joke. A wife may agree to forgive and forget, but she will never forget what she forgave…