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Are emotional affairs grounds for divorce?

The word ‘affair’ – from the French verb a faire, meaning to do – is a pretty loaded one, conjuring up images of illicit trysts in hotel bedrooms. On the face of it, a sexual relationship seems central to such infidelities. But nowadays there is an increasing awareness that this need not be the case. Type the words ‘is my wife…” into Google and the search engine will present you with various suggestions for a full search phrase. One is likely to be “is my wife having an emotional affair?”

Such suggestions are culled from thousands, even millions of previous searches by other users. Clearly the concept of the ‘emotional affair’ is gaining ground and provoking anxious Googling in offices and studies around the land.

The term refers, of course, to purely emotional entanglements – affaires de coeur in the most literal sense of the phrase. At first glance they seem like a very 21st Century phenomenon. In the era of iPhones, iPads, Twitter and Facebook, it is all too easy to form platonic relationships, with old partners from the past perhaps, or even people you have never met before. It is certainly much easier than it once was. But as the old saying goes, there is nothing new under the sun. Anyone who has ever seen the legendary 1945 British film Brief Encounter will realise that the concept of an emotional affair is no faddish novelty.

The question though, is what you can do about one? How on earth do you respond if you make the unhappy discovery that you partner is engaged in an emotion affair?

The first thing you will have to do decide just what the concept of infidelity means to you. Is it entirely bound up with the physical or are you just as bothered by the idea of your partner exchanging verbal intimacies with another person? Maybe you find the latter idea even worse than a sexual affair. There is no ‘one size fits all’ answer to this question. Along with honesty and respect, fidelity is central to the idea of a monogamous relationship but everyone will have their own perspectives on the right thing to do and how to make such relationships work.

Some marriages survive even physical affairs but you may feel, quite legitimately, that your partner’s emotional affair too great a breach of trust to forgive, even if it never went beyond a keyboard or telephone. Your partner’s reaction if you confront them about the affair will also tell you much about the true state of your relationship and how much trouble it may be in. Are they contrite? Mortified? Baffled by your anger? Or are they secretly pleased to have been discovered? The latter reaction is not uncommon in any kind of affair. Discovery means the guilty partner no longer needs to sneak around, worrying about being found out and feeling ground down by guilt. Once the affair is out in the open, they may feel can finally be honest with their emotions.

So, where does this leave us? Whether or not an emotional affair is grounds for divorce is ultimately up to you. If you decide there is no way back from your partner’s behaviour, you will not, of course, be able to divorce them on the grounds on the grounds of adultery. Legally this term refers only to sexual intercourse – and indeed only to be sexual intercourse between a man and a woman. But there is a solution – the same one, in fact, which is open to same couples in civil partnerships or marriages who discover that their partner has been unfaithful to them: divorce on the grounds of ‘unreasonable behaviour’. This is the most frequently cited of the five ‘facts’ which you can use under English law to demonstrate in a family court that your marriage has ‘irretrievably’ broken down.

It would be perfectly legitimate and legally credible to claim in your divorce application that a torrid emotional affair constitutes unreasonable behaviour and that you can no longer live with that person.

The blog team at Stowe is a group of writers based across our family law offices who share their advice on the wellbeing and emotional aspects of divorce or separation from personal experience. As well as pieces from our family law solicitors, guest contributors also regularly contribute to share their knowledge.

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