Adultery and the law

Marriage|October 11th 2016

The news last week has been dominated by the pending presidential election in the United States. The lumbering Trump and Clinton campaigns continue to roll around the nation, with their increasingly acrimonious TV debates attracting huge audiences.

I think it would be fair to say that neither candidate has an unchequered past or broad popular appeal. We must wait and see what happens at the poll booths next month but one thing that has stood out for me has been the number of times Donald Trump mentioned Bill Clinton during the TV debates. Bill, he seems to believe, is Hillary’s Achilles’ heel, the former President’s past a colourful past a convenient distraction from his own indiscretions. Louche Bill is apparently fair game during Hillary’s campaign, an easy way to score political points.

And this is a predictable approach. Adultery is amongst the most emotive of topics. People make a big emotional investment in their marriages and significant relationships …and infidelity is a serious threat to these. Even if the couple remain together the damage lingers and nothing is ever quite the same.

It’s a difficult line to walk. Constant jealousy and worry that your partner is carrying on behind your back is very unhealthy and corrosive to relationships but sadly, studies have shown that the more secure and optimistic amongst us typically underestimate the likelihood that their partner will be unfaithful.

If you start to worry that that your other half may be spending a little too much time away, it is natural to want to start considering your legal options. And if, luckily or unluckily, you’ve uncovered actual evidence then it is probably time to ring your solicitor.

But let me ask you a question.

Just what is adultery?

You might think you know the answer to this question but do you really? From a legal perspective, adultery is sexual intercourse between a man and a woman when one or both parties are (still) married to other people.

Yes, that’s right. It’s not adultery if:

*The participating couple did not engage in actual intercourse.

*The affected couple were not legally married at the time. So if one party in a cohabiting couple had an affair before the marriage, and their spouse only discovered this after the wedding, it would not count as adultery.

*The affected couple are the same sex. It’s true: you cannot legally commit adultery if you are in a same sex marriage or civil partnership. Instead, you must cite ‘unreasonable behaviour’ as your grounds for divorce or dissolution. If, however, one half of the couple had an affair with an opposite sex partner, that would be adultery.

It would also be adultery if:

*You were separated from your spouse at the time but not legally divorced – even if neither of you have any intention of ever getting back together.

*You were divorced but your new partner was not.

Sexual activity in some – thankfully rare – circumstances that might otherwise qualify is excluded: in polygamous marriages conducted abroad between spouses not habitually resident in the UK for example, or when one party is raped by the other. If one partner in an affair can prove they were significantly misled by the other, that is also not adultery.

Adultery is one of the five facts which can be cited under current law to prove that a marriage has ‘irretrievably broken down’. But it is also worth noting that adultery itself is not quite enough from a legal perspective. In order to divorce on the grounds of adultery, the petitioner must also state that they find it intolerable to continue living with their spouse, and the adultery may not be the sole reason for that. It may only be the terminal stage in the breakdown of the marriage.

There is a six month time limit from learning of the adultery – if you wait longer than that, it will be taken as read by the family courts that you did not find the adultery all that intolerable after all, and in fact ‘condoned’ it! It’s also not necessary to name the other person or go to great lengths to obtain proof. If your spouse won’t admit the adultery you could proceed on the basis of unreasonable behaviour instead. The courts don’t encourage deceitful behaviour like tracking devices or breaking into mobiles or computers to gain proof. Such behaviour could also get you into hot water legally too.

Finally: it’s pretty common for the wrong party in a marriage that has broken down due to adultery to expect the family courts to sympathise with their sense of grievance and punish their ex with a poorer settlement. It seems only natural. But in fact this does not happen in most cases – a fact sometimes greeted with incredulity by clients. The divorce courts are not there to judge your marriage or engage in a forensic analysis of who said what or who did what to whom. Infidelity – however betrayed you may feel – is not against the law. The courts are there to try and reach as fair a settlement as possible and to ensure the welfare of any children you may have with your soon-to-be-ex. Only particularly heinous bad behaviour will be taken into account in most instances – violence for example, or serious financial misconduct.

But such extremes are rare and do not affect the vast majority of couples, who must simply swallow the bitter pills and move on with their lives.

Author: Marilyn Stowe

The founder of Stowe Family Law, Marilyn Stowe is one of Britain’s best known divorce lawyers. She retired from Stowe Family Law in 2017.


  1. D says:

    “It’s not adultery if: The participating couple did not engage in actual intercourse”

    Wasn’t that Bill’s argument because he believed what he did wasn’t actual intercourse? I can imagine things can get very complicated…

  2. spinner says:

    In a marriage contract there is an explicit statement that say’s both sides will be faithful to each other or there or there about’s. Another part of the contract that the court seems to jump all over is that you will support each other for life. You can’t have one and not the other, if one partner is unfaithful that is the end of the contract in total.

  3. Polly Morgan says:

    Just a few corrections:

    For same-sex marriages, there is a ground of adultery where a party has sex with someone of the opposite sex. For civil partners no such ground exists at all, whatever the gender of the person that they had sex with.
    Polygamous marriages – we’re looking for those who were domiciled abroad at the time. Domicile is different to habitual residence. It’s hard to lose your country of domicile.
    The six month time limit re adultery is to separate, not to issue proceedings.
    You say that adultery may not be the sole reason for a party finding continuing the marriage intolerable but but in fact it doesn’t have to be linked at all.

    • Marilyn Stowe says:

      Dear Polly
      Here is the current law Section 1 MCA 1973
      (1)Subject to section 3 below, a petition for divorce may be presented to the court by either party to a marriage on the ground that the marriage has broken down irretrievably.
      (2)The court hearing a petition for divorce shall not hold the marriage to have broken down irretrievably unless the petitioner satisfies the court of one or more of the following facts, that is to say—
      (a)that the respondent has committed adultery and the petitioner finds it intolerable to live with the respondent;
      (b)that the respondent has behaved in such a way that the petitioner cannot reasonably be expected to live with the respondent;
      (c)that the respondent has deserted the petitioner for a continuous period of at least two years immediately preceding the presentation of the petition;
      (d)that the parties to the marriage have lived apart for a continuous period of at least two years immediately preceding the presentation of the petition (hereafter in this Act referred to as “two years’ separation”) and the respondent consents to a decree being granted;
      (e)that the parties to the marriage have lived apart for a continuous period of at least five years immediately preceding the presentation of the petition (hereafter in this Act referred to as “five years’ separation”).
      (3)On a petition for divorce it shall be the duty of the court to inquire, so far as it reasonably can, into the facts alleged by the petitioner and into any facts alleged by the respondent.
      (4)If the court is satisfied on the evidence of any such fact as is mentioned in subsection (2) above, then, unless it is satisfied on all the evidence that the marriage has not broken down irretrievably, it shall, subject to [F2section 5] below, grant a decree of divorce.
      (5)Every decree of divorce shall in the first instance be a decree nisi and shall not be made absolute before the expiration of six months from its grant unless the High Court by general order from time to time fixes a shorter period, or unless in any particular case the court in which the proceedings are for the time being pending from time to time by special order fixes a shorter period than the period otherwise applicable for the time being by virtue of this subsection.
      So far as condoning the adultery is concerned this is in fact the law:-
      (1)One party to a marriage shall not be entitled to rely for the purposes of section 1(2)(a) above on adultery committed by the other if, after it became known to him that the other had committed that adultery, the parties have lived with each other for a period exceeding, or periods together exceeding, six months.
      That is not the same as physically separating i.e. Living in different houses.

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