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.