What should I do if my husband/wife is having an affair?

Divorce|Marriage|Relationships|Wellness & Self Help|April 26th 2019

Finding out that your spouse is having an affair can be devastating and place a severe strain on a relationship. Sometimes it spells the end of the marriage. Other times, couples repair the relationship, often making it stronger.

There is no right or wrong answer here. However, if you are married, there are some legal considerations for you if you partner has an affair. So, we asked Gabby Read-Thomas from our Altrincham office to take us through what you need to do if you find out your spouse has / is having an affair.

“Shocked, betrayed and confused are just some of the emotions that I see my clients dealing with when their relationship has broken down due to an affair.

In the beginning, I advise them to allow themselves some time to consider next steps rather than lashing out in an act of retaliation which they may later regret.

Once the initial dust has settled, communication is crucial, whether you want to try and save the relationship or have decided it is over and need to plan a way forward.

Staying together

Relationship counselling can be extremely helpful in supporting couples to open-up, explore the problems between them and get back on track.

There are many counselling services available, such as Relate, and a simple Google search should help you locate someone in your area or try the National Counselling Society, find a counsellor directory.

Separating

If there is no way back following an affair, then I would recommend taking early advice on the divorce process.

In English law there is only one ground to petition for divorce and that is that the marriage has irretrievably broken down. Although there has been a lot in the news about the new era of ‘no fault divorce’, it is likely to take some time for parliament to ratify the necessary legislation.  So for now, to prove this, you must currently rely on one of 5 facts and one of these is adultery.

Specifically, the law states that you can petition for a divorce based on adultery if your spouse has committed adultery and you find it intolerable to live with them.  Importantly however, same-sex spouses cannot use this fact to prove irretrievable breakdown (and would instead need to allege ‘unreasonable behaviour’).  Importantly, adultery can be committed and used for a reason to divorce, even after a married couple have separated.

Even if adultery is applicable, it isn’t necessarily that straight forward. What the court recognise as adultery and what you consider to be an affair are not always the same thing.

The law relating to adultery

The court considers adultery to be the voluntary sexual intercourse between a man and a woman. A close relationship which you may consider inappropriate, involving dates, messages, emails (but without actually having sex with that person) is not recognised legally as adultery.

However, whilst the court would not recognise it as adultery, such behaviour can be used as an example of unreasonable behaviour and a divorce petition can be presented on this basis instead, as it can with same-sex spouses who discover their spouse is conducting a relationship with a third party

It should also be pointed out that if you continue to live with your spouse for a period of 6 months or more after you found out about the adultery then you cannot use that adultery as the basis for a divorce petition, unless that adultery is continuing  If so,  the 6 month period begins to run from the last adulterous incident. If however it was a ‘one-off’ which took place more than 6 months before you found out, or your spouse denies having committed adultery, your safer option is to proceed on the basis of their behaviour.

Getting divorced

Citing adultery in a divorce petition requires the spouse to admit to the adultery in the paperwork. From a practical point of view, it is worthwhile asking their spouse  to sign a  statement confirming their agreement before proceedings are issued. In the long-run this will help reduce the risk of costly defended divorce proceedings. Again, if your spouse is unwilling to sign a statement, you should consider presenting your petition on the basis of unreasonable behaviour.

If you continue with the adultery petition and the divorce is defended it is the court that will decide whether there is evidence to show that the adultery has been committed, and let’s face it, short of hiring a private investigator (which can be done) it  is unlikely that you will have any direct evidence of the adultery.  However, if there is enough circumstantial evidence to show opportunity and an inclination to commit adultery, the court should be able to draw inferences that the adultery has been proved and the petition can proceed on that basis.

If you have concerns your spouse is having an affair and would like some initial legal advice, please contact our Client Care Team here or at the number below. All enquiries are strictly confidential.

 

Gabrielle is a Solicitor in our Altrincham office. She advises clients on all elements of a relationship breakdown including financial settlements and making arrangements for children.

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Comment(1)

  1. JamesB says:

    A fairly long time ago now I was granted access to take my children to school for a while, my ex wife later complained and I lost this, but that’s another story.

    Apart from the women pulling their children from getting near me, another story, there I met a man who is still a friend of mine now. I am going to his second marriage later this year. He has been with his partner for over 10 years now, and are getting married and I wish them well.

    Well, at the time, he was going through an amicable divorce with his wife. His wife was absolutely stunning, and although attracted to her, her attitude was appalling, she also stopped me seeing my children once and called the police on me and gave me a lot of other unjustified shit in the name of the sisterhood. Anyway, after various trips to McDonald’s, park, pub, etc. (you get more evenings out and by yourself with divorce), he had told me his story.

    So, he comes home from the pub to find his wife in bed with someone else. He said, he’s off to get a knife, the guy should run, so, he does that and the guy runs. Turns out he hid under the bed and the wife said it was an accident.

    Anyway, so, they made it up, and for a while, well, a few weeks things were ok. Thing is my friend is not going to pull the best looking Ladies with his looks and his personality is nice and he doesn’t splash his money around. Yet, she gets a lot of male attention. So, there was another accident where some other chap accidentally ad sex with her, then another guy accidentally fell on her with no clothes on or something. Well, they remain my only example of an amicable divorce. He did divorce her without lawyers, and with 2 children involved. That was about 15 years ago.

    Now, she did live with a big businessman toyboy lover who was a good looking man earning a lot of money for many years. They did not marry. Last year he dumped her to marry a younger woman and buy a house and have children. She has been single for coming up two years now. Looking at her now she has lost her looks and looks sad.

    I have been delaying getting to the point as I am not sure what it is. I suppose it might be something about the relative worth of men and women changing as people age, i.e. women reduce their market worth and men rise. Yet, I think there is something here about sex and spirituality. I think marriage should be about more than that and choosing between a horrid attractive person and a nice not so attractive person the better option is the less physically attractive option for medium and long term happiness. Go for the other option if you are young, but short term is ok, medium and long term not so. Regards to all.

    The most emotionally clever man I ever met, he didn’t get mad, he got even. Went with and trusted his parents advice. That said, if the guy hadn’t hid under the bed he might be in prison now for stabbing him with a pair of scissors. I doubt it though, as I said, he didn’t get mad and that is the moral of the story. As I get older the sexual jealousy green eye thing declines also. I think I remember it being very strong from my late teens to mid thirties. Now I hope my ex wife has a great sex life as it will stop her giving me grief. I doubt it though. Its like that with life, you always think someone else is getting your share 😉 x.

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