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 family solicitors office in Altrincham 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.
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.
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.
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.