Affairs are often a symptom of a failing marriage rather than the cause. We frequently work with clients who are seeking a divorce because they have found out their spouse is having an affair and clients who are the ones having the affair.
An affair does not necessarily mean the end of the marriage but for those couples where it is a deal-breaker, there so many myths surrounding adultery and divorce. Often offered as fact from well-meaning friends and family, we asked Rebecca Coates from our Tunbridge Wells office to dispel her top seven myths of adultery.
“I am always surprised when advising clients about adultery, the many misconceptions that exist about the law. Even those clients who wish to use it as a supporting fact in their divorce petition. So, I decided to bust the seven myths I hear the most.
Myth one: Adultery covers any sexual behaviour
This is not true. Adultery is defined as sexual intercourse between a man and a woman who are not married to each other but at least one of whom is a married person. Attempts to commit adultery do not amount to adultery but could be used as examples of unreasonable behaviour. If your spouse has an affair with a member of the same sex this does not constitute as adultery in the eyes of the law
Myth two: You must name the person who your husband/wife committed the adultery with
There is no requirement to do this. You should only name them if you think the respondent is going to defend proceedings. The person with whom it is alleged that the respondent has committed adultery with, will be called the “co-respondent.” The co-respondent will be made a party to the proceedings and will be served with copies of the divorce petition.
Myth three: Adultery petitions are very common.
They are quite rare. Not only does the person filing the divorce petition have to have knowledge that the adultery has taken place (suspicion does not count) but the respondent must admit to the adultery.
If the respondent fails to admit to the adultery, the Court will arrange a hearing and both parties will be required to give evidence.
Generally, it is not possible to provide direct evidence so circumstantial evidence may be relied on. The Court may also require evidence not just of an opportunity to commit adultery, but also of an inclination or passion to commit it.
Once the Court has heard and/or read all the evidence, it will make a decision as to whether the respondent committed adultery based on the balance of probabilities.
This approach carries a certain amount of risk and I always recommend to clients that want to serve a divorce petition on the grounds of adultery, that they agree with their ex-spouse beforehand that they will admit to the adultery and complete and sign the Acknowledgement of Service form.
Alternatively, you can use the supporting fact of your spouse’s unreasonable behaviour but refer to the adultery as an example of their behaviour. A reference of “improper association,” can also be listed as another example of their unreasonable behaviour.
Myth four: I will get a better divorce settlement because my spouse cheated
A common myth but regardless of whether your divorce on the grounds of adultery, the adulterous behaviour of you or your ex-spouse has very little bearing on the financial settlement overall.
Myth five: Adultery petitions have no time limits
No, incorrect. If you have found out about your spouse’s adultery but have continued to live with them for a period exceeding six months, you are barred from relying on adultery.
For the avoidance of doubt, living together is defined as living with each other in the same household. I have been asked “What if the adultery is continuing? How does that work with the time limit?” The answer is that for this purpose, adultery refers to one act of adultery. Therefore, where the adultery continues, the time limit will not run until the last act of adultery.
Myth six: Adultery before marriage will still count if you find out about it after the marriage
If the affair took place before you were married, then it is not considered adultery. It is only considered adultery if the affair continues after the marriage.
Myth seven: It is not adultery if you have separated from your ex-spouse.
In the eyes of the law, you are committing adultery. If you are separated from your spouse and you sleep with a member of the opposite sex this is adultery under English Law as you are still legally married.
Even if you are living apart, have agreed to see other people or your ex-spouse is aware of the relationship it is still adultery and can be used as the basis of a divorce petition.”
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If you are looking for advice on adultery and divorce, please do contact our Client Care Team here.