In England and Wales, a divorce can only be obtained when a marriage has irretrievably broken down and it can be proved by at least one of five specific facts, set out in the divorce petition.
Adultery is one of the five facts that can be used to prove a marriage has broken down irretrievably, and it seems to be pretty common. More than 50 per cent of married men and 26 per cent of married women are likely to stray at least once during their marriage.
This area of divorce law can cause confusion because people think the term is wider than it is, when in fact it is precisely stated in law.
Bear in mind that in this context, ‘adultery’ is meant specifically in the legal sense. It has a more limited meaning than adultery in everyday language, which is essentially a synonym for cheating.
Here, ‘adultery’ is a narrowly defined term—and it’s the difference between the legal and everyday meanings of the word that cause much of the confusion described below.
To obtain a divorce in England and Wales, you must first demonstrate that your marriage has irretrievably broken down. To do this, you can use one of five facts. One of these is adultery. It sounds simple enough but adultery in the eyes of the law is not as straight forward as it may appear.
Put simply, yes: you can divorce because of adultery. But you need to be able to prove it. A solicitor for divorce can help you with this.
Adultery divorce FAQs
Does adultery include any sexual activity?
There are many common misconceptions about divorce after adultery, and this is perhaps the most common.
It does not. It refers only to sexual intercourse between a consenting man and woman, one or both of whom are already married to other people. Lesser forms of “sexual gratification”, as one court put it, are not sufficient to prove adultery.
Had Bill Clinton said, “I did not commit adultery with that woman” of Monica Lewinsky, rather than “I did not have sexual relations with that woman”, he would have been correct.
In other words, adultery and infidelity in this context are not the same thing.
Do adultery petitions have a time limit?
As any good family law solicitors will tell you, they do. Your divorce rights after adultery do not continue indefinitely.
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.
Is it easy to petition for divorce after adultery?
While the divorce rate after adultery is high, divorce petitions that rely on adultery are relatively 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 decide as to whether the respondent committed adultery based on the balance of probabilities.
This approach carries a certain amount of risk, and we 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.
Is it adultery if you’re separated?
If your spouse has sexual intercourse with another while married to you, it is adultery. But in order to petition for divorce, you have to establish not only that adultery has taken place, but also that you find it intolerable to live with your spouse. If you have already separated the first part is correct, but the second is not.
Is it adultery if you’re already divorced?
It is still adultery if the other party is still married to somebody else at the time. And if one party has been raped, is under 16 or if consent has been obtained by fraud, sexual intercourse in any of those circumstances is not adultery. Also, according to the law, sexual intercourse with one wife in a polygamous marriage is not adultery, as far as another wife in the same marriage is concerned!
Is a same-sex relationship adultery?
In law, adultery only applies where there has been sexual intercourse between a man and a woman. An extra-marital relationship between two people of the same sex is considered an improper association. A petition for dissolution of a civil partnership can be filed on the basis of unreasonable behaviour instead.
Is it adultery if it’s before marriage?
A partner who has been unfaithful before the marriage has not committed adultery. It is only considered to be adultery if it continues after the marriage has taken place.
Does the ‘other woman/other man’ have to be named in the divorce petition?
You may desperately wish to do this and publicly name and shame the other person. It is not, however, a legal requirement. If your spouse has admitted to adultery, there is no need to name the third party. Yes, doing so may make you feel better–but it will complicate matters, increase costs all round and risk incurring the judge’s disapproval.
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.
Will the third party’s finances be used to pay off the other spouse?
This won’t happen. That said, it is worth noting that a new partner’s financial means might be indirectly relevant in relation to a spouse’s finances post-divorce, and his or her ability to meet the former spouse’s needs.
Does adultery bias a court case against you?
This is not the case. Most marriages break down because of fault on both sides. Adultery can be a symptom of a failing marriage, rather than its cause.
One way of counterbalancing the petition is not to defend it, but to file a statement explaining why you believe the marriage broke down before the adultery occurred. Prince Charles took this course of action, very publicly, during his divorce from Princess Diana.
Does adultery result in a larger divorce settlement?
It doesn’t. 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. Adultery alone is not regarded by the court as conduct which would be inequitable to disregard. Conduct that is “gross and obvious” would affect a divorce settlement.
And finally: bear in mind that after learning of adultery, you have only six months to issue a divorce petition. Once that time is up, you cannot use the adultery to divorce your spouse and you will be regarded as having “condoned” it.