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Is adultery grounds for divorce?

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, as we tell our clients, adultery in the eyes of the law is not as straight forward as it may appear.

There are a number of misconceptions about adultery which must be cleared up before a petition of divorce is issued.

Are adultery and infidelity the same thing?

In a word: no. Many people see the two terms as synonymous but under English law, adultery has a very specific meaning. It only refers to full sexual intercourse between a man and woman when at least one of them is married to someone else. No other kind of sexual activity constitutes adultery in this context.

Is it adultery when the affair is with someone of the same sex?

No. The law defines adultery as something that can only take place between a man and a woman, any sexual relations with a member of the same sex do not amount to adultery.

Is it adultery if you have already separated?

Yes. Any sexual intercourse with a member of the opposite sex, irrespective of whether or not it takes place post-separation, is technically adultery.

Does adultery count against me during the divorce?

No. While many believe that the unfaithful party will be treated more harshly in court, this is simply not the case. Marital breakdown is rarely all down to one person’s actions. Adultery can be the result of problems already present in a marriage rather than the cause. Judges understand this, so they do not treat people more, or less, harshly for that reason. The adultery will make no difference in the eyes of the Court when determining how the matrimonial finances should be divided.

Don’t forget the clock is ticking

If you live with your spouse as a couple for a period of more than six months (or periods which together amount to more than six months) after you find out about the adultery, you would not be able to rely on it to seek a divorce.

Obviously, every case is different, so if you want to discuss your situation with one of our expert family lawyers, do not hesitate to get in touch.

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