A divorce can only be granted in England and Wales if saving a marriage is absolutely futile. In order to be granted a divorce, there must be one of five specific reasons that are set down by a divorce petition.
One of the five factors that can be used to grant a divorce is adultery. Unfortunately, it’s also the most common of the 5. According to a recent study, more than 50% of men and 26% of women in a marriage will have at least one affair during their marriages.
Recently, a client came to me, his wife was soliciting for a casual sex on the internet at a site that caters to illicit affairs for married people. Scanning the website was a stunning experience! There are literally hundreds of married people who are looking for out of marriage affairs with absolute strangers.
The potential for divorce when an unsuspecting spouse discovers their other half is looking for an affair and has incriminating evidence to that fact. As in the case of this client, that’s pretty substantial information but is it enough for the unsuspecting spouse to get a petition based on adultery?
In family law, this is a pretty straightforward area. That said, it can be a little confusing because most people think there’s more behind it then there really is. The fact of the matter is it’s much broader and complicated than one might think. In order to obtain a divorce on the basis of adultery, the offending partner must have already committed adultery. The Petitioner must state that he or she finds the action unbearable and does not wish to continue living with the offender.
There are several common misconceptions regarding adultery and divorce. There are many questions that people have on the subject. Hopefully, this article will clear the air a bit.
By UK Law,
“adultery is only relevant on the grounds for divorce where the act has actually taken place. If a sexual relationship is with someone of the same sex or the relationship is not sexual, it is not considered adultery.”
Here are some leading misconceptions regarding adultery…
Adultery covers any sexual activity
As stated above, adultery does not cover all sexual activities. If it is only sexual intercourse that takes place between a consenting man and woman who either one or both are married to someone else. Any other form of sexual satisfaction is not sufficient to prove adultery.
If you have already separated from your spouse
Only if your spouse has sexual intercourse with another party while you are still married is it deemed as adultery. That said, you can only file for divorce if you can prove that adultery has taken place and you find it unbearable to go on living with your spouse.
It is not adultery if you are already divorced
It is still adultery if the other party involved is still married to someone else, at the time. If a party was raped, under the age of 16 or consent was obtained by fraud, sexual intercourse under any of those circumstances is not adultery.
Another fact, if the other party is with a wife in a polygamous marriage, it’s not adultery as far as the spouse in the same marriage. 557
An extra-marital relationship between two people of the same sex
Again, adultery only applies when there has been sexual intercourse between a man and a woman. Therefore, an extra-marital relationship between two people of the same sex is considered improper association but not adultery. If a spouse wishes to dissolve the marriage, they can instead file on the basis of unreasonable behaviour.
Adultery before the marriage is still adultery if found out about after the marriage
A spouse who was unfaithful before the marriage has not committed adultery. It will only be considered as adultery if the affair continues after the marriage.
You find it unbearable to continue living with your spouse, it must be linked to adultery
That is not necessarily true. If adultery was the final straw in the marriage or you are experiencing a history of unpleasant behavior, you can file for divorce.
You want to shame the other man or woman in the divorce petition
You may want to publicly shame the other party, but it is not a requirement for divorce nor recommended. If your spouse has admitted to adultery, there is no reason to name the other party unless you are looking for revenge. It might make you feel better but it could make a mess out of the divorce. Everyone could easily experience higher costs and you run the risk of gaining the judge’s disapproval. Let it go!
It’s my advice that you show dignity and instead concentrate on other issues such as your children and finances. You could seek costs in the divorce suit, though not finances or children, as they are separate. There are fees that you will be responsible for including the actual petition fee of £340, your attorney’s fees and an absolute fee for £40.
The third-party’s finances will pay off the other spouse
The fact is, that’s just never going to happen. There are circumstances where a partner’s new spouse has finances that could indirectly affect the ex-spouses finance before the divorce and to meet this person’s needs.
If you commit adultery the courts will be against you dealing with your finances & children
Again, this is not the case. Most marriages fall apart due to both parties. Adultery might happen during a failing marriage but it’s not generally the cause.
You can counterbalance the petition by filing a statement explaining the reasons why you think the marriage fell apart before the adultery took place.
Based on adultery, your petition for divorce will entitle you to a larger settlement
Wrong again! Adultery by itself is not regarded by the courts as conduct that would be inequitable to disregard. The case would depend on the details and the judge will retain a wide level of discretion in addressing it to arrive at what would be considered a fair conclusion.
That said, conduct that is referred to as “gross and obvious” would definitely affect the divorce settlement. For instance, there was a case when a wife continually stabbed her husband and left him incapacitated for life. That situation fell into gross and obvious and her entire settlement was reduced.
Keep in mind, after learning about adultery, you only have six months to file a divorce petition. Once the six months have elapsed, you cannot use adultery for your divorce. The courts will deem your actions as tolerating and condoning the conduct.
Think about this – divorce is not about putting individuals through trials and tribulations. It’s about drawing a line in the sand and allowing both parties to move on with their lives.
In my experience, I have never seen either party totally forgive the other, even years later. Chances are, they will remember what they forgave in court just to move on but never really did.