divorce UK

Adultery And Divorce: Why The Two Don’t Always Go Hand-In-Hand

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.

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 using divorce solicitors.

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.

divorce uk

Divorce Laws in the UK

In Europe, you would find that the judicial system varies from country to country. In the UK, for instance, the ‘English law’ applies, while North Ireland has its own legal system that is mostly identical to English family laws with minor changes, if any.

Then you have Scotland’s legal system, which firstly is in a wholly separate jurisdiction and has a different court-structure. The only similarity would be that both share a magnificent Supreme Court, situated in Parliament Square. The laws themselves are quite contrasting. 

Scotland’s laws don’t offer the same provisions that the UK does to couples. In fact, as per the sound cohabitation law, couples don’t get the same rights as married couples. There is, however, scope for dispute resolution even for cohabiting couples.

Even when it comes to married couples, the divorce proceedings, financial settlements and general laws governing divorce are markedly different when compared to that of England’s. Scotland is a bit more conservative when it comes to divorce laws, and the two systems are so different that where the ruling is in favor of the husband in one system, in the same situation, the ruling would perhaps be in favor of the wife in any other system. Lets take the case of a non-working woman married to a wealthy man. This woman has got a sizable inheritance over the course of their marriage.

If a divorce is to occur, then the woman would be at a huge financial disadvantage after the ruling in Scotland, where the ruling will be in favor of the husband. On the other hand, England’s laws provide the woman a monetary settlement that covers her basic needs so that she can meet her needs in full without much effort. By contrast, Scotland merely offers half of their shared assets and three years’ maintenance. The assets her husband owned prior to marriage are out of the scope of Scotland’s divorce laws. 

Now in the instance where there is a dispute between Scotland and the UK, where each party wishes to conduct the proceedings in a different jurisdiction, then the divorce proceedings will be held in the country where the parties had their most recent matrimonial home.

England and Wales are considered to be in the same jurisdiction, so if the matrimonial home is in England or Wales, but the wealthier party chose to hold the proceedings in Scotland, then the decision of Scotland’s court could be contested and the petition would be stayed.

Scotland’s laws require strict time-limits regarding the divorce-petition application or agreement between parties, whereas the UK  is more liberal when it comes to this. England requires financial disclosure before any kind of financial settlement, whereas Scotland does not require it.

Scotland and England are quite different when it comes to their laws, so choosing to hold your divorce proceedings in either jurisdiction could have an effect on the final ruling, so you should consult your family lawyer as soon as possible regarding the same.

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Private Investigators & the legal process

There has been a general stigma surrounding private investigators of late, and this is primarily because of image that the recent high-profile cases involving them seem to portray.

If you follow these cases, a private investigator merely looks like a shady person who hacks into the target’s devices and gathers information. They look as if they are merely tools for journalists to gather information for their stories, but the truth cannot be far from this.

The fact is that private investigation is a completely legal line of work, and opting for such services doesn’t put you on the wrong side of the law. Only a small minority of public investigators use less than legal means, and unfortunately, they are also the most vocal, which is the reason for all this bad publicity.

Now coming to the matter at hand, there are a few things you should look at when you are hiring a Private Investigator.

Don’t hire the first investigator you find in the Yellow Pages. Do some research and only hire reputable companies. You would be surprised at the amount of shady websites set up, looking to take your money under the guise of offering private investigation services. So how do you separate the wheat from the chaff?

One way of reducing down is by choosing only firms that are part of a recognised organisation. Sure, it isn’t necessary for a private investigation firm to join these bodies, but choosing from these organisations is like having a stamp of approval. This is because bodies like World Association of Private Investigators or The Association of British Investigators have a strict code of conduct, and they let new members in only after they meet their high requirements. 

You now have a considerably smaller list, and to whittle down further, give them a call and ask them to find the Insurance Number and bank account details of your partner. Those who agree to do it should be removed from your list, and those who don’t are the ones that follow a strict code of conduct. You don’t want to get into any trouble with the law, and that’s why you should choose the latter..

Now’s the time to know which detectives specialise in the type of investigation you want to conduct. Simply go through their website, and find whether they can do what you want. Investigation as part of divorce proceedings? An investigation involving employees of a company? Do they showcase their portfolio of recent cases? If so, that’s a good way to know whether they specialize in the kind of investigation you want to conduct. You should also check their success-rate.

It’s time to get the final list, and for that, you can search their names with the word ‘review’ next t o them to find out the experiences of others. Is their success rate high? Are they involved in any legal disputes? Do clients say that they have had a bad experience with them? You should choose firms that have a good reputation online. 

Now, if you ask them whether what they are doing is legal, everyone will assure you of the same. But the good ones will assure you that they have gone through everything well within the confines of the law, and that the method of obtaining the evidence won’t compromise the case at all.

When choosing a private detective, better safe than sorry. This is because even if a single evidence is obtained through illegal means, not only does it compromise the case, it leaves you open for more court disputes.