Family Law Archives | Solicitors North East

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.

As everything keeps changing with connections between the UK and EU, legislation is taking quite a hit. Who has jurisdiction over who, what decisions will be affected by new legislation both in family law and other financial and personal areas that will be on everyone’s minds. Only time will tell what the final outcome will be.

While the country is still reeling from the EU referendum, we need to take a much closer look at how departure from the EU will impact family law in England and Wales.

Family law is not a stranger in the sense of taking steps to move away from the EU which will take quite a bit of unraveling from the EU legislation. The same can be said regarding many of our other laws. Without a doubt, this will take quite some time and the process will probably drag out for quite some time. Although the long-term impacts of Brexit, or departure of the UK from the EU, may not be fully felt for quite awhile, there are many consequences in regard to future divorces from the EU.

Nigel Shepherd, chair of the family law organisation Resolution, spoke after the referendum was announced. He stressed that the results have created a period of great uncertainty. This has emphasized the uncertainty arising from the fact that family law is essentially linked to the referendum and other jurisdictions.

The EU Legislation

Being in force since 2001, Brussels IIa has been an important part of the EU legislation and offers uniformity and a certainty in recognizing the divorce proceedings in various jurisdictions of the EU. With its absence, Family Court in the UK will need to adopt new avenues for addressing some important areas that will continually pop up in matrimonial proceedings.

As a perfect example, the most significant problem in issuing divorce proceedings will be to consider whether the court you are applying to actually has jurisdiction to accept your proceedings. Even more crucial could be involving multinational couples trying to figure out which court will hear their divorce petition. This is very important because different jurisdictions have to decide financial cases in different ways. Some courts could be seen as more favourable to one party over another. In many cases, there will be a mad dash to issue the petition first to the country that will be most favourable to the spouse. What country has jurisdiction is still governed by the EU legislation.

Bear in mind, in the absence of this important EU legislation, this will lead to even more uncertainty regarding who has the jurisdiction to hear the case. It has been iterated that the courts will have to fill the vacuum with something that would be similar to Brussels II in order to address the situation.

Adding to this, the Brussels IIa allows an order that was created in England to recognised and is enforceable in other jurisdictions. Orders that are commonly affected by the EU legislation includes child custody, other arrangements and matrimonial orders that need to be addressed by the new legislation in order to stay enforceable across the borders.

Keeping agreements made between multinational couples in a divorce are governed by Brussels IIa which allows for a more uncomplicated approach for enforcement across different jurisdictions. The enforcement of these agreements will need to be addressed in light of any new legislation and will have the greatest impact on matrimonial property and who owns what in different countries.

Other Arising Issues

Although family law is not the leading victim of departure from the EU (or Brexit), there will still be a great deal of uncertainty leading up to the formal Brexit while negotiations continue with the EU and this could take a number of years.

In a time of great uncertainty for couples divorcing, there will be even greater anxieties and fears that will arise. On a broader scale, the possible impact of Brexit could lead to an increase of interest rates, a fall in pension values, and the outcome of the property market. All of these situations will also add to many more concerns in what has become a very stressful time.

What’s In The Future

That said, some analysts have suggested that while breaking away from the EU will cause a period of uncertainty, there might be an opportunity to embrace change. By drafting domestic legislation that can provide better laws than what currently exists with the EU might be a positive solution.

The final outcome cannot possibly be known at this time. Couples who are dealing with difficulties are strongly advised to seek out guidance as soon as possible. They need to fully understand the complexities of Brexit and understand the impact that they may experience both on their personal and financial circumstances.

In Conclusion

With the changes of Brexit, there will be many challenges ahead and what courses will be the most positive for family law and many other legislation. Time will tell the final impacts and outcomes and how much anxiety and stress lies ahead. Family law has many challenges yet to be seen. Couples looking for divorces should get counsel in order to understand the changes and how they will be impacted.

Category: Family Law

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