Adultery & Divorce

Adultery is a reason or fact which a couple may use to satisfy to the court that their marriage has broken down irretrievably in order to obtain a divorce. The Cambridge Dictionary defines adultery as sex between a married man or woman and someone who her or she is not married to. When considering a divorce, the UK courts see adultery as when one spouse has sexual intercourse with a member of the opposite sex which causes the other spouse to deem the marriage as being broken and cannot continue to live with them.

It is important to note that based on the definition of adultery which the UK courts use, civil partners and couples of the same sex are unable to cite adultery as a reason for the breakdown of their civil partnership given that under the UK courts sexual intercourse between partners of the same sex is not possible.

It is important to note that you can only petition for a divorce within 6 months of finding out that your partner has committed adultery. If you wish to take any action after this time limit has been reached, then you will not be able to rely on the reason of adultery for a divorce. In such situation you may to use the reason of unreasonable behaviour.

Adultery only refers to sexual intercourse between one spouse and another member of the opposite sex. Therefore, it does not cover any sexual activity and only covers situations where sexual intercourse has taken place.

Therefore, where one spouse is speaking to another person, kissing another person, texting another person, or is having virtual sex, this is not adultery in law; the same applies to emotional affairs, even if they are serious within a relationship. For this reason, looking to prove this ground can be very difficult where one spouse will not admit it.

When satisfying the ground for divorce, that the marriage has broken down irretrievably, you must be able to demonstrate that you find it intolerable to remain married to their spouse. On such basis and given that adultery is a fault-based ground you are unable to rely on your own adultery as a reason for divorce. You are therefore unable to file for a divorce using the reason of adultery if you have committed adultery. The courts will not accept that due to your own actions and adultery you are unable to continue living with or remain married to your spouse.

A spouse who has committed adultery will usually have 2 options. One is in which their spouse files for a divorce based on their adultery and the other being the spouse who has committed adultery files a divorce based on their spouse’s unreasonable behaviour. You are therefore unable to use your own adultery to satisfy the ground of divorce and must therefore consider one of the other reasons to show that your marriage has broken down irretrievably.

If you are looking to rely on your partners adultery to obtain a divorce, then you must prove that your spouse has engaged in sexual intercourse with a person of the opposite sex. If you are unable to prove that sexual intercourse has taken place or can only evidence other activities which may constitute to cheating such as texting, kissing or meeting someone else then you may not be able to prove adultery and may therefore have to consider using the fact of unreasonable behaviour to terminate your marriage.

Using your partners adultery to obtain a divorce can be very difficult. It is very hard to prove your partner has engaged in sexual intercourse without you being present or obtaining evidence from another person who also witnessed your partners actions. If your partner is not prepared to admit their adultery, then you may find yourself having to rely on another reason to obtain a divorce

What is important to note is that if your partner admits to their adultery then the process of obtaining a divorce maybe quicker.

The easiest and most convenient way to prove adultery is if your partner is willing to admit to this. If your partner does not accept or admit their adultery then gathering evidence may be very difficult or impossible to prove your partners adultery.

If your partner is not willing to accept and admit their adultery you may use other evidence which can prove adultery. This could be in the form of text messages which your partner may have sent to the person they committed adultery with, or text messages from the other person which you have seen, and you could provide. You may also have evidence of hotel bookings which your partner may have booked to engage in sexual intercourse and commit adultery. However, hotel room bookings alone may not be sufficient to prove adultery unless you or someone else witnessed your partner entering the room with a person of the opposite sex. Even then it may be very difficult to prove that sexual intercourse took place.

You could attempt to prove adultery of your partner through a witness who has physically seen the sexual intercourse take place. However, suspicions or the following signs may not be sufficient to prove your partners adultery:

• Privacy from your partner in respect of their form, computer, or other forms of communication.
• Your partner claiming to spend more time at work or making excuses not to stay at home.
• Your partner criticising you more than usual or looking to create arguments with you or becoming distant and losing interest in you.
• Your partner taking more care about their looks such as dressing differently and being more concerned about their physical appearance.

Separation could take form by way of living in separate households but may also take place despite living in the same household. In order to be deemed as separated within the same household you must not engage sexually with your spouse, must not carry out household task for each other or live as a husband and wife.

If you are separated in separate households or within the same household, you are still married until your divorce is finalised. You will remain legally married until you receive your decree absolute. This is the final decree which confirms that your marriage has been terminated. Following you receiving the decree absolute you are no longer deemed as being married.

Common question which our family lawyers encounter is, is it adultery if you are separated? And whether sleeping with someone whilst separated is adultery? Quite often parties may separate however may not be legally divorced. From a legal perspective despite being separated you are still tied in a marriage until your divorce is complete and you have obtained the final decree absolute.

If you or your partner sleep with someone while separated but are still legally married then this would amount to adultery. An exception to this may be where one or both of you have decided your marriage has broken down and you meet with another person to pursue a relationship. In such an instance sleeping with someone or engaging in sexual intercourse while separated will not amount to adultery. This is because your marriage has already broken down for another reason which is acknowledged and not due to sleeping with someone.

Before April 2022, adultery was one of the fault-based reasons used in the divorce process, with the Petitioner relying on their partner’s actions to show the marriage had broken down to a point where they could not reasonably be expected to continue living together.

When relying on a fault-based reason for the divorce, the petition may include a claim for court fees. If successful, this would mean that the spouse who has committed adultery may be liable to pay the divorce fees. This will be the case where the courts agree and attribute the fault of the Respondent as the cause for the divorce.

If, however, the blame or the adultery of the other partner is not being used as the cause for the marriage breakdown, then despite citing adultery as a reason for the divorce the petitioner may not be able to claim any costs and may also need to pay towards their own legal costs.

However, in the majority of cases, our divorce law specialists have noted that the petitioner, as the spouse who files for the divorce, will usually be paying for the costs of the divorce. Couples may however agree to split the costs of the divorce between them.

As with any reason for divorce, with adultery when dividing finances after divorce, the courts will investigate the section 25 factors. These factors revolve around considering the needs of the separating parties. Adultery usually does not determine asset division or dividing assets unless the conduct has a direct financial consequence. The starting point in most divorce settlements is to consider financial settlements and marital assets on a 50/50 split basis. Where one parties income, needs require a more favourable split the courts may look to deviate from a 50/50 split by considering the needs of the parties and the section 25 factors.

When relying on a fault-based reason for divorce such as adultery or unreasonable behaviour, the party who has been cheated upon may ask how adultery affect divorce and the divorce outcome, and feel that they should be entitled to a more favourable divorce and financial settlement due to the actions and conduct of their partner. It is important to note that the court does not look to penalise any party unless there are exceptional circumstances.

It is therefore unlikely for a court to consider the adultery of one partner when considering the financial settlement, and adultery affect divorce settlement only in very unusual cases rather than as a normal rule. The behaviour and conduct of one partner are not a deciding factor when the court awards financial settlements, and adultery does not usually affect financial settlements beyond possibly increasing legal costs if proceedings become longer or more complex. Therefore, if you are looking to file for a divorce due to reasons of adultery you should not expect that this would affect the outcome of a divorce settlement unless exceptional circumstances apply to your case. You must remember that the court is not biased if you have committed adultery. The courts understand that marriages may break down due to faults of both spouses and adultery can often be caused by the behaviour of your partner, with extreme conduct such as domestic violence being a clearer example of the kind of issue a court may treat differently.

The question of whether you can date whilst separated is a difficult question. Despite being separated you are still legally married until your divorce is finalised. On the other hand, because you are no longer living as a married couple you may feel that you should date. It is likely accepted that whilst separated you can date to pursue new relationships. Dating alone does not amount to adultery. If, however you engage in sexual intercourse with a person of the opposite sex whilst despite being separated but legally married you may be committing adultery which your partner may use as a reason for divorce.

Many couples separate but remain married legally. In this situation is it still adultery if you are separated UK? The answer to this question is yes. Regardless of whether your partner has committed adultery first, or you have moved on with a new partner, or you engage sexually whilst on holiday and have sexual intercourse. The answer is yes. Your partner will therefore still be able to file for a divorce on the basis of this ground to prove that your marriage has broken down irretrievable to a point that they cannot continue living with you.