Discovering your spouse has committed adultery can be devastating to your marriage. Whether the relationship was already struggling or it has come completely out of the blue, it is normal to feel betrayed and like you can no longer continue with the relationship.
There are many misconceptions surrounding divorce, particularly where adultery is involved. So, below we have debunked 10 of the most common misconceptions about divorce and adultery for you to consider if you are thinking about petitioning for divorce.
1. You do not have to state any reason to get a divorce
It is understandable that you may want to keep your reasons for divorce private. However, this won’t be entirely possible. In England and Wales, divorce law is currently “fault” based which means you must back up your decision to divorce with an acceptable reason.
There is 1 ground for divorce – the irretrievable breakdown of the marriage. To prove this, you must provide at least 1 of 5 possible facts:
- Unreasonable behaviour
- Separation for 2 years with consent
- Separation for 5 years, no consent needed
To successfully rely on adultery, your spouse must admit to it or you will have to prove it in court.
The Government eventually plans to scrap “fault” divorce in England and Wales, including the need to prove adultery. However, there are currently no timelines on when the law will change.
2. Adultery covers all types of sexual behaviour
Legally, adultery only covers sexual intercourse, which means behaviours such as kissing, webcam, virtual, and “emotional adultery” do not count for the purposes of getting divorced. This makes adultery very hard to prove if your spouse will not admit to it.
3. You can commit adultery with a person of the same sex
The legal definition of adultery only covers sexual intercourse with members of the opposite sex.
In a similar vein, under the current law, you cannot rely on adultery if you are in a civil partnership, even if your partner committed adultery with a member of the opposite sex.
4. Adultery petitions are the most common type of divorce petition
“Unreasonable behaviour” is actually the most common reason to divorce. This requires the petitioner must show that their spouse has behaved so badly it would be unreasonable to expect the petitioner to continue living with them.
As well as being its own individual fact, adultery can also be used an example of unreasonable behaviour. The benefit of relying on unreasonable behaviour instead of adultery is you do not need to prove that sexual intercourse took place. This can be particularly helpful where your spouse will not admit to adultery and you cannot prove there was a sexual relationship.
For this reason, and because it allows spouses to draw attention to a vast number of marital grievances, unreasonable behaviour is often a more popular choice in divorce petitions than adultery.
5. It is not adultery if you have already separated
If you engage in a sexual relationship with someone while you are still legally married, it is technically adultery even if you and your former partner do not live together anymore and are no longer emotionally or physically in a relationship.