Adultery and Divorce

With around 1 in 5 adults admitting to having had at least one affair in their life, it is not surprising that adultery is the reason given for around 1 in 10 divorces in England and Wales.

Adultery can be devasting for those cheated upon, as well as for the families caught up in a divorce resulting from adultery. However, even when dealing with the emotional fallout of infidelity, it is still possible to handle your divorce in a way that minimises conflict while allowing you to end your marriage on terms that work for you and your loved ones.

Crisp & Co’s expert divorce lawyers specialise in non-confrontational divorce, with extensive training in mediation and collaborative law. This focus on alternative dispute resolution means we can typically help you get divorced without the need for court proceedings under even the most challenging circumstances, such as those involving adultery.

We also have strong experience with adultery in relation to civil partnerships and same-sex marriage, where the current rules are slightly different than for opposite-sex divorce.

No matter how difficult the situation surrounding your divorce, we aim to provide the legal, practical and emotional support you need to navigate your divorce as easily as possible, while making sure your interests and those of your loved ones are protected at all times.

If you are thinking about getting divorced, please get in touch with our divorce solicitors in London and across the South East now for friendly, sensitive advice.

You can call us on 020 8017 8962 or contact your local Crisp & Co office.

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Divorce on grounds of adultery

Adultery is one of the five reasons you can give in a divorce petition for the breakdown of your marriage. The others are:

• Unreasonable behaviour
• Desertion (where your spouse has left you without your agreement, without good reason and with the intention to end your marriage for more than 2 years out of the last 2.5 years)
• Separation for more than 2 years (if your spouse agrees to the divorce)
• Separation for more than 5 years (whether your spouse agrees to the divorce or not)

Adultery is often the most contentious of the possible reasons for divorce as your spouse may be unwilling to admit that they were unfaithful or be concerned that if they formally admit this, it may affect any divorce settlement you reach or their access to any children you have together.

It is therefore important to think through all of the possible implications before deciding to cite adultery as the reason for your divorce. In some cases, it may be more simple to use ‘unreasonable behaviour’ as your spouse may be less likely to object to this.

We strongly recommend discussing this with one of our expert family law solicitors before filling out and submitting your divorce petition. If you feel comfortable doing so and your spouse is receptive, it can also be beneficial to discuss this with your spouse. This can allow you to agree what to include in the divorce petition, minimising the likelihood of your spouse choosing to defend the divorce, which can make the divorce process much longer, more expensive and involve more conflict.

What counts as adultery?

Adultery is legally defined as “sexual intercourse between a man and a woman”. For the purposes of adultery, ‘sexual intercourse’ covers a wide range of sexual activity, but does not normally include kissing, sexual touching or virtual sex.

Time limits for using adultery as a reason for divorce

When using adultery as the reason for your divorce, you will need to submit your divorce petition within 6 months of becoming aware of the adultery. If you wait longer than this, you will be considered to have accepted the adultery.

It is also important to note that you cannot use adultery as the reason for divorce if you and your spouse continued to live together as a couple for 6 months or more after you found out about their infidelity.

While there is no legal definition of living together as a couple, this is often taken to mean that you continued to share a home and living costs. If you intend to use adultery as a reason for ending your marriage, it is normally advisable, therefore, either for you to leave the family home or to insist that your spouse does.

We strongly recommend taking legal advice before making any such decisions, however, to ensure this does not cause unnecessary conflict or result in any harm to your interests or those of any children you have.

If you are concerned about how practical issues will be dealt with if one of you leaves the family home, for example how the rent or mortgage will be paid, it may be worth considering creating a separation agreement. This is something we will be happy to advise you about.

Adultery and same-sex marriage

While all of the same reasons for divorce are available to same-sex couples, it is important to note that the law only defines adultery as involving sexual intercourse between a man and a woman. This means that same-sex infidelity does not currently qualify under the law as adultery.

Same-sex adultery will therefore need to be cited under the grounds of ‘unreasonable behaviour’ in a divorce petition.

Adultery and civil partnership dissolution

Because the law defines adultery as involving opposite-sex infidelity, adultery was not included as a potential reason for civil partnership dissolution when civil partnerships were first introduced.

As a result, any type of infidelity, whether between people of the same sex or opposite sex, will need to be cited under ‘unreasonable behaviour’ when applying for a civil partnership dissolution.

What happens in a divorce if you commit adultery

If you commit adultery and wish to end your marriage, you cannot cite this as the reason in your divorce petition. You would instead need to provide another reason for wanting to end your marriage, with ‘unreasonable behaviour’ being the most commonly used option.

However, it is important to bear in mind that if your spouse is aware of the adultery and you then file for divorce accusing them of unreasonable behaviour, this can result in resentment and make conflict more likely.

We therefore strongly recommend seeking expert legal advice and support to help you discuss the matter with your spouse and find a way forward that works for both of you, while minimising the potential for conflict.

How to prove adultery

Adultery can be hard to prove if your spouse is not willing to admit that they were unfaithful. Hard evidence such as a text, email or letter explicitly stating that your spouse had sex with someone else during your marriage might be considered proof, but may not be admissible if the matter goes to court, depending on various factors, including how you obtained the information.

If your spouse is unwilling to admit to their adultery, it is often more straightforward to apply for a divorce on the grounds of ‘unreasonable behaviour’. This is something we will be happy to advise you on.

Financial implications of adultery for divorce

Many people believe that if they or their spouse admit to adultery, this will have an impact on any financial settlement they reach. This is a misconception, however, as the process of reaching a financial settlement is entirely separate to the process of legally ending your marriage.

The reason for your divorce should, therefore, have no direct impact on the financial settlement you reach, whether this is done through voluntary agreement or via court proceedings.

However, if you committed adultery and are attempting to reach a voluntary financial settlement, it is possible that any resentment your former spouse feels may affect their approach to the proceedings and the level of settlement they are willing to accept.

Using alternative dispute resolution methods, such as mediation and collaborative law, can help to remove the conflict from divorce, even where one spouse has committed adultery. This can help you to agree a fair settlement, even where one spouse is still unhappy about the reasons for the divorce.

Impact of adultery or arrangements for children

As with making a financial settlement, making arrangements for children following divorce is entirely separate to the divorce proceedings. The key thing is therefore to focus on keeping the process amicable, so you and your spouse are more likely to be able to agree a positive way forward that works for you and your children.

Why choose Crisp & Co for your divorce?

Crisp & Co’s specialist family lawyers are experts in removing the conflict from divorce and separation, even in difficult situations, such as where one partner has committed adultery or is suspected of committing adultery.

We have decades of experience providing practical and emotional support to people going through divorce, including where adultery is a factor. Our focus is on helping you to deal with the end of your marriage as swiftly, smoothly and simply as possible, while ensuring your interests and those of your loved ones are protected.

Our team includes trained mediators and collaborative lawyers, who can assist you with resolving all of the issues surrounding divorce without the need for court action. This includes making financial settlements and arrangements for children.

Our divorce lawyers are members of Resolution, a group of family lawyers committed to removing the conflict from family law. This reflects our commitment to keeping divorce amicable wherever possible.

However, we recognise that not all divorces can be resolved out-of-court, with those involving adultery tending to be more contentious than under other circumstances. Our lawyers have strong experience with dealing with divorce through courts, so can offer the expert representation and skilled advocacy needed to secure the right result for your divorce in even the most challenging situations.

Get in touch with our divorce solicitors in London & South East England

For clear, friendly, practical guidance for your divorce, please contact our divorce solicitors in London and across the South East now by calling 020 8017 8962 or contacting your local Crisp & Co office.