My Husband/Wife Committed Adultery What Are My Rights?

Divorce is never easy, but when a partner has committed adultery it can be an even harder process to navigate.

In this article, we cover everything you need to know about getting a divorce based on your husband or wife’s adultery, while dispelling all common myths and providing you with the legal facts including answering some questions our family law experts get asked a lot.

What is the legal definition of adultery in the UK?

Adultery is legally defined in UK divorce law as a spouse having sexual intercourse with a member of the opposite sex and that the other spouse can not continue to live with them. Most people understandably believe that adultery is a black and white issue; something that is clear and obvious – simply the marital infidelity of a partner.

However, when it comes to citing adultery to prove the breakdown of a marriage the UK divorce law is rather more complicated.

Adultery refers to sexual intercourse between a spouse and another person of the opposite sex.

So for example, if your husband is caught chatting to another woman on a dating website or app, that wouldn’t constitute adultery in the eyes of the law. The following actions would also not constitute adultery:

• Kissing
• Heavy petting
• Texting/Sexting
• Webcam or virtual sex, etc.

Therefore exactly just what constitutes adultery in divorce is precise – adultery can only be used as a ground for divorce if there had been actual sexual intercourse between a spouse and a person of the opposite sex.

Is adultery ground for divorce still?

No, it is no longer possible or even necessary to submit a divorce application using adultery as grounds for divorce due to the introduction of the new divorce law in England & Wales.

As of 6 April 2022 No-fault Divorce, as it is commonly referred to, is the new divorce law. Under these new rules there is no longer any need to provide a reason or apportion blame for the divorce, hence the term ‘no-fault’.

This means there is now only one ground for divorce – The Irretrievable Breakdown of the Marriage.

Furthermore, the new laws also remove the ability for a spouse to contest the divorce, removing a substantial cause of conflict at an already difficult time. While this doesn’t change how hurtful adultery can be, it does make the process of getting a divorce much simpler.

Remeber, divorce does not become automatic after a long period of separation. Whilst adultery cannot be cited on a divorce petition, you can still file for divorce on the basis of the adultery casuing the irretrievable breakdown of the marriage.

Can adultery affect the outcome of a divorce settlement?

No it does not, it’s a common misconception, but it is one that has a clear rationale behind it. If one spouse has caused the breakdown of the marriage due to their adultery, then why shouldn’t the other party have a better outcome?

Yet most petitioners still believe they are entitled to a bigger financial settlement due to their ex-spouse’s adultery, and this continues to be one of the biggest myths surrounding divorce.

Does adultery affect divorce settlement?

Normally the grounds for divorce are considered to be irrelevant when it comes to divorce financial settlement negotiations as all financial settlements must be made in line with the Matrimonial Causes Act 1973.

Considerations around marriage length, children and earning potential amongst a host of other things are what will ultimately define how your divorce settlement looks and not the behaviour of spouses.

Under English law, the grounds for divorce or behaviour of a spouse are rarely if ever taken into consideration by divorce courts when deciding who gets what in a financial settlement.

Where adultery has occurred it often causes huge resentment and may lead to difficulty in reaching a financial settlement. This is because the spouse who was cheated on will sometimes seek to extract a much higher level of matrimonial assets than they would otherwise. Therefore adultery can increase the likelihood of divorce settlement negotiations breaking down and ending up in court.

The Matrimonial Causes Act sets out the various factors which a family law court should take into account when deciding on a divorce financial settlement and how any assets should be divided, including:

• The welfare of any children under the age of 18 (this is the primary consideration)
• The income, earning capacity, property and other financial resources which each of the parties to the marriage has or is likely to have in the foreseeable future
• The financial needs, obligations and responsibilities which each of the parties to the marriage has or is likely to have in the foreseeable future
• The standard of living enjoyed by the family before the breakdown of the marriage, and the age of each party to the marriage and the duration of the marriage

Who pays for a divorce adultery?

The person filing for divorce must pay the court fees but under the new system you can make a joint application and share the cost (currently £593). There is no difference to the administrative fees for getting divorced just because either party has committed adultery as the processing and court fees are the same whatever the reason for divorce.

However, as with obtaining a financial settlement, the greater likelihood of bad feelings can lead to higher overall divorce costs associated with litigation (solicitors fees etc).

Divorces which are suffused in feelings of resentment will often be more expensive than more amicable break-ups because each party is more likely to engage a lawyer and matters can even end up in court which then further increases the cost.

If you are able to put these feelings aside, you may be able to reach an agreement without spending thousands and thus apply for a quick divorce online.

Dealing with finances in an adultery divorce

Discovering a spouse has committed adultery can be destructive to any marriage, regardless of whether the relationship was already struggling. It is completely normal to feel betrayed and you can no longer continue with the relationship.

Even so, it’s advisable and sensible to draw a line in the sand when it comes to divorce, regardless of the reasons behind the divorce. The agreement you reach on your finances will be based on other facts, such as future earning potential and fairness.

To put your financial settlement into a legally binding court order you’ll need to obtain what is known as a financial consent order.

This court order is legally binding and will ensure that things such as division of property, lump-sum payments from pensions and even maintenance payments are carried out.

If the agreement you reach isn’t documented and processed by a Judge then the court can’t help if actions aren’t carried out by one party.

Adultery and divorce

“It should be noted that the following information is now out-of-date but has been retained for informational purposes for those who are interested in how adultery was previously used in divorce proceedings under the old divorce laws up until April 2022.”

Do you have to prove adultery for divorce?

If you think about it, sexual intercourse is actually very hard to prove if the other spouse will not admit to it.

In the absence of a DNA paternity test to determine if a husband or another man is the biological father of a child, how do you prove your spouse has had sexual intercourse with another person? Without actually being there in person or getting anecdotal evidence from someone else who witnessed it then it’s very difficult.

Basing a divorce on the grounds of Adultery could be quicker than the other grounds available, but only if the spouse was prepared to admit it, as it did not require any discretion on behalf of the judge dealing with the divorce.

I can’t prove adultery, what other options do I have?

Under those circumstances, the most common grounds for divorce were Unreasonable Behaviour Divorce. This ground involved giving the Court 4 or 5 examples of a spouse’s unreasonable behaviour, the first of which could be the spouse having an inappropriate relationship with another person.

If your husband or wife did not answer the petition or admit to the allegations, you could still proceed with the divorce as unreasonable behaviour did not require proof of a physical act, unlike adultery.

Time limits involved with adultery cases

There were strict time limits involved in adultery cases that you needed to be aware of when using adultery to file for divorce.

This related to the second part of the adultery-based ground for divorce which stated that the couple could no longer live together. Those two elements both had to be met and therefore the court gave both parties 6 months to enable them to think about their actions.

Essentially the petitioner had to file the divorce petition with the court within six months of becoming aware of the adultery, otherwise, the law stated they had condoned the adultery.

The third person in these cases was called the co-respondent and this could cause difficulties with cases where the co-respondent did not admit the adultery or acknowledged service.

Also if costs were claimed against both the respondent and co-respondent, it was more unlikely that they would co-operate with the divorce.

Not naming the co-respondent on the divorce petition

When considering adultery as the reason for divorce the courts referred to Practice Direction 7A of the Family Proceedings Rules 2010 that said in all but exceptional cases, the co-respondent should not be named and rather, the divorce should proceed on the basis of an unnamed person.

As a result, people were generally advised to file on the basis that the co-respondent should not be named and indeed many solicitors would not prepare an adultery petition for clients where they wished to name the co-respondent.

Should I admit to adultery in divorce?

Another myth is that by admitting to adultery in divorce, it will somehow have an effect on any children or financial proceedings.

So what happens if you admit adultery in a divorce? The courts generally will not take the moral behaviour of the parties into account unless it is relevant to the case. For example, fraud in the case of finances or the if co-respondent is unsuitable to be around children.

How do you prove adultery in a divorce UK? As you can tell from reading this post, actually proving adultery is very difficult, which is why most couples previously opted to use ‘unreasonable behaviour’ as a ground on which to base their divorce.

What is the view of adultery by the courts?

In the eyes of the law, there is no reason to treat adultery any differently compared to any of the other available grounds for divorce with respect to a financial settlement.

Adultery can increase the likelihood of divorce negotiations breaking down and ending up in court.

However, the court will not treat a divorce that is caused by adultery any differently from a divorce that has non-adulterous roots.

Divorce-Online can advise you on how to proceed with your divorce petition or financial settlement. Speak to our friendly team on Live Chat for quick and reliable answers to your questions or call us on 01793 384 029 for no obligation information and advice on how no-fault divorce works.