It is an understandably emotional process going through a divorce, especially when the reason for the divorce is adultery. If you are wondering how adultery will affect the divorce, it is important to make sure you have all of the facts. This is equally true whether it is yourself or your spouse who has been unfaithful.
Using adultery as the reason for divorce
In England and Wales, the law states that you must declare one of five reasons as to why you are requesting to divorce your spouse. The established reasons for divorce are:
- Unreasonable behaviour
- Living apart from your spouse for more than two years (your spouse’s consent to the divorce is required)
- Living apart from your spouse for more than five years (your spouse’s content is not required)
However, the divorce law rules will be changing once the Divorce, Dissolution and Separation Act 2020 comes into force on the 6th of April 2022. This means that those wanting a divorce will not have to provide a motive as to why they want to get divorced from their spouse.
What is adultery in divorce?
It’s easy to presume that adultery covers all forms of sexual behaviour with a third-party, but this is not the case. Actions that many people would consider as adultery, such as kissing, heavy petting, sexting, and virtual sex, do not legally count as adultery.
Legally, adultery can only be used as a reason for divorce when sexual intercourse has occurred with a person of the opposite sex. This means that any other sexual behaviour cannot be used as a reason under ‘adultery’ but could potentially be used as a reason for divorce under ‘unreasonable behaviour’.
Even if you and your spouse are separated, if you are having sexual intercourse with a person of the opposite sex, your spouse can file for divorce under adultery.
Does adultery affect the divorce settlement?
The usual misconception around adultery is that the “victim” of adultery will be entitled to more money than their spouse is. When the court determines who is entitled to what marital assets, the reasons for the divorce are very rarely taken into account. Therefore, it is unlikely that the grounds for divorce will have an effect on the divorce settlement.
However, if either spouse is cohabiting with a new partner, this could potentially affect the settlement decision. An example of this is if the cohabitee financially supports the spouse with any outgoings, the court could then determine that they will need less income from their spouse.
Can I use my own adultery as a reason for divorce?
If you have committed the act of adultery in your marriage and are looking to divorce your spouse, you cannot use adultery as a reason for divorce. Adultery can only be used as a motive for divorce when your spouse has committed it.
What are the terms to use divorce as a reason for adultery?
Proving adultery as a reason for divorce can be a complicated process. In order to obtain a divorce for the reason of adultery, there are some terms that must be followed, these are:
- You must file for divorce within six months of knowing about the adultery. If an application is submitted after this time frame, it is not allowed to be used as a reason for divorce
- Your spouse must have committed the adultery; it cannot be adultery you have committed
- It has to be sexual intercourse with someone of the opposite sex
It is hard to prove that your spouse has had sexual intercourse with another person if they won’t admit it. In that case, you will need to apply for divorce under one of the other reasons for divorce, such as ‘unreasonable behaviour’, which requires four to five examples of their ‘unreasonable behaviour’.
If your spouse does admit to adultery, the process for divorce under adultery can be far quicker than the other grounds.
Who pays for divorce committed under adultery?
There is a common myth that the adulterer is the person who pays for divorce in the event of adultery. Although this myth might seem reasonable, the individual who applied for divorce is the one who is responsible for paying the divorce fees, and each individual will have to pay for their own solicitors’ fees.
Do you need advice and support regarding divorce following adultery?
At Preston Redman, we are here to help you through this difficult time. Our team of divorce solicitors have extensive expertise in divorce and separation matters, including divorce adultery. We offer clear and precise information to help you understand the correct approach to take, as well as providing emotional support.
For further information surrounding adultery and divorce settlements, please contact a member of our team by giving us a call at our office in Bournemouth or fill in our online enquiry form for a quick response.