As of April 6, 2022, divorce laws across the UK underwent significant changes. The introduction of no-fault divorce means that it is no longer necessary to cite a reason such as adultery when applying for a divorce. The sole ground for divorce is now the irretrievable breakdown of the marriage, and there is no requirement to provide a specific reason for this breakdown.
In the past, the media and popular culture often portrayed adultery as a common cause of divorce in the UK. However, prior to April 2022, adultery was cited as the reason for the breakdown of only around 10% of marriages in England and Wales.
Since the implementation of no-fault divorce, couples are no longer required to attribute adultery or any other specific reason to their divorce application. This change aims to eliminate the need to assign blame to either party, promote reduced conflict and encourage more amicable divorces.
What is adultery?
Adultery, as defined under previous divorce laws, involved a married person engaging in sexual intercourse with someone of the opposite sex who was not their spouse. Activities such as kissing, sexting, or virtual interactions did not legally constitute adultery under these laws. Furthermore, engaging in sexual relations with someone of the same sex did not qualify as adultery in the context of divorce.
Interestingly, individuals in same-sex marriages or civil partnerships were not legally considered to have committed adultery if they engaged in sexual relations with someone of the same sex.
It’s worth noting that emotional infidelity or close relationships outside marriage, while significant to the affected partner, did not meet the legal definition of adultery in the UK.
In the past, the distinction was crucial because adultery could serve as a basis for divorce. However, with the introduction of no-fault divorce, applicants are no longer required to provide evidence or cite adultery as a reason for divorce. Instead, they need only declare irretrievable breakdown of the marriage without the need for evidence to support this claim.
Is adultery grounds for divorce?
Under the previous divorce laws, adultery, along with desertion, unreasonable behaviour, and separation, were recognised as reasons for divorce. However, the underlying basis for divorce was always that the marriage had irretrievably broken down.
With the introduction of no-fault divorce in April 2022, applicants can declare irretrievable breakdown of the marriage using a “statement of irretrievable breakdown” in the divorce application without the need to specify reasons. Adultery was never the sole “ground” for divorce, nor is it used as a reason for divorce under the new legislation.
How does adultery affect a divorce in the UK?
Based on the nature of inquiries we receive, there is a perception that if a partner has committed adultery, it will somehow affect the divorce outcome, particularly regarding financial settlements or arrangements for children.
In reality, adultery has minimal legal impact on a divorce case. Adultery can no longer be used as a reason for divorce or as proof in divorce proceedings. Furthermore, adultery generally does not affect financial settlements, and unless it directly impacts the welfare of any children involved, it is not considered in discussions about child arrangements.
Who pays for divorce when there is adultery?
Whether or not adultery was committed will not affect who is responsible for paying divorce fees or any matters related to a financial settlement.
How does adultery affect divorce in the UK?
Under previous divorce laws, only the ‘wronged’ party could use adultery as a reason for divorce. If you were the wronged party and wanted to cite adultery, you would need to prove that adultery took place, unless your spouse was willing to admit to it.
However, with the updated divorce laws introduced in April 2022, adultery, along with separation, desertion, and unreasonable behaviour, no longer needs to be used as a reason for divorce. Under the new laws, adultery has no effect on the progression of a divorce. While an instance of adultery may contribute to a relationship breakdown, disclosing it will not impact the divorce process. The sole requirement for divorce is that the relationship has irretrievably broken down.
Adultery itself will not influence how divorce proceedings are initiated. It is up to the couple to decide whether they wish to make a joint divorce application. If not, one party can start a divorce application without the other party being able to contest it.
Does adultery affect a divorce settlement in the UK?
When considering a financial settlement between parties, the court’s primary concern is to ensure that the needs of the family, including both parties and any children, are adequately met.
There is often a question about whether one party can receive a more favourable divorce settlement due to the misconduct of the other party, such as in cases of adultery. However, instances where the behaviour of a former partner significantly affects family assets are rare. For example, in one case where the husband dissipated family assets, the court deemed it inappropriate for him to claim as much of the remaining assets as if he had behaved responsibly.
Regarding non-financial conduct, like adultery, solicitors and lawyers use a “gulp or gasp” test to assess its seriousness. This test requires particularly serious behaviour for the court to deviate from the standard division of assets. If the judge merely gasps upon hearing the behaviour, it is likely not serious enough. However, if the judge gulps, it indicates that the behaviour is sufficiently severe.
Instances where behaviour leads a judge to gulp are extreme and include scenarios like a wife shooting her husband with a shotgun, a husband committing incest with family children, or a wife attempting to stab her husband with a knife.
Generally, adultery alone is unlikely to be considered serious enough to warrant a change in the division of assets. Nonetheless, it is crucial for your solicitor to have all relevant information. My guiding principle is always to prefer having too much information to too little.
What happens if you have committed adultery?
I often hear from clients who are anxious about how their affair will impact their divorce. They ask questions like, “Will infidelity during separation affect my ability to see my children?” or “Will I receive less money from my spouse if I committed adultery?”
In reality, the reason for the breakdown of the marriage is not a significant factor in divorce or children’s proceedings. The court does not place much emphasis on the specific reasons for the marriage’s breakdown.
Committing adultery does not change a person’s basic needs, such as having a place to live and income to cover expenses. The court does not penalise someone for having an affair, regardless of any animosity between the spouses at the time.
Similarly, the court does not typically view it as wrong for a child to maintain contact with a parent who has committed adultery. In fact, there is a legal presumption in favour of children having regular contact with both parents, as far as the court is concerned.
How to prove adultery
Proving adultery to satisfy the courts is no longer necessary. In the past, a spouse would have needed to admit to infidelity, or evidence such as hotel bookings, witnesses, or conversation records would have been required.
However, with the introduction of no-fault divorce laws, the requirement to prove adultery has been eliminated.
Is it classified as adultery if you are separated?
There are several misconceptions about adultery and divorce. One common misconception is that you cannot commit adultery if you start a new relationship after separating from your spouse. This is incorrect—infidelity during separation is still considered adultery. If you engage in a sexual relationship with someone of the opposite sex while you are still legally married, it constitutes adultery under the law.
However, in terms of divorce law, adultery will no longer affect divorce proceedings because you no longer need to provide a reason, such as adultery, to legally end your marriage.
Is adultery a crime in the UK?
Adultery is not a crime in the UK and has not been one since the Matrimonial Causes Act in 1857.
Should you divorce on the grounds of adultery?
The sole ground for divorce in England and Wales is the irretrievable breakdown of the relationship, which can be established through a formal statement in your divorce application. You are not required to provide a reason, such as adultery, to support this.
This change in divorce law aims to reduce conflict and promote more amicable resolutions to divorces. If you have questions about the new divorce laws or need guidance on your specific situation, our team at DLS Solicitors can provide assistance.
Does adultery or having an affair affect child custody?
While the term “child custody” is often used colloquially, it does not exist under English law and can create a misleading impression of how arrangements for children are handled during divorce and separation.
Having an affair or committing adultery is unlikely to impact child arrangements. These arrangements are typically negotiated privately between parents, and if the matter were to go to court, the court would consider only what is in the child’s best interests when making decisions.
Adultery or an affair would only be relevant to child arrangements if it could adversely affect the child’s welfare. For instance, if the child were exposed to inappropriate situations due to the affair or adultery, this could potentially have an impact.
My husband or wife cheated, what are my rights?
There is a common misconception that if a spouse cheats or commits adultery, they are entitled to more in the divorce settlement, but this is not the case. Adultery is rarely considered when dividing finances and other assets during divorce proceedings.
When dividing finances, various factors are taken into consideration, including but not limited to:
- The duration of the marriage
- Whether there are any children involved
- The financial needs of each spouse
- Each spouse’s income and savings
If you are uncertain about what you might be entitled to in a divorce settlement, our expert divorce solicitors can carefully assess your circumstances and provide guidance on the likely outcome.
Should I admit to adultery in a divorce?
There is no longer a requirement for an individual to admit to adultery during a divorce. Admitting to adultery is unnecessary to secure the divorce and is rarely considered during financial settlements.
Although divorce has become a more straightforward process due to the new divorce law, if you have any confusion or concerns about the financial aspects of your divorce or the arrangements for your children, it is advisable to speak with an experienced divorce solicitor.
