Upon a new client’s arrival at our offices, it is not uncommon for them to be profoundly distressed, having experienced the dissolution of their marriage due to their partner’s decision to begin a new life with someone else. Occasionally, a prospective client seeks “revenge” and perceives the divorce proceeding as a means to financially discipline their soon-to-be ex-spouse.
In fact, one of the most prevalent presumptions regarding divorce is that if one spouse has had an affair and subsequently departed the union, there will be a financial repercussion. However, this rarely affects the overall distribution of assets, as in matters pertaining to money, the court is generally indifferent to the reason for the dissolution of the marriage rather than the resources available to each party and the equitable manner in which they should be divided.
I’m getting a divorce; does adultery weigh against me?
Contrary to expectations, it does not. One fallacy surrounding divorce is that the unfaithful spouse should be subjected to harsher treatment; however, marital dissolution occurs due to a multitude of factors and is seldom solely attributable to the actions of one individual. Judges are cognizant of the fact that one party’s infidelity may be the result of an intra-relationship predicament involving numerous issues. The Court holds that the allocation of matrimonial assets should be determined solely on the basis of fairness.
In practical terms, this means that if adultery is the reason for an irretrievable collapse of the marriage, neither you nor the partner who refrained from adultery will likely obtain a more favourable financial outcome as a result of the marriage dissolution.
The court is obligated to take into account all relevant circumstances, with specific attention to the Section 25 factors, and to apply these to the particular case at hand. In asset division, a 50/50 split is the initial ratio, and the court retains the authority to exercise some discretion in determining the final award. Cases are never identical.
Additionally, it is important to remember that adultery does not suffice as a legal basis for filing for divorce. A declaration of “intolerable” cohabitation with one’s spouse is an additional requirement for a divorce petition based on adultery. Consider whether the misconduct is the exclusive cause of the circumstances. It is possible that this is the very last stage of the marriage’s demise.
Ultimately, there is an aspect that merits consideration. There is a six-month statute of limitations from the date of discovering the infidelity; if you delay filing for divorce for any longer than that, the family courts will presume that you did not find the affair intolerable. Moreover, contrary to what television programmes and films may lead us to believe, it is not necessary to produce evidence of infidelity or identify the other individual in order to establish guilt. If your spouse refuses to acknowledge the adultery, you may instead pursue the matter on the grounds of unreasonable behaviour.
Regardless of your feelings of betrayal or guilt, keep in mind that infidelity is not illegal, and the courts have no authority to condemn you or your marriage. Their primary purpose is to facilitate an equitable resolution and safeguard the best interests of any children that you may have in common with your prospective ex-spouse. It is a different story if genuinely abhorrent conduct has occurred, such as domestic violence, but fortunately, such extremes do not impact the majority of divorcing couples.
