Some people do not consider emotional affairs to be cheating, whereas others do. How do family lawyers regard an emotional affair with no physical involvement, and is it grounds for divorce? Here, we investigate emotional affairs, debate whether they should be considered cheating, and discuss whether they are grounds for divorce.
Recently, there has been a lot of discussion about emotional affairs and what they mean. Some argue that it is not cheating because there is no physical relationship with someone else. Some believe it is worse because the individual is becoming emotionally dependent on someone other than their own partner or spouse.
An emotional affair is a tie formed between two people that resembles or matches the closeness of a love relationship but is not physical. A survey conducted in the United States found that 35% of women and 45% of men have previously acknowledged to having an emotional affair.
So, what causes emotional affairs in the first place?
It does raise the question of if there is a larger issue within the marriage. There could have been a breakdown in communication, a lack of spending enough time together, or a general loss of satisfaction inside a marriage. Recent reports have focused on emotional affairs, and some people have been invited to comment on their experiences and the impact. Here’s what they had to say:
- “It’s now been 6 months, and I love him.”
- “After two years, my emotional affair is coming to an end.” “I’m sad and reflective.”
- “Now that my emotional affair is over, I miss it. I’m so lonely.”
It is obvious that an emotional affair may place tremendous strain on a marriage, potentially leading to marriage dissolution and divorce.
What about the law and divorce?
Prior to the change in divorce legislation in April 2022, we had clients who believed that their partner having an emotional affair constituted “adultery.” Their marriage had failed because their partner had emotional involvement with someone else. However, under the old legislation, an affair could only be considered adultery if it involved a sexual relationship with someone of the opposite sex.
This could be a heart-breaking finding for both parties whose partner had an emotional affair or was involved in a same-sex sexual relationship. The law was chastised for being hopelessly out of date (and rightly so). We had to tell our clients that rather than being characterised as adultery, the affair would be labelled as “unreasonable behaviour.” Understandably, it did not carry the same recognition of the affair that had caused the marriage to fail. Adultery and unreasonable behaviour petitions were fraught with complications, often resulting in the other party refusing to accept or admit the behaviour, wrangling over the wording of divorce petitions, animosity, and a sense of complete lack of control over the process for the person applying.
The old divorce legislation was totally repealed in April 2022, with the “facts” that had to be relied on (such as infidelity and unreasonable behaviour) being removed.
A person filing for divorce now only needs to confirm that the marriage has “irretrievably broken down” inside the divorce application. There is no need to be concerned about the other person refusing to recognise or admit the misbehaviour (which frequently results in the one initiating the divorce having no understanding of why the marriage failed).
Although the new divorce application does not require an explanation of what caused the marriage breakdown, the law has been simplified to the point where individuals on the other side of any affair (whether emotional or physical) can now make a divorce application and confirm there has been an “irretrievable breakdown” as a result of the affair. It now gives them some authority over the divorce process, which many people needed.
