What Is Adultery?

What Is Adultery?

What is adultery in divorce?

In legal terms, adultery is defined as engaging in sexual intercourse with a person of the opposite sex who is not one’s spouse. This definition specifically refers to the physical act of sexual intercourse. Therefore, other sexual, romantic, or emotional actions like kissing or touching do not legally qualify as acts of adultery.

Interestingly, under English law, if a partner engages in sexual intercourse with a person of the same sex, it does not meet the legal definition of adultery. Adultery, as defined by English law, specifically pertains to sexual intercourse between a man and a woman.

Before recent legal reforms, adultery was one of the five grounds on which you could base your divorce petition. However, with the implementation of ‘no-fault divorce,’ couples seeking divorce due to adultery now follow different procedures to dissolve their marriage.

Is there a difference between adultery and infidelity?

Infidelity and adultery are distinct concepts in legal terms. Unlike adultery, infidelity was not recognised as a legal ground for divorce. For instance, if a husband kissed another woman but did not engage in sexual intercourse, it would not constitute adultery under the law. Therefore, prior to the introduction of no-fault divorce, individuals would typically have to cite such behaviour as ‘unreasonable behaviour,’ which is a broader and more encompassing term for divorce proceedings.

Is virtual infidelity grounds for divorce?

With the widespread availability of dating apps like Tinder and Bumble, individuals who are inclined to stray now have the means to engage in virtual cheating.

One might assume that engaging in acts like ‘cybersex’ with someone other than one’s spouse would be considered adultery. However, while it constitutes infidelity, online sexual activity was not legally recognised as grounds for citing ‘adultery’ in divorce proceedings. In such cases, prior to the introduction of ‘no-fault divorce’ reforms, individuals would typically cite this behaviour as ‘unreasonable behaviour’ in their divorce applications. Now, under the new law, one does not need to provide a specific reason for divorce, thus avoiding the need to present distressing evidence to the court.

Can I still cite adultery as a reason for divorce?

Previously, you could cite ‘adultery’ as one of five reasons for divorce. However, under current English and Welsh divorce law, the concept of ‘grounds for divorce’ no longer applies.

Effective April 6, 2022, the Divorce, Dissolution and Separation Act was enacted, eliminating the need to assign blame to either party. Consequently, there is no longer a requirement to provide a reason for divorce in your court application.

Divorce proceedings can be emotionally taxing, and these reforms aim to facilitate more amicable divorces. Campaigners argued that the ‘blame game’ associated with naming a reason for divorce complicated matters, especially when dividing assets or making arrangements for children.

Could I still attempt to prove adultery in court?

With the new reforms to the divorce law in place, there is no longer a requirement to assign blame or prove unreasonable behaviour or adultery.

In the past, proving adultery posed significant challenges during divorce proceedings. Unless the offending party admitted to the act, proving adultery often relied on messages, phone calls, witnesses, or hotel bookings, with limited success.

In 2018, only 10.1% of divorces in England & Wales were granted on the grounds of adultery, reflecting the difficulty in proving physical sexual engagement outside of marriage.

Additionally, same-sex couples were unable to cite adultery if a partner strayed. Unreasonable behaviour was a more accessible and common reason for divorce among both opposite-sex and same-sex couples in 2019.

While some may prefer to legally cite a cheating partner as the reason for divorce, removing morality from the equation simplifies the divorce process.

The added burden of proving adultery, along with dividing finances and settling living arrangements, only fuels animosity between separating partners. Now, partners can heal from the devastation of infidelity outside the legal system, facilitating a quicker path towards a brighter future.

Is there an alternative reason to divorce if my partner has been unfaithful?

Since there is no longer a requirement to specify a reason for divorce, the original five grounds for divorce have been replaced by the sole alternative ground: ‘The Irretrievable Breakdown of the Marriage.’

While adultery may indeed be the cause of the marriage breakdown, there is no longer a legal obligation to state this in any divorce applications or court proceedings.

Who pays for divorce and adultery?

The financial aspects of a divorce, including who pays for the divorce proceedings, can vary depending on the circumstances. Generally, each party is responsible for their own legal fees and costs associated with the divorce process.

In cases where adultery is cited as a reason for divorce, it typically does not affect the financial responsibility for legal fees. The costs of the divorce, including court fees and legal expenses, are usually borne by each spouse individually, unless there are specific agreements or court orders specifying otherwise.

It’s important to consult with a legal professional who specialises in family law to understand the specific financial implications and responsibilities related to divorce proceedings in your jurisdiction. They can provide personalised advice based on your situation and the laws applicable to your case.

Does the cheating partner pay the divorce fees?

Frequently, the spouse who has been cheated on may view their divorce as a financial setback that could have been avoided if their partner had not committed adultery. As a result, they might feel that their partner should bear the responsibility for covering their legal expenses.

However, courts typically do not designate the partner who committed adultery as automatically responsible for court fees. The filing fee is usually paid by the party initiating the divorce process. Nevertheless, under the new system, couples can opt for a joint application, where both parties share the filing cost (£593).

Does adultery affect divorce settlements?

Even prior to the implementation of no-fault divorce, the grounds for divorce were deemed irrelevant when negotiating financial settlements, which must adhere to the Matrimonial Causes Act of 1973.

The spouse who was betrayed may seek to argue that their partner’s infidelity precipitated the demise of an otherwise stable marriage, and thus they deserve a larger portion of matrimonial assets. However, pursuing this argument typically escalates animosity and is likely to impede divorce settlement negotiations. Therefore, to facilitate smoother settlements, adultery has not been regarded as a determining factor in divorce settlements.

Does adultery affect asset division negotiations?

A no-fault divorce does not automatically result in a 50/50 division of assets between spouses. In fact, asset division operates similarly to how it did before the introduction of no-fault divorce.

Assets acquired during the marriage (and often assets owned before the marriage) are pooled into the ‘matrimonial pot.’ Both parties must then negotiate how to divide these assets.

During negotiations, there are legal factors that may influence one spouse to argue for more than a 50% share, although adultery is not considered a determining factor in asset division. Common considerations include arrangements for child custody or any existing prenuptial agreements.

To formalize the financial settlement and make it legally binding, a ‘consent order’ issued by the court must be obtained.

Can I add an infidelity clause to my prenuptial agreement?

You may have come across the concept of ‘infidelity clauses,’ often portrayed in US sitcoms where they are more commonly featured. However, in the UK, conduct such as infidelity or adultery does not factor into financial division considerations.

In certain cases, conduct can have some influence. For instance, if a partner’s contribution to the marriage was exceptionally positive or negative, the court may take this into account to avoid an unjust outcome.

While prenuptial agreements are typically binding, a judge has the authority to question their validity. Despite an infidelity clause appearing to be a way to impose consequences if a partner strays, a judge may scrutinise whether the signing partner was coerced or in a vulnerable state when agreeing to it.

It’s important to note that in England & Wales, no court has definitively ruled on the enforcement of penalty clauses within prenuptial agreements.

I’ve committed adultery; do I have an obligation to admit this in a divorce?

There is no legal requirement to disclose adultery during the divorce process. You are not obligated to mention this in your divorce application or admit to it during any court proceedings.

Many spouses who have committed adultery may worry that their affair will lead to financial losses in court or affect arrangements for their children. It’s important to note that the court will not penalise a spouse for adultery, and as mentioned, it will not impact the financial settlement between spouses.

If the court is aware of adultery, will child arrangements be affected?

When children are involved, the court generally prioritises maintaining contact between the children and both parents, regardless of any adultery committed by either partner. Adultery alone would not typically impact arrangements for parental contact. Only in cases involving extremely serious reasons would the court consider preventing one partner from having contact with the children.

How DLS Solicitors can help you

No matter the circumstances surrounding adultery, its impact on relationships can be profound. If you are considering separation from your partner due to adultery or any other reason, it is crucial to have access to expert legal guidance to navigate this challenging process. We understand the emotional strain experienced by our clients during such times, and we possess extensive expertise in this area of the law.

Here’s why you should choose us for your legal needs:

  • We are highly ranked among independent legal guides.
  • Many of our family lawyers are members of Resolution, an organisation dedicated to resolving family law matters constructively.
  • We are accredited by industry specialists.
  • We offer both fixed-fee and flexible-priced divorce services to ensure a cost-effective approach while achieving the desired outcome.
  • We collaborate closely with a variety of dedicated charities across England, Scotland, and Wales that provide comprehensive practical advice and support.

Our goal is to provide you with the support and legal counsel you need during this challenging time.

Avatar of DLS Solicitors by DLS Solicitors
7th May 2024
Avatar of DLS Solicitors
DLS Solicitors

Our team of professionals are based in Alderley Edge, Cheshire. We offer clear, specialist legal advice in all matters relating to Family Law, Wills, Trusts, Probate, Lasting Power of Attorney and Court of Protection.

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