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Divorce often comes with serious financial repercussions. So, the very fact that committing adultery can result in divorce, means that it can have indirect financial implications.

But does committing adultery have different financial consequences compared to other reasons for divorce?

What are the grounds for divorce?

There is only one valid reason or ‘ground’ for divorce: the irretrievable breakdown of a marriage.

In order to prove that a marriage has irretrievably broken down, currently one of the following five ‘facts’ must be given to initiate the divorce procedure:

  1. Adultery;
  2. Unreasonable behaviour;
  3. Desertion;
  4. Living apart for more than two years (with agreement); or
  5. Living apart for more than five years (without agreement).

It is worth noting that ‘no-fault divorce’ is currently planned to be introduced in England and Wales from autumn 2021.

This will dispense with the abovementioned five facts, replacing them with a ‘statement of irretrievable breakdown’ which can be filed by either party. Also, it will also remove the ability to contest a divorce.

Does adultery affect my financial settlement?

A common misconception is that where adultery is stated as the reason for the irretrievable breakdown of marriage and consequent divorce, this will result in the party accused of adultery being penalised in the financial settlement.

This is not the case.

In the eyes of the law, there is no reason to treat adultery any differently compared to any of the other available grounds for divorce with respect to a financial settlement.

In fact, in the absence of no-fault divorce, divorcing couples sometimes tick the box of ‘adultery’ on the application, even though there was no adultery (although ‘unreasonable behaviour’ is a more popular option in this scenario) just to initiate the divorce process.

But where adultery has actually occurred, this may cause huge resentment and often leads to difficulty in agreeing to a financial settlement.

The spouse who was cheated on will sometimes seek to extract a much higher level of matrimonial assets than they would otherwise.

Divorces which are suffused in feelings of resentment will often be more expensive than more amicable break-ups because each party is more likely to engage a lawyer (who have fees) and matters can even end up in court (which also have fees).

If you are able to put these feelings aside, you may be able to reach an agreement without spending thousands and thus apply for a quick divorce online.

What is the view of adultery by the courts?

Adultery can increase the likelihood of divorce negotiations breaking down and ending up in court.

However, the court will not treat a divorce which is caused by adultery any differently from a divorce which has non-adulterous roots.

As we have already noted, the grounds for divorce will be the same: the irretrievable breakdown of the marriage. Therefore the court will apply exactly the same principles to achieve a ‘fair’ financial settlement.

Section 25 of the Matrimonial Causes Act 1973 sets out the various factors which a family law court should take into account when deciding on how any assets should be divided, including:

  • the welfare of any children under the age of 18 (this is the primary consideration);
  • the income, earning capacity, property and other financial resources which each of the parties to the marriage has or is likely to have in the foreseeable future;
  • the financial needs, obligations and responsibilities which each of the parties to the marriage has or is likely to have in the foreseeable future;
  • the standard of living enjoyed by the family before the breakdown of the marriage; and
  • the age of each party to the marriage and the duration of the marriage.

Should I admit to adultery?

Sometimes a spouse who is accused of adultery will try and contest the divorce if their husband or wife uses this as a reason on the divorce petition.

This may be a matter of principle (eg if they were falsely accused of having an affair). However, contested divorces often just delay the inevitable – and the no-fault divorce legislation mentioned above will dispense with the ability to contest a divorce.

If both parties want to get divorced, admitting to adultery (whether it happened or not) is often just a practical step to obtaining a decree absolute.

How should I get divorced if using adultery as a reason?

The essential divorce process is the same when using adultery as a reason: it’s just a matter of ticking the right box on the application form. However, it’s important to bear a couple of things in mind:

  • The petitioner (person applying for divorce) must submit their divorce petition within 6 months of becoming aware of the adultery.
  • The person accused of adultery cannot petition for divorce using the reason of adultery (their spouse must be the petitioner).

Will I have to pay for the divorce and fees if I committed adultery?

There is no difference to the administrative fees of getting divorced just because either party has committed adultery. The processing and court fees are the same whatever the reason for divorce.

However, as with obtaining a financial settlement, the greater likelihood of bad feelings can lead to higher overall divorce costs associated with litigation (solicitors fees etc).

This post was written by Mark Keenan. Editor of the Divorce Online Blog and Managing Director of Online Legal Service Ltd. Mark has been writing about divorce and related subjects for over 20+ years and is an expert in legal marketing.

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