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What Is The Definition of Adultery in Divorce?

Adultery is defined in UK divorce law as your spouse having sexual intercourse with a member of the opposite sex and that the other spouse cannot continue to live with them.

Most people believe that adultery is black and white; something that is clear and obvious. It’s simply the infidelity of a partner.

However, when it comes to using Adultery to prove the breakdown of your marriage UK divorce law is a bit more complicated than that.

Adultery, alongside unreasonable behaviour, is one of the most widely used reasons for divorce in England and Wales.

To use Adultery to obtain a divorce you must;

  • File for divorce within six months of finding out about the adultery taking place.
  • It must be the adultery of your partner, not based on your actions.
  • Your husband or wife must have had sexual intercourse with someone of the opposite sex.

Civil partners and same-sex spouses are unable to use adultery as a reason for the breakdown of their civil partnership as sexual intercourse is not possible between partners of the same sex in the eyes of UK divorce law.

What is and isn’t considered to be Adultery?

You now know that Adultery refers to sexual intercourse between your husband or wife and another person of the opposite sex.

Therefore, for example, if your husband was caught speaking to another woman on a dating website or app, this wouldn’t constitute Adultery.

The following actions would also not constitute Adultery;

  • Kissing
  • Heavy petting
  • Texting/Sexting
  • Webcam or virtual sex, etc.

Adultery can only be used if there has been actual sexual intercourse between your husband or wife and a person of the opposite sex.

Civil partners and same-sex marriages cannot be dissolved using adultery as the reason for divorce and they must seek another ground for dissolution.

Important information when filing for divorce using Adultery

You must not have lived together as a couple for six months or longer after you discovered that your partner had been unfaithful with another person. If you remain living together as a couple for six months, you will not be able to use this as your reason for divorce.

In the eyes of the Court, you have accepted your husband or wife’s actions and therefore you must seek another ground for divorce, such as unreasonable behaviour or two years separation with consent.

Proving Adultery has occurred is very difficult

If you think about it, sexual intercourse is actually very hard to prove if the other spouse will not admit to it.

How do you actually prove your spouse has physically had sexual intercourse with another person without actually being there in person or getting evidence from someone else who also witnessed it?

divorce cases based on Adultery are generally quicker than the other grounds if your spouse is prepared to admit it, as it does not require any discretion on behalf of the judge dealing with the divorce.

As long as the acknowledgement of service is completed correctly, the judge has no choice but to grant the divorce.

I can’t prove Adultery, what other options do I have?

Well, in these circumstances, the most common grounds for divorce is Unreasonable Behaviour. This ground involves you giving the Court 4-5 examples of your spouse’s unreasonable behaviour, the first of which could be your spouse having an inappropriate relationship with another person.

For a list of potential examples, you can use our list of unreasonable behaviour examples.

You are then able to file for divorce on the grounds of unreasonable behaviour.

If your husband or wife does not answer the petition or admit to the allegations, you can still proceed with your divorce as unreasonable behaviour does not require proof of a physical act, unlike adultery. Cases of this nature, typically take 4-5 months when handled by Divorce-Online.

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Time limits involved in adultery cases

There are time limits involved in adultery cases that you need to be aware of when looking to use adultery to file for divorce.

The petitioner must file the divorce petition with the court within six months of becoming aware of the adultery, otherwise, the law says they have condoned the adultery.

The second part of a fault-based divorce is that they can no longer live together, so those two elements must be met and the court gives parties 6 months to enable them to think about their actions.

The other person in these cases is called the co-respondent and this can cause difficulties with cases where the co-respondent does not admit the adultery or acknowledge service.

Also if costs are claimed against both the respondent and co-respondent, it is more unlikely that they will co-operate with the divorce.

Are there any financial implications of committing Adultery?

It’s often thought by both Petitioners and Respondents that bad behaviour, such as Adultery is considered in financial settlements.

Two of the most common questions we get asked are as follows;

  1. My husband/wife committed adultery, what are my rights?
  2. My husband/wife committed adultery what am I entitled to?

The grounds for divorce are rarely if ever taken into consideration when deciding who gets what in the divorce settlement.

Considerations around marriage length, children and earning potential amongst a host of other things are what will define how your divorce settlement looks and not the behaviour of spouses.

For peace of mind, we’ve written an article with more information on the topic of grounds for divorce affecting the financial settlement, which you should read if you need more clarification.

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Dealing with your finances in an Adultery divorce

It’s always advisable and sensible to draw a line in the sand when it comes to divorce, regardless of the grounds for divorce used to prove the breakdown of your marriage.

Some people believe that because Adultery has taken place that they are either entitled to more or less within the financial agreement, however, this is untrue.

The agreement you reach on your finances should look at other facts, such as future earning potential and fairness.

To put your financial settlement into a legally binding court order you’ll need to obtain what is known as a consent order.

This court order is legally binding and will ensure that things such as property sales, lump-sum payments and even maintenance are carried out.

If the agreement you reach isn’t documented and processed by a Judge then the court can’t help if actions aren’t carried out by one party.

Not naming the co-respondent.

If you are considering using adultery as the reason for your divorce, the courts have also directed in Practice Direction 7A of the Family Proceedings Rules 2010 that in all but exceptional cases, the co-respondent should not be named and rather, the divorce should proceed on the basis of an unnamed person.

We always advise people to file on the basis that the co-respondent should not be named and indeed will not prepare an adultery petition for clients where they wish to name the co-respondent.

Another myth is that by admitting adultery, it will somehow have an effect on any children or financial proceedings.

The courts will not take the behaviour of the parties into account unless it is relevant to the case, for example, fraud in the case of finances or the co-respondent is unsuitable to be around children.

As you can tell from reading this post, proving adultery is very difficult, which is why most couples opt to use unreasonable behaviour to base their divorce on.

Divorce-Online can advise you on whether to proceed with an adultery petition divorce or any other ground for that matter.

We’ll always advise you of all options and let you decide which route you want to take.

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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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