Definition of Adultery in Divorce
Adultery is defined as your spouse having had sexual intercourse with a member of the opposite sex and that the other spouse cannot continue to live with them.
Adultery as a reason for divorce, alongside unreasonable behaviour is one of the most widely used reasons for divorce in England and Wales.
Civil partners and same-sex spouses are unable to use adultery as a reason for the divorce as sexual intercourse is not possible between partners of the same sex.
What is not considered to be adultery.
The ground of adultery does not include kissing, heavy petting, webcam or virtual sex. It can only be actual sexual intercourse.
Civil partners and same-sex marriages cannot be dissolved using adultery as the reason for divorce.
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?
Adultery based divorce cases 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 is completed correctly, the judge has no choice but to grant the divorce.
If your spouse is not prepared to admit to actual sexual intercourse having taken place, you can use the fact they are having an inappropriate relationship with a member of the opposite sex that does not go so far as to say sexual intercourse has taken place.
You are then able to file on the grounds of unreasonable behaviour.
If they do not answer the petition or admit to the allegations, you can still proceed as unreasonable behaviour does not require proof of a physical act, unlike adultery.
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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.
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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.