Family Law expert, Gemma Purt examines the implications of using adultery as a fact for divorce and if adultery can affect the outcome of a financial settlement on divorce.
If a spouse discovers that their spouse has committed adultery this can be devastating not only to the unsuspecting spouse but also to the continuation of the marriage. Spouses who feel they have been wronged in this way often want to name the third party in the divorce proceedings and believe they should be entitled to more financially as a result of their spouse’s adulterous behaviour.
The law and adultery
So what is the law’s position on adultery in marriage breakdowns and what impact does it have on financial settlement?
There is only one ground for divorce which is the irretrievable breakdown of the marriage. There are then a series of facts which include adultery. You need to base your divorce on one of these facts.
It is important to remember that whatever fact you are divorcing under you can only petition for divorce once you have been married for over 12 months. If you have been married for less than 12 months you will need to wait before divorce proceedings can be commenced.
We all have our own personal views as to what constitutes adulterous behaviour but the definition of adultery for the purposes of the current English divorce laws is a married man or a married woman having sexual intercourse with a person of the opposite sex.
So this means that sexual intercourse has to have taken place and it has to be with a person of the opposite sex.
Any other behaviour of a sexual type does not count as adultery. If sexual intercourse has taken place with a person of the same sex then this does not count as adultery either. This does not mean however that you cannot divorce, but you will need to base your divorce on another fact such as citing unreasonable behaviour in those circumstances.
If you are in a civil partnership with a person of the same sex then you cannot cite adultery as a fact even if they admit to having sexual intercourse with a person of the opposite sex.
Clients often ask if you can cite your own adultery as a basis to petition for divorce. You cannot petition on the basis of your own adultery. In that situation you would have to either petition on the basis of your spouse’s unreasonable behaviour, if this was relevant or they would have to petition against you citing your adultery which you would need to admit within the divorce proceedings.
If you are the petitioner within the divorce proceedings (i.e. the spouse that is starting the divorce proceedings) and you are proceeding using the fact of adultery then the respondent within the divorce proceedings (your spouse) needs to admit the adultery.
Once the divorce petition has been issued the respondent has to complete and return the acknowledgement form to the Court. They will need to indicate in the relevant box if they admit the adultery. If they refuse to admit the adultery on the relevant part of the petition then they may also defend the divorce which will mean that the Court will list a hearing or it may mean that you need to redraft your petition using a different fact, usually unreasonable behaviour.
Using adultery as a fact for divorce
If you are going to proceed under the fact of adultery you should therefore ensure that your spouse is going to admit the adultery in the divorce before you issue proceedings otherwise proceedings could become lengthy and costly. If your spouse will not admit the adultery you may want to think about proceeding using a different fact.
Unless it has been admitted it can often be very difficult to prove that sexual intercourse has actually taken place and as stated if there has been any other forms of intimacy this will not be seen as adultery. If both parties are in agreement that they want to divorce then ideally you want this to be dealt with in a non-contentious and non-defended way and so there may need to be discussions prior to the issue of the petition with your spouse as to who will be the petitioner and on what fact they will base the divorce.
You should be aware that if you have known about the adultery and continued to live with that person as a couple, perhaps in an attempt to see if you can get the relationship back on track for more than 6 months then you cannot rely on that incident of adultery in an adultery petition. Again this does not mean that you could not use a different fact to proceed with divorce.
If you cannot use adultery as your fact for the basis of your divorce then you can still divorce using the fact of unreasonable behaviour. Unreasonable behaviour has a much broader definition, the definition being, behaviour that has been committed by your spouse and which you have found unreasonable and as such you find it intolerable to live with them. Under that fact you can cite any extra marital relations if relevant including any which have not met the adultery definition or any episodes of sexual intercourse that your spouse will not agree to admit in an adultery petition.
You should also be aware that if you are separated from your spouse and you then start a new sexual relationship with someone from the opposite sex then technically this is adultery as you are still married.
Naming any third party
It is important to remember that other than you, your spouse, the Judge and any solicitors that either of you instruct no-one else will know on what fact your divorce is based.
Solicitors will discourage you from naming any third party within an adultery petition. It usually creates unnecessary conflict and the majority of family solicitors will be members of Resolution and will work towards resolving family disputes as amicably as possible.
If a third party is named they will become a party to the proceedings, a co-respondent and be served with copies of the documents relating to the divorce. They will have a chance to respond to the allegations and can instruct a solicitor to represent them within the proceedings if they want to.
During the divorce process couples will need to resolve their financial matters. Generally the fact on which you divorce will have no bearing on your financial settlement. If you are divorcing on the fact of adultery then it is highly unlikely that you will be entitled to receive any more by way of financial settlement as a consequence of that adultery.
The types of behaviour that might affect your entitlement with regards to financial settlement are fairly limited.
However, the fact on which your divorce is based may have a bearing on who has to pay the costs of the divorce. You should note this relates to the costs of the divorce only, not any costs in relation to children matters or financial matters. If you are petitioning on the fact of adultery or unreasonable behaviour as they are 'fault based' divorces i.e. we are blaming the other spouse then you can ask the Court to make an order that the respondent is responsible for your costs of the divorce.This will be limited to either the court fee if you have issued the divorce proceedings yourself or the court fee and your solicitor’s reasonable costs if you have instructed a solicitor to issue the proceedings on your behalf.
Expert advice and guidance
Divorce is often an emotive time for clients and it is important they have legal advice from specialist family solicitors who can support and guide clients through this period in their lives.
All our family solicitors are specialists in this area and all belong to Resolution which means they are committed to resolving family disputes in a non-confrontational manner.
As family law professionals and members of Resolution, our Family Law team are delighted that following a 30 year old campaign to end the ‘blame game’ in divorce proceedings, The Divorce, Dissolution and Separation Bill has finally reached the end of its legislative journey. We anticipate the new reforms for ‘no fault divorce’ will be implemented in Autumn 2021 which will allow couples to petition for divorce jointly enabling them to deal with matters as amicably and constructively as possible.