On 6 April 2022 divorce law across the UK changed. The introduction of no fault divorce means it is no longer necessary to provide a reason such as adultery when applying for a divorce. The only ground for divorce is the irretrievable breakdown of the marriage and you no longer need to give a reason for this.
Read more about the introduction of no fault divorce.
If you were to believe the media and popular TV culture, you’d think that adultery and divorce went hand in hand in the UK. In fact, prior to April 2022, adultery was used as the reason for the breakdown of just 10% of marriages in England and Wales.
Since the introduction of no fault divorce, however, couples no longer need to use adultery as a reason for their divorce. Even if an instance of adultery has occurred, there is no need to reference this when making a divorce application. By removing the need to assign blame to either party, no fault divorce aims to dramatically reduce conflict and encourage more amicable divorces.
What is adultery?
Adultery is committed when a married person has sexual intercourse with someone of the opposite sex, other than their husband or wife. Actions such as kissing, sexting or virtual sex did not legally count as adultery under previous laws. On a similar note, adultery could not be used as a reason for divorce if sexual intercourse occurred with someone of the same sex.
You might be surprised to learn that having sex with someone of the same sex was not considered adultery in divorce under the old laws. Someone in a same sex marriage or civil partnership was not considered to have committed adultery (in law at least) if they have sexual relations with someone of the same sex.
Of course, you may consider your partner has been unfaithful if they have a close emotional relationship with someone else that you feel is inappropriate. However, this would not have been classed as adultery under UK law.
Previously, this distinction was very important because adultery could be used as a reason for a divorce. However, since the introduction of no fault divorce, applicants do not have to provide a reason or proof of adultery in order to obtain a divorce. Instead, they must simply provide a statement of irretrievable breakdown to confirm that the relationship cannot be repaired. No evidence to prove this breakdown is required.
Is adultery grounds for divorce?
Under the old divorce laws, adultery, alongside desertion, unreasonable behaviour, and separation, were all reasons for divorce, but there was only ever one grounds for divorce – that the marriage had irretrievably broken down.
Since no fault divorce was introduced in April 2022, you can assert that this is the case with a ‘statement of irretrievable breakdown’ in your divorce application with no need to explain the reason or reasons behind this. Adultery has therefore never been a ‘ground’ for divorce, nor is it any longer used as a reason for divorce.
How does adultery affect a divorce in the UK?
From the nature of enquiries that we receive, there is a perception that if a partner has committed adultery, it will in some way effect the divorce outcome, especially in terms of the financial settlement or arrangements made for the care of children.
In reality, adultery has very little impact on a divorce case, in legal terms at least. You can no longer use adultery as a reason for a divorce or provide proof of such things. Additionally, adultery has no effect on financial settlements and, unless it affects the welfare of any children involved, won’t be considered when discussing child arrangements.
Who pays for divorce when there is adultery?
Whether or not adultery was committed will have no effect on who has to pay divorce fees or matters regarding a financial settlement.
How does adultery affect divorce in the UK?
Under previous divorce laws, only the ‘wronged’ party could use adultery as a reason for divorce. If you were the wronged party and wanted to use adultery, you would be required to prove that adultery took place, unless your spouse was willing to admit adultery.
However, adultery, along with separation, desertion, and unreasonable behaviour, no longer needs to be used as a reason for a divorce. In April 2022, divorce laws were updated to reflect a more modern view of divorce and separation.
Under new laws, adultery has no effect on the progression of a divorce. While an instance of adultery may be the cause of a relationship breaking down, disclosing this will have not have any impact on the way a divorce progresses. The only ground you need for a divorce is that the relationship has irretrievably broken down.
Adultery itself won’t have an effect on the way divorce proceedings are initiated. It will be up to the couple to decide whether they wish to make a joint divorce application. If not, one party can start a divorce application without the other party being able to contest it.
Does adultery affect a divorce settlement in the UK?
When looking to decide on a financial settlement between the parties, the court has only one interest and that is to ensure family needs are met. This includes the needs of both parties and the needs of any children in the relationship.
It’s often asked whether one party can get more out of a divorce settlement due to the poor behaviour of the other, with adultery being an obvious example. However, cases where it can be demonstrated that the behaviour of a former partner has had an effect on the family assets are unusual. In one case, the husband had dissipated the family assets and the court decided that it was inappropriate that he should be allowed to fritter away assets and then claim as much of what was left, as if he had behaved reasonably.
Obviously, where there has been financial misconduct, there is a clear arrow pointing to where the behaviour has led to financial loss, but what about where there has been non-financial conduct, like adultery?
Where non-financial conduct is being cited as a reason to have a greater share of the assets, solicitors and lawyers work on what is called the ‘gulp or gasp’ test. In brief, this means it has to be particularly serious behaviour for the court to consider departing from the usual division of assets. If the judge hears the behaviour and gasps, then it is probably not serious enough, but if the judge gulps, then that is an indicator that it is serious enough.
Cases where behaviour has been enough to cause the judge to gulp are extreme and include where the wife shot her husband with a shotgun, where the husband committed incest with children of the family, and where the wife tried to stab her husband with a knife.
As indicated, it would need to be very serious conduct before the court changes its opinion on the split of the money, and adultery is unlikely to be a serious enough reason. It is, however, essential that your solicitor has all the facts. The rule that I always work to is that I would rather know too much information than not enough.
What happens if you have committed adultery?
I am commonly approached by anxious clients who have had an affair and are incredibly worried how this will affect their divorce. I am asked, ‘Will infidelity during separation mean I can’t see my children?’ or ‘Will I not get any money from my spouse if I committed adultery and divorce?’
The reality is that the reason for the breakdown of the marriage is not taken into account in either divorce or children’s proceedings. The reason for the breakdown of the marriage is a side issue and not one to which the Court has much regard.
The fact that one person has committed adultery does not alter their need to have a property to live in and income to meet their outgoings. The Court will not penalise someone for having an affair – irrespective of the ill feeling which may exist between the spouses at the time.
Equally, the Court will not ordinarily consider that it would be wrong for a child to continue to see one of their parents because that parent has committed adultery. In fact, there is a presumption in favour of a child having regular contact with both parents so far as the Court is concerned.
How to prove adultery
It is no longer necessary to prove adultery to the satisfaction of the courts. Previously, a spouse would need to admit to infidelity or evidence would need to be provided, for example hotel bookings, witnesses and evidence of conversation.
With the introduction of the no fault divorce laws, the need to prove adultery has been removed.
Is it classed as adultery if you are separated?
There are many misconceptions about adultery and divorce. A common misconception is that you cannot commit adultery if a new relationship starts after the separation from your spouse. This is incorrect – infidelity during separation is still adultery. If you have a sexual relationship with a member of the opposite sex while you are still married then, in the eyes of the law, it is adultery.
Despite this, when it comes to divorce law, adultery will have no effect on the proceedings as you no longer need to give a reason, such as adultery, to legally end your marriage.
Is adultery a crime in the UK?
Adultery is not a crime in the UK and has not been one since the Matrimonial Causes Act in 1857.
Should you divorce on the grounds of adultery?
The only ground for divorce in England and Wales is the irretrievable breakdown of the relationship, which can be established through a formal statement during your divorce application. You do not need to give a reason, such as adultery, to support this.
This change to divorce law has been made to reduce conflict and help to resolve divorces more amicably. If you want to know more about the new divorce laws or have questions regarding your personal circumstances, our team at Woolley & Co can help.
Does adultery or having an affair affect child custody?
While people often talk about “child custody”, there is no such thing under English law and the term can give a false impression of how arrangements for children are dealt with during divorce and separation.
Having an affair or committing adultery is unlikely to have any impact on child arrangements. These are normally negotiated privately between parents and, even if you did need to take the matter to court, the court will only look at what is in the child’s best interests when making its decision.
The only way adultery or an affair would be taken into account in child arrangements is if it would negatively affect the child’s welfare. For example, if the child was exposed to inappropriate situations because of the affair or adultery, this could have an impact.
My husband or wife cheated, what are my rights?
Many people mistakenly believe that if their spouse cheats or commits adultery, they are entitled to more in the divorce settlement, but that is not how it works. It is incredibly rare to see a case in which adultery was considered when dividing finances and other assets.
When dividing finances, various other matters are taken into account. These include but are not limited to:
- The length of the marriage
- Whether there are any children
- The needs of each spouse
- Each spouse’s income
- Each spouse’s savings
If you are unsure what you are likely to be entitled to receive in a divorce settlement, our expert divorce solicitors will be able to carefully assess your circumstances and what the likely outcome will be.
Should I admit to adultery in a divorce?
There is no longer any need for an individual to admit to adultery during a divorce. It is not needed to secure the divorce and is very rarely considered during financial settlements.
Whilst divorce is a relatively straight-forward process as a result of the new divorce law if you are at all confused or concerned about the financial aspects of your divorce or the care of your children talk to an experienced divorce solicitor.
Ian Giddings
Divorce solicitor Coventry
