Adultery and Divorce

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11 October, 2017

The recent BBC drama Doctor Foster shone a light on the ugly side of divorce.  Having exposed her husband's betrayals in the finale of series 1, this series showed how the spouses' destructive behaviour towards each other drove their 15 year old son to desperate measures.

Below are 5 common myths about adultery:

  1. Adultery is any sexual activity

Adultery is committed when a consenting man or woman has sexual intercourse with another consenting adult, one of whom are married to another person.  If you are in a same sex marriage you cannot rely on adultery.  Lesser forms of sexual activity do not constitute adultery.  If you wish to petition for divorce relying upon adultery then, unless your spouse is prepared to admit the adultery, you will need to prove it.  If your spouse is not willing to admit to the adultery, then it is usually better to petition for divorce relying on the fact of your spouse's "unreasonable behaviour".

  1. The other man or woman should be named on the divorce petition

There is no legal requirement to name the other person as a co-respondent to the divorce proceedings.  Whilst you may wish to do this, it usually only serves to make the divorce proceedings more complicated and expensive.

  1. I will be entitled to a larger financial settlement as my spouse has committed adultery

This is not the case.  Adultery is not conduct which the court would take into account when determining a financial settlement.  The courts are there to try and reach as fair a settlement as possible.  Bad behaviour or conduct will only be taken into account by the court in very exceptional circumstances when deciding how assets should be shared after divorce, for example violence or serious financial misconduct.

  1. I am not committing adultery as we have already separated

If you are still married then adultery can be committed if you have sexual intercourse with another person, despite the fact that you are separated from your spouse.

  1. I want to divorce my spouse as they committed adultery in the past

If you have continued to live with your spouse for at least 6 months after finding out about the adultery, then you will not be able to rely on the adultery fact.  In these circumstances, it would be better to proceed on an unreasonable behaviour divorce petition.

At Forbes we have specialist teams who are able to assist with any family law queries. For further information please contact our Family team via email or phone 0800 689 1058.  Alternatively send any question through to Forbes Solicitors via our online Contact Form.

Learn more about our Family/Divorce department here

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