What is adultery?

Adultery is defined as voluntary sexual intercourse between two people of the opposite sex. This means same-sex couples are unable to allege adultery as a reason for divorce of dissolution of their marriage or civil partnership.

Who can use adultery as a reason for divorce?

Adultery can only be used as a reason for divorce by the “innocent party”. This can sometimes cause problems when it is the person who committed the adultery who wishes to divorce and the innocent party wants to try and make the marriage work. The only choice the adulterer has is to use “unreasonable behaviour” as the grounds.

Why use adultery as a reason for divorce?

Adultery, together with “Unreasonable behaviour” are the only two reasons which are considered to be more “instant”, as all the other reasons require at least a two year waiting period before the divorce application can be made.

There can also sometimes be psychological gains rather than legal ones. Particularly when the petition is applied for soon after discovering the adultery. The “guilty” party may have feelings of guilt or perhaps they wish to start a life with the new partner as quickly as possible. In some instances this guilt or desire to move on quickly may lead to more favourable terms being agreed on the financial side of the divorce for the “innocent” party. However we must stress here, the law shows no favour whatsoever to either party, each has the same rights no matter what the reasons for divorce. So this can only have an effect if terms are agreed between you rather than asking the court to dictate them.

What proof is required to petition using the reason of adultery?

Divorce and adultery law can be hard to navigate. To be able to Petition relying on adultery you have to be able to prove that:

1. Adultery has taken place

• If your only evidence is that your spouse/partner has told you adultery occurred you may have difficulties proving it.
• Matters are more simple where one or other party has had a child outside of the marriage/partnership as they are then faced with denying parentage of their own child or admitting that adultery occurred.

1. You find it intolerable to live with the person who committed it

• You can prove this by saying you find it intolerable to live with the other person or by not living with the other person

Should a co-respondent be named in a divorce petition?

It is possible to name the person your spouse was having an affair with in the divorce petition, but we would generally advise it's not a good idea. It’s completely understandable that people are incredibly angry when they discover their spouse has been unfaithful and want to name and shame all involved. However, it can lead to serious delays in the proceedings as the Co-respondent also has to be served with the petition and return it to the court. Considering they are generally not very happy about being named, there is no incentive for them to co-operate in a timely manner. It generally causes more time delays and certainly more heartache. Plus, in the end it makes absolutely no difference to whether the divorce petition is given, or to the arrangements for the children, or how the financial side of the marriage is resolved.

What is the time frame for using adultery?

If you continue living with your spouse, you must petition for divorce within six months of finding out about the adultery. After six months you are seen as “condoning” it and may then have to cite “unreasonable behaviour” as the reason for the divorce.