Current legislation provides only one ground for divorce in England and Wales: that the marriage has broken down irretrievably. The Petitioner (the person applying for the divorce) must rely on one of five facts to prove the irretrievable breakdown of the marriage, one of which is their spouse’s adultery.

Adultery has a very specific meaning in UK divorce law: your spouse having had sexual intercourse with a member of the opposite sex. This means that same-sex couples wishing to either divorce or dissolve a civil partnership cannot rely upon adultery to support the irretrievable breakdown of the marriage or civil partnership. It also means that emotional infidelity, or sexual contact that does not include sexual intercourse, does not meet the legal definition of adultery.

A Petitioner wishing to rely upon adultery in their divorce proceedings must file their divorce petition within six months of becoming aware of the adultery, otherwise they will need to rely on another of the five facts (which include unreasonable behaviour and length of separation). Their spouse would need to admit the adultery in the divorce documentation or, if they refuse to do so, the adultery would need to be proven. In the majority of cases this would be difficult, or impossible. A Petitioner cannot bring divorce proceedings based on their own adultery; in these circumstances their spouse would need to become the Petitioner and file the divorce petition citing adultery.

However, divorce legislation is set to change next year, within which the five facts will be replaced with a statement of irretrievable breakdown. Once the Divorce, Dissolution and Separation Act 2020 comes in force – originally due in Autumn 2021 but now anticipated in April 2022 – reliance upon adultery will be moot, although details of infidelity may still form part of the statement of irretrievable breakdown.

Often those who are considering divorce, dissolution or separation are under the misapprehension that adultery or infidelity – their own or their partner’s – will be taken into account in the divisional of matrimonial assets such as property and pensions, or when determining residence and child contact arrangements. The party whose behaviour is to blame for the end of the marriage or relationship, the reasoning goes, should shoulder a penalty by way of a reduced proportion of the matrimonial pot, reduced contact with children, or higher ongoing payments in the form of child or spousal maintenance. This is not the case. It is rare that any kind of personal misconduct within the relationship will have bearing on how assets are divided.

For further information and advice on this issue, and other family law issues, please contact us for a free initial consultation on 01992 306 616 or 0207 956 2740 or email us.