To obtain a divorce in England and Wales you must demonstrate that the marriage has irretrievably broken down. To establish irretrievable breakdown you must prove one of five facts, one of which is adultery.
What is adultery?
Adultery is defined as:
“voluntary sexual intercourse between a man and woman when at least one of them is married to someone else.”
No other kind of sexual activity constitutes adultery in this context.
Is it adultery if the infidelity is with someone of the same sex?
As the law defines adultery as something that can only take place between a man and a woman, any sexual relations with a member of the same sex does not amount to adultery.
Is it adultery if you have already separated?
In short, yes. You must still prove that you find it intolerable to live with your spouse. Sexual intercourse with a member of the opposite sex, irrespective of whether or not it takes place post separation, is technically adultery until the divorce is finalised by way of decree absolute.
Will adultery count against me during the divorce?
No. While many people believe that the unfaithful spouse will be treated more harshly in Court, this is simply not the case. Judges understand that marital breakdown is rarely the fault of just one party so they do not treat people more or less harshly if they have committed adultery. It will have no impact on how matrimonial finances are divided between the parties. Nor will it have an impact on decisions regarding your children.
How long do I have to seek a divorce after I find out about the adultery?
Six months; If you live with your spouse as a couple for that long (or periods which together amounts to more than that) after you find out about the adultery then you cannot rely on it in order to seek a divorce.
Should I name the third-party?
The desire to wreak revenge on an unfaithful spouse is entirely natural but naming the person they cheated on you with is an urge worth resisting. Whilst it may seem tempting to name and shame the third party, them being involved adds unnecessary complication, expense and difficulty and should be avoided.
How Nelsons can help
If you need advice in relation to any aspects of divorce proceedings, please contact a member of our Family Law team in Derby, Leicester, or Nottingham on 0800 024 1976 or via our online form.
The team will be happy to discuss your circumstances in more detail and provide you with more information about the services that we can provide along with details of our hourly rates and fixed fee services.
Contact us