26th September 2014
In order to obtain a divorce in England and Wales, you need to show that your marriage has irretrievably broken down. This can be proved by one of five specific facts. One of these five facts is adultery.
Adultery can be a confusing term and there are many misconceptions. For the Court to grant a divorce based upon adultery, there are two elements.
- Firstly the adulterous act must have taken place, and
- Secondly the spouse alleging the adultery must state that he or she finds it intolerable to live with the other spouse.
Adultery is defined as sexual intercourse between a consenting man and woman, one or both of whom are already married to other people. Proving adultery can therefore be difficult and often you would be relying upon your spouse to provide an admission of the adultery in order to proceed. Adultery can be established even if the married couple are separated. Finding it intolerable to live with your spouse also does not have to be linked to the adultery and could be based upon other behaviour that has accrued over time. There is however a time limit to be aware of as once you discover the adultery, the divorce petition must be issued within 6 months, otherwise it cannot be used and you would be seen to have ‘condoned’ it.
Adultery is not however an available option to same sex spouses, or to couples seeking to dissolve their civil partnership, unless of course one of the spouses has entered into a sexual relationship with a member of the opposite sex.
There is no legal requirement to name the other woman or other man in the divorce petition. As tempting as it may be, doing so can complicate matters unnecessarily and increase your legal costs. There is also no longer a stigma attached to adultery and the Court is highly unlikely to take this into account when dealing with associated financial issues.
In the event that adultery cannot be proven, the other option would be to consider a divorce based upon your spouse’s ‘unreasonable behaviour’ as an alternative. At Cartwright King we have a team of specialist divorce solicitors who can advise you as to your options and the best and most cost effective way to proceed. Contact us for further information or advice on 0845 894 1622 or email email@example.com