To divorce on the basis of adultery, a spouse must establish that the other person has committed adultery and that they find it intolerable to live with them. It is not possible to issue divorce proceedings on the basis of your own adultery.
How is adultery defined in the law?
Adultery is defined as the voluntary act of sexual intercourse between a man and a woman who are not married to one another but one of whom, at least, is a married person.
Despite the introduction of same sex marriage, this definition has not changed. If you are in a same sex marriage and your spouse has engaged in a sexual act with another person of the same sex you cannot claim adultery as a reason for divorce. Your remedy is to use this as an example of their unreasonable behaviour and petition for divorce on the grounds of unreasonable behaviour.
Do you have to prove the adultery has taken place?
Due to the nature of adultery, it is unlikely that it will have been witnessed. If your spouse is willing to admit to the adultery by signing a confession statement or conceding it on the acknowledgment of service form which the court send to him/her, that is likely to be sufficient for an adultery petition to proceed.
If your spouse does not admit to the adultery, the court can assume adultery based on certain types of evidence, but bear in mind the legal definition. Evidence of romantic exchanges via email or text may fall short of proving the act of adultery.
If adultery remains disputed, there will be a hearing with the judge taking evidence from both of you to determine the issue.
Is there a time limit to claiming adultery as a reason for divorce?
The court will give spouses six months from the last instance of adultery to attempt a reconciliation. If they live together as man and wife for more than six months after becoming aware of the last incident then that incident of adultery cannot be used as a basis for an adultery petition.
What can be done about betrayal which doesn’t fit the definition of adultery?
If you have evidence that your husband or wife is engaged in an inappropriate relationship with another which is distressing to you but may fall short of adultery, it is possible to use this as an example of their unreasonable behaviour if you believe the marriage has irretrievably broken down. However, other instances of unreasonable behaviour would also be required to proceed with the divorce.
For more information on using adultery as a reason for divorce or any other family matters, please contact Anita Scorah in our Family Law team on 01625 442123.