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Grounds for Divorce - Part One, 'Adultery'

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Adultery and unreasonable behaviour. Between the two, they account for the vast majority of so-called  ‘grounds for divorce’. But these terms have strict legal definitions which do not always match our everyday definitions.

In my next blog, I’ll be looking at the case of unreasonable behaviour. But, for now, let’s begin with the surprisingly complex issue of adultery.

In the legal world, adultery is one of five grounds for divorce as set out in section 1 (2) (a) Matrimonial Causes Act 1973, which says ‘the respondent has committed adultery and the petitioner finds it intolerable to live with them’.

So, what exactly has a person done when they commit adultery? Without wishing to get too embroiled in the finer details, the law defines adultery as ‘voluntary sexual relations between an individual who is married and someone who is not the individual’s spouse’. While this remains a legitimate reason to pursue a divorce, and is still considered a ‘moral wrong’, it is no longer punishable as a crime.

Things are slightly more complicated for same sex marriages, same sex civil partnerships and those who choose to have extra-marital relations with someone of the same sex. According to the law, a spouse cannot commit adultery if the second person is of the same sex. In this respect, the law is yet to catch up with our modern world.

One other important consideration is timing. The court will consider the impact that the adulterous act had on the relationship. If the married couple remained in the same house or otherwise co-habited for six months after adultery was discovered, adultery would not be considered grounds for divorce. In short, there may be a case at five and a half months but not six months and one week.

The ‘adulterous act’, for want of better words, must have taken place.  So, secretly meeting someone of the opposite sex behind your spouse’s back, holding hands or kissing, is not adultery. Equally, so-called ‘sexting’ or activities over digital channels fall short of the legal requirement.

Much as been written about the influence of the internet and social media which supposedly makes it easier for married people to hook up and flirt with others. Some go further look for people to have affairs with.  However, providing there is no evidence of an adulterous act taking place, behaving in this way, whilst unacceptable to most within a marriage, is not adultery and does not constitute proof that it either has or would take place.

There has got to be physical relationship to the fullest extent. Adultery does not cover all sexual activity and no other forms of sexual activity will suffice. To put it another way, a certain former president of the United States, did not commit adultery with his now infamous intern, though he may have had ‘sexual relations’.

The grounds for adultery are still met even if the adultery occurs after separation.  I have represented many clients who left a relationship because of the behaviour of their spouse and, sometime later, having met somebody else, been faced with divorce proceedings as a result of their adultery from this relationship. The fact is although a couple may be separated, in the eyes of the law, they are still married.

Similar quirks exist if one party engages in sexual activity with someone that is not their partner ahead of their wedding. Even if the details of this emerge after the couple are married, this does not count as adultery. The engaged couple aren’t actually married when the act takes place and neither party is any more or less protected than any other couple.

Citing adultery does not mean the other person has to be named.  Some clients can be very clear that they wish to do this and others prefer not. Whilst there is encouragement not to name for a number of reasons it is at the end of the day a very personal choice.

An admission of adultery makes things more straightforward but this isn’t essential to the process if the other party has proof. In my experience, without an admission, the case can often become more complicated and costly. One party might feel that all the signs are there, they may have a real suspicion of an affair but if there is only circumstantial evidence, and a response of “prove it” then it may be advisable to look other grounds for divorce.

One of the most common is ‘unreasonable behaviour’, which I will discuss next time.