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Adultery is one of five reasons that can be cited in order to prove that a marriage has irretrievably broken down and obtain a divorce. Sadly, the legal definition of adultery is much maligned, with critics consistently arguing that it is outdated. Considering the sheer confusion and frustration this definition causes so many of the people that contact Quickie Divorce, we’re inclined to agree!

Here are five surprising facts about adultery in England and Wales:

1.    It must involve two parties of the opposite sex

Of all the potential examples we could cite to exemplify that the legal definition of adultery is outdated, one stands head and shoulders above the rest: adultery has only taken place if the incident involves a man and a woman.

In other words, if one party of the marriage has a sexual relationship with a member of the same sex, this is not classed as an act of adultery. We’ve fielded enquiries from many people that wanted to file for a divorce for this reason. They were under the impression that they would have been able to rely upon adultery and were, quite reasonably in our opinion, shocked to find out that this was not the case. 

2.    You must have separated within six months

As we’ve said previously, all applications for divorce rely upon the fact that a marriage has broken down irretrievably with one of five grounds cited as the reason for the breakdown. As a result, it is not sufficient for one spouse to have committed adultery alone, but also for the parties to have separated within six months of the adultery having been discovered also. 

In the event that one party discovers that their spouse has committed an act of adultery and they do not separate within six months, the court will presume that they condoned their spouse’s actions and that the adultery cannot therefore be the cause of an irretrievable breakdown.

It is important to clarify, however, that it is not when the adultery took place, but when the spouse discovered the adultery that is pertinent. If, for example, the offending spouse engaged in an extra-marital affair in April 2007, but their spouse did not discover this until September 2017 then, provided the couple began living separate lives before March 2018, then adultery can be cited as the reason their marriage has irretrievably broken down.

3.    Sexual acts alone do not constitute adultery

Many people assume that any kind of physical relationship will be viewed as adultery but – whilst this may be true in a colloquial sense – sexual intercourse must have taken place or the party’s actions do not constitute adultery. 

In addition, it is worth noting that whilst more and more people are using the internet in order to seek out the opportunity to commit adultery (there are now a large number of websites for married individuals seeking extra-marital affairs) and many people assume that such an act is sufficient to prove adultery, this is not the case.

4.    You shouldn’t name a co-respondent

Often, when a spouse knows who their husband/wife committed adultery with, they want to name this person in their divorce petition. This desire to name and shame the third party is understandable, of course, but it is not recommended. 

By naming this party, they effectively become a second respondent meaning that they will be required to complete and return paperwork to the court and effectively ‘confess’ to the adultery. If they do not do this, the process of obtaining the divorce can become drawn out and expensive or, worse yet, it may prevent the divorce from going through entirely.

So, tempting though it may be, we would strongly recommend that anyone citing adultery when filing for a divorce refrain from naming a co-respondent.

5.    You can’t rely on adultery that took place post-separation

Should one spouse begin a new relationship after they’ve begun living separate lives this is still legally classed as adultery. Whilst this leads many people to believe that they can rely upon this within their divorce petition, this is not the case.

As we’ve stated previously, the grounds cited are used to prove that the marriage has broken down and the parties are incapable of reconciliation. As a result, the reason cited – whether it be adultery, unreasonable behaviour etc. – must be the reason that the couple separated and post-separation adultery cannot be relied upon as a result.

So, as you can see, filing for a divorce on the grounds of adultery can be complicated and you’ll need to ensure that a set of criteria have been met in order to ensure that your application is successful. Fortunately, in the event that adultery cannot be relied upon, the vast majority of people seeking a divorce on this ground find that they can successfully rely upon their spouse’s unreasonable behaviour instead.

If you have questions about filing for a divorce on the grounds of adultery, unreasonable behaviour or anything else, get in touch with Quickie Divorce’s advisers for a no-obligation discussion and quote today.