What is adultery? May seem like a very obvious question. Anyone who has ever experienced a partner’s infidelity will have a very strong idea about what adultery is, but unfortunately the law in England and Wales has a very narrow definition of adultery.
Adultery is sexual intercourse between a consenting man and woman when at least one partner is married to someone else.
There are lots of situations when it may seem like a case of adultery, but it won’t be legally recognised as a grounds for divorce. If this is the case, and you would like to petition for a divorce, then talk to a family lawyer to see whether or not you can use ‘unreasonable behaviour’ as a grounds for divorce.
Due to the very narrow definition of adultery divorces because of adultery are a lot less common then you would otherwise expect. There are many different ways in which people misunderstand the legal definition for adultery. When you are petitioning for a divorce it is very important to have all the facts so your process is as short as possible.
The first point to note is that adultery can only be used as a ground for divorce if the proceedings start within 6 months of the adultery coming to light. This means that the spouse has a very short amount of time to decide whether or not they can forgive their partner. Often couples try to move on, but find that they can’t and by that point it is too late to use adultery.
Rape, including sex with someone under 16 is not adultery. If this has happened then the proceedings must go ahead with ‘unreasonable behaviour’ as the reason for the divorce. This covers illegal behaviour such as this.
Same-sex intercourse is not counted as adultery. This means homosexual couples can not use adultery as a reason for divorce if one spouse has a same-sex extra marital affair. It also means that adultery is not a reason for divorce if one member of a heterosexual couple has an affair with a member of the same sex. Again, talk to a divorce lawyer to find out whether your individual circumstances can be covered by ‘unreasonable behaviour.’
Adultery must involve sexual intercourse. Any other form of sexual activity is not considered adultery in the eyes of the law, even though it is to most people. There are many examples of one spouse discovering that their other half has been using online dating sites, or online meet-up sites, but unless sexual intercourse has taken place then no adultery has been committed, even if the intention is there.
The other person does not have to have anything to do with the divorce proceedings. It is enough for the judge to know that adultery has taken place. Judges frown on attempts to name and publicly shame the other person. The only time when the other person may be considered during the case is if the couple are already living together. In that case the finances and suitability for any children will be considered.
The final point that is worth noting when starting a divorce based on adultery is that the law does not judge the adulterer. The law understands that adultery may be the symptom of a bad marriage, rather than the cause. An adulterer does not have to fear that they will be unfairly treated because they have committed the act.
In all divorce cases it is important that you seek legal help, as not everything in the law is as it seems and it takes the work and knowledge of an experienced family lawyer to ensure you do not come up against difficulties.