What is adultery, how does it affect divorce, and what are my rights?

The topics of adultery and divorce are still invariably linked today, even after the no-fault divorce law came into effect in 2022. Before that, adultery was a reason that people could cite for divorce. But not anymore.

If you’re wondering how adultery is viewed in modern divorce cases and what it actually means for couples today, we’re here to give you a clear, practical understanding.

What is adultery?

In law, adultery is defined as voluntary sexual intercourse between a married person and a person who is not their spouse. Interestingly, the legal definition of adultery does not apply to same-sex couples.

Does divorce on grounds of adultery still exist?

When it comes to divorce as a result of adultery, in the UK,  the only ground for divorce is that the marriage has irretrievably broken down. The reason for the marriage breaking down is no longer relevant. 

One common misconception around adultery is that the adulterer must ‘pay’ for the divorce, when this is not the case.  While adultery may be the reason for the marriage breaking down, there is no requirement for the adulterer to fund the costs of the divorce.

Is having an affair illegal?

Adultery as an act is not illegal and has not been considered a crime for a very long time; not since the Commonwealth (Adultery) Act 1650 was repealed in 1660.

How does adultery affect divorce in the UK?

Despite adultery not having a legal presence in divorce cases anymore, it can have a real impact on the mental health of the parties involved. Adultery, like other forms of cheating, leads to feelings of betrayal and disrespect which can hugely impact the way the parties feel about one another and lead to acrimonious negotiations.

In most divorce cases, the reasons for the divorce very rarely have an impact on the financial settlement. It is only when the actions of a spouse cause a significant disruption to the life of their partner that they are considered, such as one party attempting to take the life of the other.

Does adultery affect a divorce settlement?

In most cases, adultery does not directly affect the financial outcome of a divorce in England and Wales. Attempting to seek financial reimbursement on the basis of one party’s conduct is incredibly difficult and exceedingly rare. In circumstances where the adulterous spouse has caused financial loss to their spouse with the intent to defeat their spouse’s claim to those assets, there may be grounds to consider a conduct argument. However, these cases are incredibly rare, so it is best to seek legal advice as to your prospects of successfully making that argument.

In general, courts are not concerned with who caused the marriage to end when deciding how matrimonial finances should be dividedInstead, financial settlements are based on principles of fairness and  needs, with the court focusing on practical factors such as:

• Each party’s income, earning capacity, and housing/income needs
• The length of the marriage and the parties’ standard of living
• Financial and non-financial contributions made by both parties can sometimes be considered
• But the court’s paramount concern will be the welfare of any children

However, adultery in divorce can have an indirect impact in certain situations, including:

• Financial misconduct: If marital funds were spent on an affair (for example, gifts, holidays, or supporting another household), arguments can be made to have these factored into the settlement figures
• Increased acrimony: Adultery can make negotiations more difficult, sometimes leading to longer and more expensive proceedings
• Breakdown of trust: This may affect how willing parties are to reach agreements voluntarily without the assistance of the courts

Our family law solicitors can help you understand whether adultery has any relevance in your specific circumstances and ensure your financial position is protected.

What are my rights if my husband or wife commits adultery?

If your husband or wife commits adultery, it’s completely natural to feel hurt, angry or unsure about what this means for you legally. In England and Wales, however, adultery does not create any specific legal “rights” on its own.

That said, you do still have clear rights and protections within the divorce process, including:

• The right to a divorce: While adultery is no longer used as the basis for a divorce, you can still apply for divorce if your marriage has broken down
• The right to a fair financial settlement: Finances are decided based on needs, contributions, and future circumstances, not assigning blame or punishing either party
• The right to child arrangements based on welfare: Decisions about children focus solely on their best interests,  not the reason for the divorce, provided the proposed arrangements are safe and appropriate for the children.

Is my husband or wife entitled to half if they cheated?

Cheating doesn’t change the starting point of the court when considering the division of marital assets. In England and Wales, a spouse is not entitled to “half” just because they didn’t cheat, and equally, a partner doesn’t lose their entitlement to marital assets because they did. Divorce law isn’t about blame.

Here’s how it works:

• Adultery does not affect financial entitlement on its own
• In a longer marriage, the court starts with an equal division of assets, but can move away from that in certain circumstances
• Financial settlements are based on needs, income, earning capacity, contributions, and future security, not the cause of the marriage ending
• Children’s needs come first, which can significantly influence how your assets are divided
• Only in rare cases, such as serious financial misconduct (e.g. spending large sums of marital money on an affair with the intent to defeat their spouse’s claim against those assets), will conduct be considered

So, while infidelity may feel deeply unfair on a personal level, the law focuses on achieving a practical and fair outcome and not punishing an adulterous spouse.

Is cheating the same as adultery?

It is a common misconception that cheating and adultery are the same thing. But in reality, they are defined differently. What constitutes cheating can vary from person to person. For example, flirting with another person might affect some people more than others, and may eventually lead to a relationship breaking down. However, it does not satisfy the definition of adultery.

The main difference between adultery and cheating is that adultery requires sexual intercourse and only applies to heterosexual relationships. In either case, it very rarely impacts financial settlements in divorce.

Read more: What happens when you get caught cheating

How does adultery affect child arrangements?

Adultery has almost no impact on child arrangements in England and Wales.

When a court decides where a child will live and how their time is spent, the main priority is the child’s welfare.

So, that means:

• Adultery alone has no impact on child arrangements or contact decisions
• The court looks at  how to ensure the arrangements meet the child’s emotional, physical, and educational needs, as well as considering any welfare concerns
• Factors such as stability, routine, and each parent’s ability to co-parent are far more important
• A parent will not be restricted from having a relationship with their child because they had an affair

Adultery may become relevant indirectly if it affects the child’s wellbeing, for example:

• If a parent introduces new partners to the child too quickly or inappropriately
• If the child is exposed to conflict, instability, or unsafe situations
• If a parent lets relationship issues interfere with their parenting responsibilities

It is important to remember that the court separates issues in adult relationship from child arrangement decisions. The most important point is how each parent cares for the child both in the present and in the future, and not what caused the marriage to break down.

Professional divorce solicitors to support you with adultery and divorce

Adultery and divorce can be complex, and the law doesn’t always keep things straightforward. That’s why having an experienced legal team on your side is so important. At Grant Stephens Family Law, our specialist divorce lawyers have the knowledge and expertise to guide you through every aspect of divorce, including sensitive issues like adultery, asset division, child arrangements, and spousal support.

We focus on protecting your interests while helping you navigate the divorce process, providing clear advice and practical solutions every step of the way.

Take control of your situation today. Contact us for a free 30-minute consultation and get trusted legal guidance on divorce tailored to your specific circumstances from our family lawyers.

FAQs about adultery and divorce