How to divorce on grounds of Adultery
Divorce for adultery is one of five facts (or reasons) used to get a divorce in England and Wales. An adulterous act must have taken place to divorce on grounds of adultery. As a consequence you must also find it intolerable to remain in the marriage with your spouse. In legal terms, the marriage has ‘irretrievably broken down’.
Even though adultery is defined precisely by law, it is often mistakenly thought to have a wider application than it has.
What is the definition of adultery when used as grounds for divorce?
In legal terms, adultery refers explicitly to a married man or woman having sexual intercourse with someone of the opposite sex. This means that many behaviours often thought of as adultery are not in the eyes of the law.
Legally, adultery covers only sexual intercourse. This means behaviours such as kissing, masturbation, fellatio, sexting, and virtual sex are not valid reasons to divorce on grounds of adultery.
Divorce on grounds of adultery can only be used if actual sexual intercourse has taken place between your spouse and a person of the opposite sex.
Under current law, if you are in a civil partnership, you cannot rely on adultery as grounds for divorce. Even if your partner committed adultery with a member of the opposite sex.
How can I divorce on grounds of adultery?
To divorce on grounds of adultery, the following criteria must be met:
- You file for divorce within six months of finding out about the adultery.
- It must detail the adultery of your partner and not on your actions.
- Your spouse has had sexual intercourse with someone of the opposite sex.
A divorce petition based on grounds of adultery requires that your spouse signs the acknowledgement of service and consents (agrees) that adultery took place.
Without consent, you will need to provide evidence, and adultery defined as sexual intercourse having taken place is difficult to prove if your spouse will not admit it.
If you have any doubt that your spouse will not admit to adultery, then consider submitting a divorce on other grounds; such as unreasonable behaviour or two years of separation.
In most cases, when a Respondent defends a petition, it is not an attempt to save the marriage. Usually, it’s because they disagree about who is to blame, which is triggered by the allegations about their behaviour.
Top Tip
If you want a quick and low-cost divorce, it is best to agree on what you will write as evidence with your spouse. This reduces the chance of disagreement and your spouse defending the claim.
Remember, adultery is very hard to prove unless your spouse admits to the adultery. For this reason, when you divorce on grounds of adultery, you do not need to go into great detail.
Simply write:
The date(s) and place where the adultery took place
The date you found out and how you found out
The date of separation
For example:
On (date) the Respondent committed adultery at (give address or location) with a man/woman whose identity is unknown to the Petitioner.
Within the divorce petition, there is a section where you can name the person with whom your spouse committed adultery. The other person in these cases is called the co-respondent.
Top Tip
When getting a divorce on grounds of adultery, it may seem tempting to ‘name and shame’ the other person – known as the co-respondent. However, it is best to remain silent to ensure a swift divorce and to keep costs to a minimum.
If you name a co-respondent, it can cause difficulties if the co-respondent does not admit to the adultery or acknowledge service.
If you decide to name a co-respondent:
Since (date) the Respondent has frequently committed adultery at (give address or location) with the co-respondent.
Frequently Asked Questions
Does adultery affect a divorce settlement?
It is a common misconception to think that there is a link between a financial settlement and behaviour such as adultery. This is not the case.
The courts will only take the behaviour of the parties into account if it is relevant to the case. For example, in the case of finances, fraud, or the co-respondent is unsuitable to be around children.
What judges do consider is marriage length, children and earning potential and others, to decide if a divorce settlement they are present with is fair.
Will my adultery allegations be made public?
The details of your divorce are only visible to the Petitioner and the Respondent, any legal representatives either party has and the court staff. Details of adultery that you provide are not available to the public.
Are there any time limits when divorcing for adultery?
Some married couples try and carry with their marriage following adultery. Some can work through their issues, but many, understandably to choose to divorce on grounds of adultery.
However, care is needed. Continue to live with your spouse for more than six months after you found out about the adultery, and you will not be able to divorce on grounds of adultery.
If you continue to live together for more than six months, the court sees this as acceptance of your spouse’s actions. Now you must seek another ground for divorce, such as unreasonable behaviour or two years separation with consent.
My spouse won’t admit adultery, what options do I have?
Adultery is an accusation which often spurs strong emotional responses. This increases the risk that your spouse will want to defend their reputation.
If your spouse does not admit to the allegations, you can proceed with your divorce using unreasonable behaviour. Allegations of unreasonable behaviour do not require proof of a physical act, unlike adultery.
Divorce on grounds of unreasonable behaviour requires that you give the court four to five examples of your spouse’s unreasonable behaviour. One of which could be your spouse having an inappropriate relationship with another person.
As you have probably gathered, proving adultery is very difficult. This is why many couples decide to use unreasonable behaviour as the ground for their divorce.
If you have any questions about adultery or the other grounds for divorce, or simply want a friendly non-judgemental chat call us on 020 4530 8101 or request a call back in the message button below.
