Adultery under English divorce law refers to sexual intercourse involving penile penetration between a man or woman married person and someone of the opposite sex outside of marriage. It can be claimed as a rationale for seeking divorce and to establish that the marriage is “irretrievably broken” as required under section 1 of the Matrimonial Causes Act 1973 (MCA). There are various other grounds for seeking a divorce, such as unreasonable behaviour and desertion. Claiming adultery as a ground for divorce is not straightforward and requires the satisfaction of several conditions.
Divorce can only be sought only on completion of a year of marriage. Therefore, a party invoking adultery as a ground for divorce must wait for a year before filing for the divorce. The petitioner must prove in court that their partner has committed adultery and that they find it “intolerable” to live with them as required under section 2(a) of MCA. The petitioner cannot rely on a mere exchange of intimate text messages, kissing, virtual sex or heavy petting as this would not constitute “adultery” under law. The burden of proof is on the petitioner on the balance of probabilities. It should be noted that proving adultery is very difficult due to its narrow purview. The existence of an extramarital relationship will not suffice unless sexual intercourse is proven as a matter of law. Adultery can be established using a confession by a partner, birth of a child or report of investigation suggesting that the partner was living with someone else. According to the Office of National Statistics, only 1 in 7 divorces is granted on the grounds of adultery.
Furthermore, in order to assess whether it is “intolerable” for the petitioner to live with the respondent, the court will gauge their circumstances and response to adultery by employing a reasonability test. Since adultery is defined as ‘penetration of a woman’s vagina by a man’s penis, any act of sexual intercourse between same-sex individuals cannot constitute adultery as a matter of law. The irrationality of conceiving adultery in this way will be eliminated by Divorce, Dissolution and Separation Act 2020 (DDAS). DDAS removes the concept of fault for invoking divorce and will come into force in April 2022.
It is important that a party immediately discontinue living with their adulterous spouse upon learning of their misconduct. The court will consider them to accept their partner’s adultery if they keep living with them for a period or periods amounting to 6 months. Divorce on the ground of adultery then would not be possible.
A petitioner may want to name the third party as a co-defendant in the proceedings. This, however, is neither mandatory nor recommended under Practice Direction 7A of the Family Proceedings Rules 2010. It makes the divorce process more complicated, expensive and protracted. A party may be tempted to claim adultery in court so that they could get a more beneficial financial settlement. However, experience suggests that it is unlikely to happen as courts rarely consider the reason behind divorce while allocating financial assets between the parties.
It is favourable to claim adultery in court only when the respondent confesses to the allegations and agrees to a divorce. This will make the divorce process quicker. The Judge will grant the divorce without significant delays given the rest of the process is smoothly done and all above-mentioned conditions are fulfilled. Some leeway in the financial settlement is possible only if the petitioner proves that adultery has damaged their financial position, the bar for which is very high. If the couple is not living with each other, adultery can still be used as a basis for divorce as long as they are legally married. So in situations where other grounds such as unreasonable behaviour or desertion for a specific amount of time cannot be used, adultery can be claimed.
Claiming divorce on the grounds of adultery can add to complications in divorce especially if the respondent seeks to defend themselves. It is better to rely on the ground of unreasonable behaviour such as inappropriate relations with someone, especially if it is not the intention to implicate a respondent living abroad in criminal proceedings on the grounds of adultery. There is no need to prove sexual intercourse, unlike adultery. Such divorces are generally issued within 4-5 months of filing.
If a party chooses to claim adultery, they will file a divorce petition to the local family court. The other party is sent a copy of it and is expected to respond to the petition within eight days, either accepting or defending the divorce. If they disagree, they’re required to defend themselves within 21 days giving their side of the story. If the respondent doesn’t respond to the notice, the other party is still likely to get a divorce decree from the court. During divorce proceedings, both parties make court appearances until the matter is resolved and divorce is issued.