“My spouse has cheated and I want a divorce – now what?

The breakdown of any marriage can be a particularly stressful time for all involved. Divorce can be more painful if one spouse has been unfaithful to the other. In this article we will set out the legal ground for divorce using ‘adultery’ and explain the pros and cons of using adultery as a basis for divorce.

Can I use Adultery for Divorce?

You must complete a divorce petition to begin the divorce process in England or Wales. In this, you should explain to the court why your marriage has irretrievably broken down. You should do this in writing and give reasons. You can choose one reason from the following list:
1. Your spouse has committed adultery.
2. Your husband or wife has behaved so unreasonably that you cannot be expected to remain married to them.
3. Your spouse has deserted you for two years.
4. You have been living separately from your spouse for two years and your spouse consents to the divorce
5. You and your spouse have lived separately for five years

You may wish to read our information guide to applying for a divorce.

If your husband or wife has had an affair, you may wonder whether to use ‘adultery’ as the basis for proving ‘irretrievable breakdown’ of your marriage within your divorce petition.

However, using adultery is not straightforward and there are issues you must consider. The first, is to meet the legal criteria for adultery.

To use adultery as the basis for irretrievable breakdown of marriage, you must show that:
1. Your spouse has committed adultery
2. You find it intolerable to live with your spouse (this does not need to be because of the adultery)

What is Adultery?

Case law defines adultery as ‘voluntary sexual intercourse between a man and a woman who are not married to each other but one or both of whom is or are married’. This means that for you to use adultery, your spouse must have had a sexual relationship with another person. Proving that a sexual relationship is difficult.

Many individuals in this situation may have seen text messages or emails that infer a sexual relationship has taken place. This may not be sufficient to prove adultery.

Adultery can be proved by:
1. A confession statement by your spouse
2. The birth of a child
3. Other circumstantial evidence (e.g a report by an investigator showing that your spouse is living with a new partner)

You cannot use adultery to prove the breakdown of your marriage, if you have lived with your spouse for 6 months after finding out about the affair.

Naming a co-respondent (your spouse’s new partner)

In order to rely on your spouse’s adultery as the reason for the irretrievable breakdown of your marriage, you do not need to give details of the person your spouse was having an affair with. Naming the other party can add acrimony to the divorce proceedings, and increase legal costs.

If you do name the other party, they will be made a ‘co-respondent’ to the divorce proceedings. This means that they will need to be served with the divorce proceedings.

Alternatives to citing Adultery

You may be worried that you cannot prove the legal requirements for adultery. Another concern may be that citing adultery could cause criminal implications for your spouse. For example if they work overseas in a Middle East country where adultery is a criminal offence. Instead, you may choose to cite your spouse’s ‘Unreasonable Behaviour’ as the reason for the irretrievable breakdown of your marriage. This means you must give 5-6 specific examples of when your spouse’s behavior has been so unreasonable you could not be expected to remain married to them. For advice on what should be included in your divorce particulars, please get in contact with us and a member of our team will be able to provide you with some free initial advice.

Impact on financial remedies following divorce

It is worth noting that in England and Wales, the divorce is a separate process from that of financial remedies including spousal and child maintenance. This means that a different judge will deal with your divorce and the financial aspects.

Judges will normally consider your financial remedy application independently of the reasons given for the divorce itself. The primary consideration is the welfare of children under the age of 18. Next the court considers equality when sharing the resources built up during the marriage. It is unusual for adultery to impact on the division of assets on divorce.

Instead, the court will take into account a number of factors when determining what is ‘fair and reasonable’ for both parties including:-

• Current income and earning capacity.
• Property and financial resources available to each party now and in the future.
• Your current financial needs and obligations as well as in the future.
• The standard of living as a family unit.
• Your ages and length of the marriage.
• Any physical or mental disabilities either of you have.
• Overall contribution to the welfare of the family (financial and emotional).
• Value of any spousal benefits to be lost on divorce.
• Conduct when it is so gross and obvious if it would be inequitable to ignore it.

What conduct affects the financial split on divorce?

The threshold for what the financial remedies court will consider as ‘gross and obvious’ misconduct is extremely high. This is because the purpose of the financial proceedings is not to lay blame or question the morality of the parties’ actions. Instead,  the assets accumulated during a marriage should be divided for the benefit of both spouses and their children.

Significant examples of misconduct that may be taken into account include:
• “Extravagant living” and excessive spending by one party without the knowledge and consent of the other (Martin v Martin [1976] Fam 335).
• Significant criminal activity especially financial crime.
• Conduct that is said to have the “gasp factor” (W v W [1976] Fam 107 and FS v JS [2006] EWHC 2793 (Fam)).

Each matter is examined by the Judge on a case by case basis and every case is different. If you wish to discuss your options regarding divorce or financial remedy proceedings, please do get in contact with us via info@expatriatelaw.com or call us (+44) 20 3096 7169.

Question, comment or concern? Our contact form is the best way to get in touch with a member of our team.

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