What is adultery?
To obtain a divorce you need to prove that your marriage has irretrievably broken down. One of these reasons or “facts” can be adultery. Everyone has different understandings of what they would consider to be adultery. The majority of people would say that it is having sex with someone behind your partners back. A partner is someone you are in any kind of relationship with, be that living together, married or seriously dating.
For divorce in the UK, adultery can only happen if you are married. Even if you are in a civil partnership, you cannot commit adultery. Although you are in a partnership which is legally binding, you are not classed as married. You’ve probably noticed the drop-down menu when you take out something like car insurance. It asks for your status, and includes married or civil partnership as two of the options.
Adultery if you are in a same-sex marriage
This brings us onto being married in a same-sex partnership. In the eyes of the law, a person cannot commit adultery with someone of the same-sex. Same-sex couples cannot use this reason for divorce unless of course they cheat on someone of the opposite sex. Say for example a man in a same-sex couple has sex with a woman. The husband could say that his husband committed adultery as he had sex with a woman.
It seems that although marriage laws for same-sex couples have modernised, there are still remnants of the “olde-days” hanging around. It is no doubt frustrating for married same-sex couples that they cannot use adultery as a ground for divorce.
Six months to forgive and forget
It is worth noting, that you can only apply for a divorce using adultery, up to six months after the indiscretion. So remember, if you decide to try and forgive your cheating partner and after 6 months decide you cannot, you can’t go on and cite adultery as the reason for your divorce. After 6 months, the law considers you to have forgiven your spouse for their misdemeanour.
To divorce at this juncture, you would have to use another reason such as unreasonable behaviour. You could say that you tried to forgive your ex but they didn’t try hard enough to make things right. A family lawyer will assist you with getting over this legal hurdle.
The “six month” period starts at the point where you discover that your spouse has had sex with someone else. If you find out about the first sexual encounter and then go onto discover more acts at later dates, you can start the 6 month period over again. This is because you have just found out, even though you have found out again.
Can you prove adultery?
Everyone sees adultery in a different way and different couples have unique ideas. For one partner, their spouse being on a dating app might count as adultery, to another, only full-blown sex counts. Even if your spouse has been physically intimate with another person, they have to have actually had sexual intercourse. The problem is, how do you prove that? How can you provide evidence which is strong enough to hold up in court?
If you suspect your spouse is having an affair, you may be tempted to hack into their phone or computer and whilst you might go ahead and do this, the evidence you find will not be allowed in court because of privacy laws. You are not allowed to go into your spouses private matters, even if you are married.
So with all this in mind, it seems that it could be very difficult to use adultery as a reason for divorce unless your spouse admits to it or maybe if you have caught them “in the act” with their lover.
Does it matter if you can’t use the reason of adultery
If you have been cheated on, it is normal to be angry and upset and for you to want the reason to be written on the court documents. It can become a real sticking point because you want the adultery to be legally recognised. However, you may have to settle for unreasonable behaviour instead. It may seem unjust at the time, but in years to come, when it’s all over, the “reason” will seem less important. At the end of the day both you and your ex will know the real reason for the end of the relationship. Divorce papers are not public records, so no one is going to be able to see the reason for the divorce.
The reason for the divorce can start to become irrelevant when you finally have the Decree Absolute in your hand. If you are having issues with the reasons for divorce and moving on, it could be very worthwhile speaking to a Divorce Coach – you can find coaches listed in The Hug Directory.Alison – Founder of The Group Hug
Who can use adultery as the reason for the divorce?
In terms of the courts, the applicant for the divorce needs to satisfy the court that the respondent has committed adultery and that they cannot possibly live with them anymore. The person who has committed adultery cannot use this as the reason to divorce the innocent spouse. The reason for this is that it is the person who files for divorce (the petitioner) who has to state that they find it intolerable to stay married to the respondent (the other spouse).
The court would not accept a person basically saying “I want a divorce because I can’t stay married to my spouse after my affair”. It doesn’t make any sense. For someone who wants to file for a divorce because of their own infidelity, the solution could be that they invite their spouse to file and offer to pay their fees.
Use their guilt to get what you want
They could also come up with a Separation Agreement during this process to offer some protection to their innocent spouse in terms of a financial agreement. Again, it’s vitally important to speak to a family lawyer early on in this process. When one spouse is feeling “guilty”, it can be the right time to get a good agreement in place for the innocent spouse. Find Family Solicitors in The Hug Directory
Also bear in mind, if you name “the other party” in adultery, they will also need to receive a copy of the divorce petition. This is a legal requirement. Normally, family lawyers will advise not to name the other party as it can cause added complications if they choose not to respond. Consider that this person has been involved enough and don’t allow them to have anything to do with your divorce.
As with all divorce matters, it’s best to get some expert advice. With regards to adultery, in the end you may decide to use unreasonable behaviour as the reason.
Our blogs are all support based – we are not legal experts, so please seek professional legal advice.