When a marriage breaks down as a result of adultery, we are often asked how it will affect the divorce.
The answer is simple: not much in all but the most extreme cases. This is because the process of getting a divorce has become less about assigning blame and more about finding an amicable solution.
In this article, we’ll explore this further by taking a look at how adultery fits into the modern UK divorce process. We will cover:
- The legal definition of adultery
- How its role has changed with new divorce laws
- How adultery affects different aspects of divorce, such as court fees, financial settlements, and child custody
Understanding all of this is important for those going through, or considering, a divorce as there seems to be widespread misunderstanding of the effect adultery can have. There’s no doubt an affair can be extremely hurtful and traumatic for the aggrieved party, but – as we’ll see – it has little consequence from a legal standpoint.
What’s the legal definition of adultery?
The legal definition and historical significance of adultery have evolved over time. It was, up until 1857, a criminal offence, for example.
Nowadays, adultery is defined as voluntary sexual intercourse between a man and a woman where at least one of them is married to someone else. It’s no longer a criminal offence, although it was (until recently) important to have a legal definition so it could be used as grounds for divorce. This is no longer the case due to the introduction of no-fault divorces.
Is adultery grounds for divorce?
Under the old divorce laws, you needed to prove one of five reasons for divorce in the UK. These included adultery, unreasonable behaviour, desertion, two years’ separation with consent, or five years’ separation without consent.
However, proving adultery could be challenging and often led to increased tensions between divorcing couples.
In fact, citing adultery as the reason for divorce was not as commonplace as you may think. According to 2018 figures from the ONS, adultery was only the fourth most commonly cited reason for divorce (after unreasonable behaviour, two years’ separation with consent and five years’ separation).
The problem stemmed from the fact that the legal definition of adultery is very narrow (for example, excluding same-sex relationships or other forms of intimate contact). It also could not be relied on in circumstances where a couple continued living together for a period or periods in excess totalling six months.
This did not, of course, prevent a couple from divorcing, but they had to rely on factors other than adultery.
Then, in April 2022, the UK introduced no-fault divorces. The new system allows couples to divorce without assigning blame to either party.
In short, you no longer need to provide a specific reason (or “grounds”) for the breakdown of your marriage. Instead, you simply state that the relationship has irretrievably broken down.
This change aims to reduce conflict and make the divorce process less stressful for all involved. It also eliminates the need to wait for a separation period if both parties agree to the divorce.
How does adultery affect a divorce?
Adultery can be an emotionally charged issue, but its impact on divorce proceedings is often misunderstood.
Whilst the partner who has not had the affair may feel that they should in some way be compensated for the betrayal, or that the partner who has had the affair should be penalised, the courts take a far more pragmatic approach. They understand that there may be many contributing factors to the breakdown of a marriage and their objective is to reach an outcome that is fair to both parties without apportioning blame.
While its impact may not be as extensive as some believe, it’s still useful to understand how adultery can shape the divorce process. Let’s take a look at the key areas in further detail.
Who pays for a divorce when there’s adultery?
Simply, the cost of the court fees when applying for a divorce (currently £593 as of 2024) are paid by the petitioner, i.e. the person who files for divorce. Adultery has no impact on this, but under the new no-fault system, both parties can make a joint application and split the costs.
Does adultery affect divorce settlement?
In most cases, adultery does not directly affect financial divorce settlements.
When considering the appropriate level of financial settlement, the court will consider several factors, including:
- The income and earning capacity of both parties
- Their future financial needs, the standard of living
- Ages
- Duration of the marriage
- Contributions
- Any other factors deemed to be relevant
This list, whilst not exhaustive, does not include an adulterous relationship or affair. That said, if you’ve committed adultery and you’re concerned about how it might impact your financial settlement, you could speak to one of our family law solicitors for guidance.
Does adultery affect child custody?
Adultery typically has little direct influence on child custody following a divorce. The courts focus on the child’s welfare rather than punishing a parent for infidelity.
Your ability to care for your children is the primary consideration. If adultery hasn’t affected your parenting skills, it’s unlikely to impact custody decisions.
There are (extreme) exceptions. If the adulterous behaviour has put the children at risk or significantly disrupted their lives, it may be considered.
Instead, there’s a set framework to establish the ‘best interests of the child’ in custody decisions. The framework looks at various factors to determine what arrangement will benefit the child most, such as:
- The child’s physical and emotional needs
- The ability of each parent to meet those needs
- The child’s relationship with each parent
- The child’s wishes (depending on their age and maturity)
- Any risks to the child’s safety or well-being
Adultery only becomes relevant if it directly impacts these factors.
Legal Advice During A Divorce
If you are filing for divorce and need legal advice, whether it’s child arrangements or a financial settlement, our expert team are here to help. We work hard to provide a fair outcome, even in the most complex of cases, and we’ve worked with thousands of couples over the years.
For guidance on your next steps, we are here when you need us. Please call us on 0161 969 3131 or fill in our contact form and one of the team will be in touch.