Info & Advice

Does a cheating partner make any difference to the divorce?

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Before the change in the law in April 2022 which introduced no-fault divorces, infidelity was used as the reason for the breakdown in only 10% of divorces. But the introduction of no-fault divorce now means it is no longer necessary to give a reason when applying for divorce. By removing the requirement to assign blame, no-fault divorce dramatically reduces conflict and encourages a more amicable approach.

What is adultery?

Adultery happens when a married individual has intercourse with someone of the opposite sex, who is not their husband or wife. Having sex with someone of the same sex was not considered adultery, and anyone in a same sex marriage or civil partnership did not commit adultery if they had sexual relations with someone of the same sex.

Previously, this difference was extremely important because adultery could be used as a reason for divorce. However, since no-fault divorces became the only way to obtain a divorce, the only ground available now is the “irretrievable breakdown of the marriage” with no further explanation or reason required.

Is adultery grounds for divorce?

Under the previous divorce laws, adultery, alongside other reasons such as behaviour or desertion, could be given to obtain a divorce. But there was only ever one ground, namely, that the marriage had irretrievably broken down. The no-fault law uses this one ground and no longer allows parties to set out other reasons for the failure of the relationship.

Some people who wish for it to be documented that they were not responsible for the breakdown of the marriage, may feel aggrieved that they can no longer express this. There was also the perception that if a partner committed adultery that it would, in some way, affect the outcome of the divorce settlement, particularly financial matters or arrangements for the care of any children.

In reality, adultery has very little impact on a divorce case, legally anyway. You can no longer use adultery as a reason for divorce or need to provide evidence of such things. It will have no effect on financial settlements, and, unless the welfare of the children is affected, won’t be considered when discussing child arrangements.

Could I still attempt to prove adultery?

It is no longer necessary to attribute blame in a divorce or prove adultery. Whilst you may want it legally cited that your divorce is because of your cheating partner, the process is now far simpler by removing morality from the equation. Adding the process of trying to prove adultery on top of other more pressing matters, such as children and finances, only causes further animosity between divorcing couples.

Is there an alternative reason to divorce my spouse if they have been unfaithful?

While adultery may be the reason for your marriage breaking down, you will not have to legally state this on any applications, or in any court proceedings.

Does adultery affect the divorce settlement?

The fact that your spouse has been unfaithful during your marriage is considered irrelevant when negotiating the financial settlement. The spouse who was cheated on may want to argue their partner’s infidelity caused the end of an otherwise successful marriage, and as a result should therefore receive a greater share of the matrimonial assets. Therefore, to ensure that settlements can be reached more easily, adultery is not a consideration under the Matrimonial Causes Act 1973 as a factor in divorce settlements.

Will adultery affect asset division negotiations?

The assets you have acquired during your marriage, and usually before, will be added to the matrimonial pot for distribution between you. Both parties must then reach an agreement how to divide these assets either through negotiation or via court.

During negotiations, there may be factors within the Matrimonial Causes Act 1973 that apply to the spouse where they will argue they deserve more than 50%. However, infidelity is not considered a factor that affects asset division. Most commonly, considerations such as which party the children will live with on a day to day basis, or the existence of a pre-nuptial agreement will be what is taken into account.

Can I add an infidelity clause to my pre-nuptial agreement?

While infidelity clauses are common in the US, conduct such as adultery or infidelity is not a consideration of financial division under UK law. While pre-nuptial agreements are generally legally binding, a judge can question its validity. So although an infidelity clause may seem like a great way to penalise a partner if they were to stray, a judge may question whether the partner who signed this was coerced or in a bad place emotionally when it was signed.

Will adultery affect spousal maintenance?

Adultery may have an influence on whether spousal maintenance is payable. However, it depends on the circumstances of the case. In particular:

  • If it was a short marriage without children
  • Both parties have good jobs
  • You committed adultery and are now in a long-term relationship with your new partner. This may affect spousal maintenance if you are cohabiting with your new partner
  • You committed adultery but have remarried – if you remarry you cannot apply for spousal maintenance. If the court ordered spousal maintenance, then the payments will automatically stop on your remarriage

Does adultery or having an affair affect child custody?

While people typically talk about child custody under English law, there is no such thing. This term can give a false impression as to how child arrangements are dealt with during a divorce. Committing adultery or having an affair is unlikely to have any effect on child arrangements and is usually negotiated between parents without the court’s intervention. Even if you did need to make a court application, it will only look at what is in the child’s best interests when making a decision.

The only way having an affair or adultery would be considered further is if it would negatively affect the child’s welfare. For example, if the child was exposed to inappropriate situations because of the adultery or affair, then it may have an impact.

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