Can I cite adultery as a reason for divorce in the UK?

What is adultery in divorce?

Legally, adultery constitutes the act of having sexual intercourse with a person of the opposite sex who is not your spouse. It refers to the physical act of sexual intercourse. Therefore, other sexual, romantic and emotional acts, such as kissing or touching, were not ‘legally’ considered acts of adultery.

Surprisingly, if a partner had sexual intercourse with a member of the same-sex, then it would not be considered adultery. Under English Law, adultery is defined as intercourse between a man and a woman.

Is there a difference between adultery and infidelity?

Infidelity and adultery differ. Infidelity wasn’t legally a reason for divorce unlike adultery. For example, if a wife’s husband kissed another woman but didn't have intercourse, it would not be considered adultery in the eyes of the law. Therefore, before the introduction of no-fault divorce, you would have to cite it as ‘unreasonable behaviour’ which is a much broader term.

Is virtual infidelity grounds for divorce?

With instantly accessible dating apps, such as Tinder and Bumble, straying partners now have the ability to cheat ‘virtually.’

You may think a married partner, performing acts such as ‘cybersex’ with a person other than their spouse, would have been considered adultery.

Whilst still an act of infidelity, online sexual activity was not considered a valid reason to cite ‘adultery’ for divorce. In this situation, before the ‘no-fault divorce' law reforms, you’d likely cite this as ‘unreasonable behaviour’ in your divorce application. Now, under new law, you wouldn’t need to provide a reason for your divorce, and therefore are spared from having to reveal any upsetting proof to the court.

Can I still cite adultery as a reason for divorce?

Under previous law, you were able to cite ‘adultery’ as one of five reasons for your divorce. Now, ‘ground for divorce’ is no longer applicable in English and Welsh divorce law.

On 6 April 2022, the Divorce, Dissolution and Separation Act was introduced, which meant blame no longer needed to be attributed to either party. Therefore, you no longer need to give a reason for your divorce in your application to the court.

The process of getting a divorce can take a huge emotional toll, therefore the new reforms sought to bring about more ‘amicable’ divorces. The ‘blame game’ that came with having to name a reason for your divorce was thought by campaigners to have complicated the process; leading to challenges when dividing assets, or making arrangements for any children.

Could I still attempt to prove adultery to court?

No, now new reforms to divorce law are in place, there is no need to attribute blame in a divorce or prove unreasonable behaviour or adultery.

Originally, attempting to prove adultery presented its own difficulties in divorce proceedings. Unless the other party admitted to their adultery, you could only attempt to prove it in the form of messages, phone calls, witnesses or hotel bookings, although likely to little success.

In 2018, only 10.1% of divorces in England & Wales were granted on the basis of adultery. This low figure is likely due to how difficult it is to prove the offending partner had physically engaged in sexual intercourse with a member of the opposite sex outside their marriage.

That’s not to mention that same-sex couples were unable to cite adultery if their partner were to stray. Unreasonable behaviour could more easily be cited and proved, and was in-fact, the most common reason for divorce among both opposite-sex and same-sex couples in 2019.

While you may want it legally cited that your divorce is due to a cheating partner, the divorce process is made far simpler by morality not being brought into the equation.

Adding the process of trying to prove adultery, on top of dividing finances, and settling on new living arrangements, only causes further animosity between separating partners. Now, partners can heal from the devastation of an affair away from the legal system; leading to a quicker start to a brighter future. Learn more about no-fault divorce.

Is there an alternative reason to divorce if my partner has been unfaithful?

As there is no need to cite a specific reason for your divorce, the original five reasons to cite a divorce are replaced with the alternative (and only) ground for divorce - ‘The Irretrievable Breakdown of the Marriage.’

Of course, adultery may still be the reason your marriage has broken down, you just simply won’t have to legally state this on any applications, or in any court proceedings.

Who pays for a divorce adultery?

Does the cheating partner pay the divorce fees?

Often, the spouse who's been cheated on may consider their divorce a financial loss they could have avoided if their partner had not committed adultery. Therefore, they may believe their partner should be held responsible for the cover of any of their legal costs.

No court would deem a partner who committed adultery the de-facto payer of the court fees. The fee would usually be paid by the party filing for divorce, however, under the new system you’re able to make a joint application. In this instance, you and your partner would share the cost of filing (£593).

Does adultery affect divorce settlement?

Even before the introduction of no-fault divorce, the grounds of divorce are considered irrelevant when negotiating financial settlements which must be in line with the Matrimonial Causes Act 1973.

The spouse who was cheated on may want to argue their partner’s infidelity caused the end of an otherwise stable marriage, and therefore they deserve a higher share of matrimonial assets. This would lead to increased animosity, and would most likely negatively impact divorce settlement negotiations. Therefore, to ensure settlements can be reached easier, adultery has not been considered an affecting factor of divorce settlements.

Does adultery affect asset division negotiations?

A no-fault divorce doesn’t automatically mean assets will be divided 50/50 between spouses. In-fact, asset division works the same as it did before no-fault divorce was introduced.

The assets you and your partner have acquired during marriage (and usually assets before marriage) are added to the ‘matrimonial pot.’ Both parties must then decide how to split their assets through negotiation.

In negotiations, there may be factors within the law that apply to the spouse where they will argue they deserve more than 50%, although adultery isn’t considered an affecting factor of asset division. Most commonly, considerations such as which partner any children will live with most regularly, or a prenuptial agreement, are what’s taken into account.

To make the financial settlement legally binding, a ‘consent order’ from the court must be obtained.

Can I add an infidelity clause to my prenuptial agreement?

You may have heard about ‘infidelity clauses,’ most likely in a US sitcom, where they’re natively more common. In the UK, conduct such as infidelity or adultery is not a consideration of financial division. In some cases, conduct can be a swaying factor. For example, if a partner’s contribution to the marriage was extraordinarily good or bad then the court may not disregard it as it would be unjust.

While prenuptial agreements are usually binding, a judge can decide to question its validity. While an infidelity clause may seem like a great way at the time 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 mentally when they signed.

In England & Wales, no court has determined whether a penalty clause should be upheld.

I committed adultery, do I have an obligation to admit this in a divorce?

There is no legal responsibility to disclose your adultery in the divorce process. You don’t need to provide this in your application nor admit this in any divorce proceedings in court.

Many spouses who’ve committed adultery may be anxious their affair will cause them financial losses in court or affect their child arrangements. Rest assured, the court won’t penalise a spouse for adultery, and as covered, will not affect any financial settlement between spouses.

If the court is aware of adultery, will child arrangements be affected?

If children are involved, the Court typically favours that children maintain contact with both parents, and any adultery committed on either partner’s side would not impact this. Only extremely serious reasons would need to be presented to court to prevent one partner having contact with children. For more information on child arrangements after divorce, see here.

How Slater and Gordon Lawyers can help you

Regardless of why or when adultery occurs, it can have devastating consequences for relationships. If you’re seeking to separate from your partner, it’s important that you’ve access to expert legal advice to help you through this difficult process. We understand the emotional strain that our clients are under when they need legal advice in situations like this, and we have unparalleled experience in this area of the law.

• We’re highly ranked in independent legal guides
• Many of our family lawyers are members of Resolution - an organisation committed to resolving family law cases constructively
• We’re accredited by industry specialists
• We offer both fixed fee and flexible pricing divorce services and will help you get the outcome you’re looking for in the most cost-effective way.
• We work closely with a range of dedicated charities throughout England, Scotland and Wales who offer a full range of practical advice and support
• As one of the largest consumer law firms in the UK, we’re able to offer an end to end service for all your legal needs and independent financial planners for compensation protection

To find out more, simply contact us on 0330 041 5869. Alternatively, send your email to Georgina Chase, Head of Family Law. Georgina has unparalleled expertise in this area, and was recognised as a 'Recommended Lawyer' by the Legal 500 in 2023. See what a recent client has to say about their divorce experience with Slater + Gordon:

“Georgina Chase dealt with my divorce, she and her team are excellent. Whenever I had a query they would deal with it that day and it was sent to the other party. Everything about Georgina is professional and she is extremely knowledgeable and an obvious expert in her field.” - review sourced via Trustpilot.