Divorce : Adultery

To obtain a successful divorce in England & Wales jurisdictions, you must establish that the marriage had broken down irretrievably.

You must first fulfil the following before petition is issued -

· you’ve been married for over a year

· your marriage is legally recognised in the UK (including same-sex marriage)

· the UK is your permanent home, or the permanent home of your husband or wife

Grounds for divorce

When you apply for a divorce you will need to give one or more of the following 5 reasons (also known as ‘facts’).

Adultery

Unreasonable behaviour

Desertion

You’ve been separated for at least 2 years with consent

You’ve been separated for at least 5 years without consent

Adultery as a ground –

Adultery as a ground is riddled with myths and is one of the most difficult grounds to prove.

To establish adultery you must prove that your husband or wife had sexual intercourse with someone else of the opposite sex. Adultery is not a mere extra marital affair or being unfaithful via the internet (a common complaint in the modern days)

What are the limitations and misconceptions when proving adultery?

Time limitations

You cannot give adultery as a reason if you lived together as a couple for more than 6 months after you found out about it.

The act of adultery

‘Adultery’ in the eyes of the law will be confined to the act of sexual intercourse. Therefore adultery is not straightforward to prove unless there is a confession or prima facie evidence such as a pregnancy.

Opposite sex

Adultery can be used as a ground only if one’s wife or husband had sexual intercourse with the opposite sex. The law does not cover same sex.

Separation and adultery

One is still married until one obtains a decree absolute. It’s a myth for couples to think that when they separate from each other, their act of having sexual intercourse with another does not amount to adultery.

Adultery and financial settlements

When the aggrieved party relies on adultery, there’s a misconception to believe that they should be given special consideration when dividing assets/money given the fact that the faulted party’s actions lead to the breakup of the marriage.

Above are some of the common limitations and misconceptions when relying adultery as a ground for divorce. Most times proving adultery is extremely difficult. If clients insists on adultery as a ground, in absence of solid proof or evidence, it’s advisable to rely on unreasonable behaviour as a ground and within which to cite details of the respondent’s act of adultery.