Adultery in divorce proceedings – what you need to know

Petitioning for divorce on the fact of adultery is relatively common. In an earlier blog, we discussed the most common of the five facts of divorce, namely unreasonable behaviour and you can read this blog here.

In order to petition for divorce, the marriage must be irretrievably broken down. This is the only ground for divorce in England and Wales. Once this ground has been established, the petition will be based on one of five facts:

  1. Unreasonable behaviour
  2. Adultery
  3. 2 years separation by consent
  4. 5 years separation
  5. Dessertion

Adultery and unreasonable behaviour are the only two facts that allow the petitioner (the person starting the divorce) to initiate divorce proceedings immediately. The other three facts set out above all require a time period to have passed.

The definition for these purposes is ‘voluntary sexual intercourse between a man and a woman‘ and such intercourse must involve the penetration of the woman’s vagina by the man’s penis as per the old case of Dennis v Dennis. Despite the Marriage (Same Sex Couples) Act 2013 coming into force, adultery is still legally defined as intercourse with two people of the opposite sex.

The intercourse, as defined above, must be voluntary. This means that victims of rape did not commit adultery under this legal definition. However, the perpetrator of the rape can be considered as having done so.

The most difficult hurdle is proving that the adultery happened. In most cases, this will be in the form of a confession by the respondent but can be from evidence, the birth of a child to the wife or findings made against the respondent in other proceedings. Once proven, the petitioner can name the ‘co-respondent’ i,e, the person with whom the respondent committed adultery. The Family Law Protocol discourages petitioners from naming a co-respondent as this serves only to cause acrimony between the parties.

It is important to note that the petitioner cannot rely on this fact if after becoming aware of the adultery, the parties continued to live together for a period of 6 months, irrespective of whether they are consecutive months or separate periods that exceed 6 months.

Serving Bedford, Northampton and Milton Keynes, our lawyers can help you with your family law and divorce matters. If you are considering starting divorce proceedings and would like to discuss your options with an experienced family solicitor, contact us on 01234 889777 for a free consultation.