Does Adultery Matter?

Infidelity and Its Role in Divorce and Separation

If 1 in 4 Londoners no longer believe in monogamous relationships, does adultery really matter?

Most of the time, when you speak with family lawyers, extramarital relationships are treated as having little relevance in divorce or separation.

Perhaps because it is so common — and, as our courts generally give it little legal weight — we find ourselves responding to clients with phrases like:

• “Can I just pause you there?” when speaking to someone who has been cheated on; or
• “That’s not really a strong legal basis for your ex to take that approach” when we speak to the person who cheated.

Recently, one of London’s top barristers stated at a seminar: “OK, so they had sex with your best friend; that is not a reason for him not to see your child”. This was not met with any resistance in the room. However, if you engage properly and deeply with the family dynamic, the realities are very different.

The Emotional Reality for Families

I (James) remember seeing two mid-teen boys a couple of years ago in a child inclusive mediation and they were clear that they wanted nothing to do with their dad, who had formed a relationship either at the point of separation (which triggered the split) or shortly afterwards. Their response was that it doesn’t matter when the extramarital relationship started, as the idea was just too horrible to process and their response was to not go on holiday with their dad.

Similarly, the person who has been cheated on will see infidelity very differently.  They may be told by their lawyer that “just because he cheated, doesn’t mean he’s lying about the finances”.  However, it can be difficult to take information at face value when trust has been broken.

Why Courts Rarely Consider Adultery

When it comes to bad behaviour, the court has a very high threshold when assessing what is and what isn’t relevant. A court will only consider conduct when there is, for example, gross and obvious financial misconduct (i.e. hiding assets or reckless depletion of property). However, this is rare. Adultery doesn’t meet that (very high) bar and would be sidelined by any Judge.

This gap in culture between the legal system and natural emotions can lead to additional stress, as people can feel unheard and misunderstood. A lawyer will tell you that adultery will not result in higher financial provision or will not be a factor in parenting arrangements; this is because the court in England and Wales is not designed to be a moral court. However, whilst an affair will not impact the outcome in the legal proceedings, it is likely to have profound impact upon the process and what takes place on the way to reaching an outcome.

Taking Responsibility When You Have Cheated

If you have cheated, there is work to be done. There may be reasons for what happened, and you may feel that given the wider context of the relationship there is an explanation, if not a justification. However, this is not about weighing up who is to blame for the situation.  If you want your ex to engage and t process sensible solutions, then the initiative is with you. There may be no alternative but to do the hard work around:

• What you did
• How that will be making your ex feel; and
• Whether there is any way to a form of equilibrium.

Einstein said: “Problems can never be solved by the same level of thinking as created them”.

Whatever the reason for why the adultery took place, there is now a huge problem in the room.  You can ignore it and press on for closure, but closure is going to be a lot further away if you do not engage in the reality of why your ex is hurt. Our advice is to work your way through these issues and grapple with the anxiety and unprocessed emotional distress they are causing to both you and your ex. In-house Divorce Consultant and Individual & Relationship Therapist Jo Harrison comments:

“My advice is to be sensitive to how your ex is feeling and to grapple with and address the anxiety and distress they may be feeling. This is often a time that a third party such as a therapist can be hugely helpful to make a space for the different and difficult feelings to be aired and thought about. This, in my experience, is an investment towards moving forward.”

Integrating Therapy and Legal Support

At FLiP we may be able help to improve communication and ongoing relations with your ex as we work hand-in-hand with therapeutically trained professionals.  If suitable for you, coordination between your lawyer and one of our therapists would help to ensure your case progresses in an effective and intentional way. We would primarily focus on how you should communicate with your ex throughout the legal process. In our experience, proper time with our relational consultants is likely to reduce the overall spend on lawyers and will accelerate the way toward concluding the proceedings. It will also mean that, at the end of the process, you can look back on how your case unfolded and know that you approached one of the hardest periods of your life with empathy and purpose. 

You can learn more about how our in-house divorce consultants and relationship therapists work alongside our lawyers to provide therapeutic support before, during, and after separation in this blog here.