My Spouse Had An Affair, Will It Affect My Divorce?

I often spend quite a bit of time with my clients wrestling with this question.

Family law does have a moral dimension – of sorts – and you would think therefore that someone who has betrayed the trust in a relationship by having an affair would bring centre-stage a whole raft of consequences for example:

• the orders that a court might be prepared to make around occupying the home; or
• providing care to children; or
• indeed, the financial division.

It is really hard then for these clients to hear that adultery (with all the lies and betrayal that this usually involves) is pretty peripheral.  It is as if clients are experiencing their separation in technicolour, with all its distress and I am insisting that the only things that the court will see and take account of are what registers in black and white. That is:

• When it comes to occupying the home, the court is going to focus on safety.  Where realistically each of you and any children are going to be safe enough at least to coexist (and really substantial levels of risk are going to be required for the court to intervene) then the court is not going to make an order.
• When it comes to parenting, the court will do what is in the child’s best interests. That very much now is seen as being a full open and meaningful relationship with each parent, where safe.  By the time you are at court, with a magistrate or a District Judge giving directions about parenting arrangements, any affair is going to have very much melded and become part of the background.
• And it is the same story over the finances. Spouses have entitlements to share – generally equally – in marital property (what has been built up by the marriage or woven into its core by actions or history).  They may then ask to top up that provision (whether by additional pension or capital or maintenance orders) where the needs of the more financially vulnerable spouse demands this (bearing in mind the standard of living during the marriage and its duration).  Betrayal, hurt and moral condemnation have no part of this analysis.
• The family courts dealing with the finances of couples who have never married will be further distanced from the moral events that may have ended the relationship: between the couple it will be an historic analysis as to entitlements in property.  Where a child is involved, claims on top can be made but these will all reference the child’s needs: adult behaviours are not part of the mix.

So is adultery utterly irrelevant the second that families are separating and turn towards the law? Well no.

And the reason for this is that a court is going to be deciding these questions in probably fewer than one in twenty situations.  Almost always agreements are reached.  Our endeavour at FLiP – similar to most lawyers doing this work – is to find the best workable solutions early on and before process costs start to erode what is achievable and before the intrusion of a formal process exhausts the separating parties further.  Where there have been events in the marriage that have terminated trust and generated upset, it just becomes way harder to help everyone to focus on solutions within a realistic frame.

So, that is the real impact of adultery/ betrayal or any other historic actions in a relationship: they have impacts – not perhaps so much on the court and how it will behave, but on the devastated former partner and how they’re able to then step forward into the negotiations.

That is why at FLiP we so value the input of our in-house divorce consultants and relationship therapists.  They offer our clients the chance of processing more quickly the growing unhappiness that probably lay behind the affair itself and the natural responses to the event.  On top of this they will help the parties to deal with their fears of this process and for the future more generally.

Andrew Pearce, one of our in-house therapists says:

“As has been highlighted this is another example of where the legal and psychological domains meet. Whether it is at the point of discovering infidelity or a breach of trust and considering next steps/how to respond, or support through separation and the myriad of emotions associated or perhaps drawing on the experience to avoid affecting future relationships ( including those with children) and regaining equilibrium and trust, it can be invaluable to have a safe neutral space to process.

At FLiP we pride ourselves on an holistic approach with our clients to help you best navigate both the legal and, especially in this context, the emotional challenges you are experiencing.”

Our relationships are generally founded on a very clear moral code.  It is why so often they end when that code is breached.  It is perhaps unfortunate that our law does not give voice to that morality – but our court cases would be impossibly expensive and long-lasting if they did so.  This is why having help to manage the hurt and upset is so crucial so that where the relationship cannot be rebuilt the parties can nonetheless move forward with their lives into the future.

And for the person who chose the affair?  Well, I swear that so often they are the ones who are incredulous at their ex’ behaviours, who are stuck in long cases involving the CMS or trying to make parenting work or finding themselves on the long march to court.  Often we will find ourselves talking about “well how did it end?” and “what do you think would be the shockwaves rolling off the back of that?”  These are the clients who failed to find a way to say sorry and who are now managing a case that appears to have nothing to do with adultery but where realistically the adultery is the magnetic and defining factor – perhaps not of the court’s adjudication but the reason why an adjudication is needed at all.

If you are going through a divorce we encourage you to talk with one of our team of Divorce Consultants and Individual & Relationship Therapists, alongside your legal team, in order to fully consider all aspects. Find out more here.

FLiP Director James Pirrie recognises that all families are different and for this reason, each family will need the right process at the right time to have the best chance of the optimal outcome.  James conducts litigation as an arbitrator, accredited mediator and collaborative lawyer. James can work within the one couple – one lawyer model and as a negotiator or advocate, engaging a wide range of allied professionals and resources to find the right resources for you to secure the right outcome in the best way possible.