19th Feb 2014

What counts as adultery?

– When new partners arrive on the scene and how it affects grounds for divorce

This is the first in a series of short articles exploring how the presence of news partners can impact divorce and the resolution of financial matters after a marriage has ended.

Having sexual relationships with a new partner months or years after you have separated from your married partner can still count as adultery as long as your final divorce order, the Decree Absolute, has not yet been granted by the court.

Adultery is defined as sexual intercourse between a man and a woman – one of whom was married to a third person at the time. It is a curious anomaly that adultery does not yet apply to same sex intercourse for this reason.

The fact that adultery has taken place and that the marriage has irretrievably broken down will permit a court to grant a divorce provided.  The person alleging the adultery must apply for their divorce within six months of the adultery or of learning about it.  A court might, if asked to do so, order the other party to pay the costs incurred in the divorce.

The person applying for the divorce will sometimes want to name the third party. 

This is almost universally discouraged.  Doing so can create extra legal and practical difficulties.  It is often preferable to leave the third party un-named in order to minimise the time and cost it will take to get matters dealt with.

The vast majority of adultery divorces are admitted. The admission will count as evidence of the adultery taking place and it is rarely necessary, therefore, to prove it. 

If adultery is not admitted then you might be successful in getting a court to accept it has happened if the couple are living together or stay together on occasions.  If a child has been born to the new couple, and they both refer to the child as their child then that will, of course, be a fairly clear indication.

If there is little evidence or a risk that a contested allegation of adultery will be successful then may be better to use the grounds of the other person’s unreasonable behaviour instead.

Let us help you

Family Law in Partnership LLP are award winning specialist divorce lawyers in London.  If you, or anybody you know, is thinking of or going through divorce and would like some help then contact us on 020 7420 5000 or email hello@flip.co.uk