Adultery and Divorce Proceedings

In the jurisdiction of England and Wales, there is only one ground for divorce, the irretrievable breakdown of a marriage.

If you are petitioning for divorce, you must rely on one of five possible facts to prove the irretrievable breakdown, one being adultery. There is a second limb to adultery; that is, that the petitioner must find it intolerable to live with the other party. There is no need to show that the petitioner finds it intolerable to live with them because of their adultery.

Family law defines adultery as voluntary sexual intercourse between a man and a woman in which one or both are married to someone else. This is obviously very difficult to prove in the absence of an admission.

If after learning about your spouse’s affair you continue to live in the same household with them for a period of more than 6 months or periods amounting to more than 6 months, you will be prevented from relying on this fact. This is not the case if you can show that you have been leading entirely separate lives.

In a recent case, both the husband and wife accused one another of having affairs and the wife even admitted the affair however the judge stated that there was still a “subsisting marriage”. This subsisting marriage was evident because both parties continued to go on holiday together, sleep together, the wife had access to the husband’s financial resources. The wife even had photographic evidence to show that after her affair the marriage was still ongoing.