Anyone who has watched the latest series of Doctor Foster will be acutely aware of the perils of adultery! Some might say admitting to it may even be worse than committing it in the first place but either way, the results can be dire if not handled correctly. From a practitioner’s point of view, debunking some of the common myths surrounding the tricky area of adultery is as pertinent as ever.

The definition is strict if you want to go down the adultery route.

Adultery entails sexual intercourse between a consenting male and female. If you are in a same sex marriage and commit same sex adultery (be it gay or lesbian), you can’t rely on adultery. Nor can you rely on smooching, heavy petting, or any other type of sexual gratification which falls short of intercourse.

Hiring a private detective to “prove” adultery is most often a waste of time, money and effort

Since you can petition for divorce on an alternative fact if you do not have the evidence you need of proving adultery. Plus it’s incredibly difficult catching someone “in the act” or collecting extensive circumstantial evidence. It is far better in cases where no confession has been made and the evidence is controvertible, to use an alternative fact such as “unreasonable behaviour”.

It’s almost never a good idea naming the other man or woman (co-respondent).

The current blank, pro-forma divorce petition rolled-out by the court service has space in the petition to insert the co-respondent’s details but little good can come of availing oneself of the opportunity of “outing” the third party. Divorce practitioners have long known that this can just drag out the case and make it more expensive and vexed because you have the added burden of serving the divorce documents on the co-respondent (which is in addition to serving your spouse) and the risk of a defence or complications considerably increases since a third party is being dragged into the dispute. The clear professional guidance given to divorce lawyers as per the Family Law Protocol is not to name the co-respondent and litigants in person would do well to take heed as well.

Adultery can technically be committed even if you were separated

From your spouse sometime earlier. That said, in order to petition for divorce, you have to establish that adultery has taken place AND that you find it “intolerable” to live with your spouse.

Be mindful of time-limits…

As you are not entitled to rely on adultery committed by your spouse if you have continued to cohabit with him/her for a period, or periods, exceeding six months after you have discovered the adultery. The purpose behind this provision is to allow the parties a reasonable length of time in which to achieve a reconciliation without prejudicing the grounds for divorce. Importantly, the time begins to run when you have discovered the adultery and it is not relevant how long ago the adultery was committed. If your spouse has committed adultery on several occasions, time will not begin to run until after you have discovered the last act of adultery.

Relying on adultery does not entail a better financial outcome for you.

Put simply, the family courts are not punitive when it comes to splitting assets although there are some rare and unusual cases where the court will take into account “conduct” which is so “gross and obvious” that it would be inequitable to disregard it. Never in practice, however, have we come across a case where the court thought adultery constituted “conduct” for these purposes! Nor can the court re-distribute the assets of the third party who your spouse has been having an affair with although there are some cases where if the third party sets up home with your spouse, his or her financial means might be relevant but only indirectly.

You can’t petition for divorce based on your own adultery!

For further information on divorce and adultery, please contact the Blake Morgan Family team.