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Home > UK > Family and Matrimonial
Expatriate Law

UK: What Is Adultery? The Law Explained

Last Updated: 4 January 2018

Article by Alexandra Tribe

Expatriate Law

This article was authored by
Alexandra Tribe .

It is a common misconception that adultery is a
ground for divorce in and of itself. This is not actually the
case. There is only one ground for a divorce, and that is that the
marriage has irretrievably broken down. However, the court cannot
make a finding of
irretrievable breakdown unless it is satisfied that one of five
facts has been proved.

Those five facts are:

  1. the respondent has committed adultery and the petitioner finds
    it intolerable to live with the respondent;
  2. the respondent has behaved in such a way that the petitioner
    cannot reasonably be expected to live with the respondent;
  3. the respondent has deserted the petitioner for a continuous
    period of at least two years immediately preceding the presentation
    of the petition;
  4. the parties have lived apart for a continuous period of at
    least two years immediately preceding the presentation of the
    petition and the respondent consents to a decree being granted;
    and
  5. the parties have lived apart for a continuous period of at
    least five years immediately preceding the presentation of the
    petition.

Where the cause is undefended, the court will generally accept
the statements in the petition and will not question that the
marriage has irretrievably broken down. Whereas if the respondent
defends the petition, the court will then inquire as to the
truthfulness of the allegations and seek proof.

The fact of adultery

When relying on the fact of adultery, the person applying for
the divorce (known as the petitioner) has to show two things:

  1. That their spouse (known as the respondent) has
    committed adultery; AND

Definition of adultery in the context of a petition
for divorce:
the voluntary sexual intercourse
between a man and a woman who are not married to each other but at
least one of whom is a married person.

Despite the evolution of our laws in recent years to recognise
same sex marriages, at present this has not been extended into our
divorce laws.� The law states that only conduct between the
respondent and a person of the opposite sex may constitute adultery
for the purposes of�divorce.

Sexual intercourse is required, attempts to commit adultery do
not amount to adultery, but may be pleaded as unreasonable
behaviour in the context of an ‘improper association’.

Adultery must be consensual. Once sexual intercourse is proven,
the onus is on the respondent to show that it was not consensual if
that is the case.

  1. That the petitioner finds it intolerable to live with
    the respondent as a result of the adultery.

This second aspect is extremely important as simply proving that
the respondent has committed adultery is not sufficient to satisfy
the test of irretrievable breakdown of the marriage. The petitioner
must find it intolerable to continue living with the respondent as
a result of the adultery.

If the petitioner continues to live with the respondent for more
than 6 months after becoming aware of the adultery, then the
petitioner is no longer able to rely on this fact. As an
alternative, the petitioner would need to petition for divorce
using the fact of unreasonable behaviour. If the parties continue
to live together for an aggregated period of less than 6 months,
then this will be disregarded and the petition for divorce will be
allowed to proceed.

For this purpose, adultery refers to one act of adultery.
Therefore, where the adultery continues, time will not run until
the last act of adultery. The petitioner must have knowledge of the
adultery; mere suspicion is not enough.

The Third Party

Discovering that your spouse has committed adultery is
understandably a very difficult time and it is quite natural to
place an element of blame on the person with whom the respondent
had the affair. Despite this, it is common practice and it is
strongly advised that the third party should not be named in the
divorce petition, unless the petitioner believes the respondent is
likely to defend the proceedings. Where it is necessary to name the
person with whom it is alleged that the respondent has committed
adultery, that named person will be the co-respondent.

Beware of Costs

In divorce proceedings, it is not guaranteed that the respondent
will pay for the
costs �incurred. This is something which the petitioner has
to apply for, and will not always be granted. However, when relying
on a “fault based” fact to support the ground for
divorce, i.e. adultery, unreasonable behaviour or desertion, then
in practice it is usual for district judges to consider making an
order for costs in favour of a successful petitioner. It is worth
noting though, that this can be displaced by objections from the
respondent to show that such an order would be unfair.

The content of this article is intended to provide a general
guide to the subject matter. Specialist advice should be sought
about your specific circumstances. For any further queries or
follow up please contact Expatriate Law at
[email protected]

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