Under the law in the UK, adultery or infidelity is not a crime, and it is no longer a ground for divorce under the no-fault divorce legislation, which came into force in April 2022. Both of these facts mean that a person who commits adultery in the UK will not face legal action, be sued, or have this used against them as a reason for divorce.
Prior to 6th April 2022, adultery was one of five grounds for divorce; the others being unreasonable behaviour, desertion, two years separation, and five years separation without consent. Adultery was removed as a ground for divorce in 2022 because it was sometimes difficult to prove and to stop one party blaming the other for the divorce. As a result, removing the need for one party to blame the other has taken away some of the anger and resentment felt during the divorce process.
What are my rights if my husband or wife cheats in the UK?
If your husband or wife has cheated on you, while you cannot sue or take legal action for adultery in the UK, it is still within your rights to file a divorce. In doing so, you can seek a division of your financial assets and make arrangements for your children. Child arrangements include who your child will live with and who they will spend time with, including where and when. A financial settlement will set out how your marital assets will be divided, including any:
- Pensions
- Properties
- Shares and investments
- Savings
From the perspective of the courts in England and Wales, it is always preferable for both parties to come to a mutual agreement on finances and child arrangements. In most cases, the courts will only consider taking on a case once both couples have attempted to come to an agreement between themselves or with help in the form of mediation.
However, the challenge, for those whose lives have been affected by adultery is that communication with and trust of the other party may have already broken down, meaning they cannot reach an agreement on finances and children. For this reason, a court order may be necessary to resolve the matter and reach an agreement on who gets what. This is where the help of a family and divorce solicitor proves invaluable. We will listen to your circumstances, explain your legal rights and options, and handle your case on your behalf, allowing you to focus on your own needs and those of your children.
Does adultery affect divorce settlement in the UK?
It is a common misconception that adultery can affect divorce settlements, but this is not the case. The courts treat divorces involving adultery in the same way as any other divorce and start from the position of splitting assets equally. The factors that determine the exact division of assets by the court are set out in Section 25 of the Matrimonial Causes Act 1973 and include the:
- Needs and welfare of the children
- Income, earning capacity, property, and other financial resources of both parties now and in the future
- Current and future financial needs
- Standards of living before marriage breakdown
- Age of both parties
- Length of the marriage
- Contribution to family welfare
- Loss of benefits
- Conduct of both parties
When it comes to the conduct of both parties, “bad behaviour” will only be considered by the courts in the most extreme cases (e.g. domestic violence, failure to make full financial disclosure, and financial risk-taking due to gambling, etc.). The law states that conduct will only be a factor in a financial settlement “if that conduct is such that it would, in the opinion of the court, be inequitable to disregard it”. As far as the courts are concerned, conduct such as adultery will not usually affect a financial settlement following a divorce.
While the courts will normally not take adultery into account when making decisions on financial settlements, each case is different. This is why it is important to instruct a divorce lawyer who can advise you based on your exact circumstances and recommend a course of action to achieve the best possible outcome.
Does adultery affect child custody in the UK?
In most cases, adultery will not have an impact on child custody (i.e. child arrangements) decisions made by the courts. However, adultery may affect child arrangements where it can be shown that the child’s welfare has or will be affected because of the adultery. For example, this may be the case if:
- Child was exposed to inappropriate situations because of the affair or adultery
- New partner will bring a harmful environment to the child
- Parent missed an important appointment for the child because of their adultery (e.g. a doctor’s appointment), or the
- Parent rearranged the child’s life to facilitate their adultery
Who pays for a divorce if it ends in adultery?
Adultery has no impact on who pays for a divorce. There are two main costs of divorce – the application fee and any legal fees payable if legal advice is sought. If one person applies for divorce, it is their responsibility to pay the government application fee of £593. If a joint application is made, one party must still pay the application fee. It is then up to them to come to an arrangement with the other party to split this cost. Each person is responsible for paying their own legal fees.
