Impact of Adultery on Divorce
Discovering that your spouse has been unfaithful is one of the most distressing experiences a person can face. Alongside the emotional impact, many people want to understand what adultery means legally, whether it affects divorce, and what impact it may have on finances and children.
In England and Wales, adultery has a specific legal definition. It means voluntary sexual intercourse between a married person and a person of the opposite sex who is not their spouse. This definition, which derives from case law developed under the Matrimonial Causes Act 1973, means that a same-sex affair does not constitute adultery in the legal sense.
In practical terms, this means that not all forms of infidelity are considered ‘adultery’ in the legal sense, even if they would commonly be described as such.
Since April 2022, the Divorce, Dissolution and Separation Act 2020 introduced no-fault divorce in England and Wales. This means that either spouse, or both jointly, can apply for a divorce simply by stating that the marriage has broken down irreversibly. There is no longer any need to cite a reason such as adultery or unreasonable behaviour.
As a result, adultery has become largely irrelevant to the divorce process itself. The no-fault route seeks to reduce conflict and avoids the need to apportion blame. If you are considering your options, our page on divorce and separation explains the current process in more detail.
This is the question most often asked by clients who have been cheated on, and the answer is one that can come as a surprise: in the vast majority of cases, adultery has no bearing on the financial settlement.
When dividing finances on divorce, the court applies the factors set out in section 25 of the Matrimonial Causes Act 1973. These focus on the financial needs, resources and contributions of each party, the length of the marriage, and the welfare of any children. Conduct, including adultery, is only considered if it would be ‘inequitable to disregard it’, which the courts have consistently interpreted as a very high threshold.
In practice, this means that an emotional or sexual affair, however devastating personally, will rarely affect how the matrimonial assets are divided. The court is not concerned with punishing a guilty party or rewarding the innocent one. If you want to understand more about how finances are dealt with on divorce, our guide to financial issues on divorce is a helpful starting point.
While adultery alone will not alter a financial outcome, conduct that goes beyond the affair itself may be relevant in exceptional circumstances. Examples that courts have considered include:
Even in these cases, the conduct complained of must cross a high bar before a court will adjust a financial award on account of it. It is important to take specialist legal advice if you believe your spouse’s conduct, financial or otherwise, may be relevant to your case.
In the same way as finances, adultery will not affect arrangements for children. The court’s paramount concern in any children matter is the welfare of the child, and the fact that a parent has had an affair is not, in itself, relevant to their ability to parent. Unless the conduct complained of has directly harmed or risks harming a child, the courts will not take it into account when making decisions about where a child lives or how they spend time with each parent.
If you have concerns about how separation will affect your children, our children and separation pages set out the options available to families, including family mediation and collaborative law as alternatives to court proceedings.
Understandably, adultery can significantly affect the emotional landscape of the process. The anger, grief and sense of betrayal that often accompany infidelity can make it harder to negotiate calmly and can increase conflict, which ultimately costs more, financially and emotionally, for both parties.
At Family Law Partners, we work with clients to find the most constructive path forward, whether that’s through mediation, collaborative law, solicitor-led negotiation, or court proceedings where necessary. We also work alongside counsellors and therapists who can provide emotional support alongside your legal advice.
Whether adultery is a factor in your separation or not, understanding your legal position is an important first step. Our specialist divorce solicitors can advise you on every aspect of the process, from the divorce application itself through to the financial settlement and any arrangements for your children.
You can also download our free guide to divorce and separation for a clear, practical overview of the process from start to finish. If you would like to speak with a member of our team, please get in touch.
Charlotte Plowman is a Senior Associate and Mediator in our Horsham Office.