When you are getting divorced because either you or your spouse has had an affair it is often assumed that the innocent party should get a better divorce financial settlement than the guilty party because as the separation is down to adultery the guilty spouse should pay up. That isn’t how UK divorce law works.
As a family law solicitor, I represent divorcing couples trying to reach divorce financial settlements. Often one of the major barriers to agreeing on a division of property and assets after a divorce is the emotional fall-out from the separation and the anger and hurt adultery creates. Those emotions can make you feel that your ex needs to be punished and that the best way to achieve that is by punishing them financially.
For divorce and family law advice call Angelique Holm on 0203 488 8620 or email
info@hopeholm.co.uk or visit our website Hopeholm Family Law.
What is adultery?
You may think that the definition of adultery is obvious but, from a family law perspective, adultery is defined asintercourse between a man and a woman. Sexual relations with a member of the same sex aren’t classed as adultery.
Some think that a relationship is only viewed as adultery if the spouse was living with their husband or wife when they began their affair. That isn’t correct. An affair is defined as adultery even if the adulterous relationship started after the separation from your husband or wife or after one of you decided to start divorce proceedings. An affair only stops being legally classed as ‘adultery’ once you are divorced with a final order of divorce.
People’s reactions to learning about adultery can be very different depending on whether they already knew their marriage was in trouble or the circumstances in which they learned about the new relationship or the identity of the ‘third person’.
Sometimes people are very upset or angry about an affair even though the decision had already been taken to separate before the affair started. That can be because the person is frightened about their own financial future or does not like the thought of another person trying to take their place as mum or dad to their child.
Adultery and the family court
The family court will normally not investigate the reasons why a marriage has broken down when deciding on an appropriate financial court order or when deciding on child custody and contact and making a child arrangement order. That’s because the court makes financial decisions after assessing a range of statutory factors, including needs, and makes children law decisions based on the child’s welfare and best interests.
UK divorce law emphasised that it does not look into the reasons for the marriage breakdown by moving to no-fault divorce proceedings. It is now no longer necessary to say that your husband or wife committed adultery or behaved unreasonably to get divorced. The change occurred because Parliament wanted to take the acrimony out of divorce proceedings.
There are rare scenarios when the family court may be persuaded to look at the reasons for the marriage breakdown but the court is always wary of doing so because of the cost consequences to both husband and wife in spending time analysing the reasons for the separation. That’s because things are not always clear-cut. For example, a spouse may say they had an affair but it was down to their spouse’s unreasonable behaviour or because their spouse had an affair years earlier. Spending time on lawyers’ fees to work out the reasons for a marriage breakdown is rarely productive.
Instead, family lawyers recommend that the focus of any child arrangement order or divorce financial settlement proceedings is the child’s needs and relevant financial considerations, such as housing needs, earnings capacity, pension needs, or contributions to the marriage.
Does adultery ever affect a divorce financial settlement?
There are times when the fact that someone had an affair and is in a new relationship may be of relevance to the divorce financial settlement. A one-night stand or a short-term affair will not be relevant in the vast majority of divorce financial settlement court proceedings but a relationship may be relevant to:
- Whether spousal maintenance should be paid – if the husband or wife is cohabiting then their partner should be contributing to their household expenses so there is no need or reduced need to receive spousal maintenance payments. Family law disputes can often centre on whether a relationship is ongoing or not or if a couple are living together or in a casual relationship
- Whether the party who is in a new relationship and living with their partner has an immediate housing need. For example, whether it is appropriate for the sale of the family home to be delayed until the youngest child finishes secondary education as the non-custodial parent is living with their new partner in settled accommodation
- Whether any spousal maintenance claim should be capitalised. That is less likely if the spouse claiming spousal maintenance has a new partner
If you are uncertain about whether adultery will affect a divorce financial settlement then the best option is to take early specialist legal advice so you know where you stand so you are better able to reach a negotiated divorce financial settlement.
For advice on divorce proceedings and resolving family law disputes advice call Angelique Holm on 0203 488 8620 or email info@hopeholm.co.uk or visit our website Hopeholm Family Law.