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Why it's a lot harder than you think to prove adultery

Long-awaited law reforms are set to finally put an end to years of confusion and bitterness by those seeking a divorce on the grounds of adultery.

Currently in England and Wales, a divorce can only be obtained when a marriage has irretrievably broken down and this must be proven by setting out one of five specific facts in the divorce petition.

Adultery is one the five facts and most people believe it’s a black and white matter – their husband or wife has been unfaithful, end of story.

But satisfying a court that adultery has taken place is actually very difficult if the husband or wife in question does not admit it.

Donna Sandall, principal at Donna Sandall Family Law, based at the Darlington Arena, explains all.

She said: “Frequently clients come to see me seeking a divorce after they discover their husband or wife has been having an affair. They may have stumbled upon text messages, emails, social media posts or photos which they believe prove adultery. To them, it’s beyond doubt - but it’s not that simple.

“Adultery is defined in law as your spouse having sexual intercourse with a member of the opposite sex. Proving he or she did so is very difficult. Even the messages which people believe are rock-solid proof are unlikely to be enough evidence for the court to accept the divorce application.

“This can cause a lot of anger. Many of those seeking a divorce want their spouse to be named and shamed as an adulterer. They may want to also name the person with whom they have been unfaithful. They want the court to know exactly who is to blame for the breakdown of the marriage.

“But the truth is, the reason for divorce is never made public, and nobody other than the court and the other side will ever see the paperwork. Naming the co-respondent (the adulterer) can slow down the court proceedings as they will be sent documents and asked to respond, which they may not want to do.”

Donna added that is a commonly-held, but incorrect, belief that if a spouse has committed adultery the other party will be entitled to a higher share of the divorce settlement.

She said: “In reality, the grounds for divorce are never taken into account when deciding who gets what in a financial order. You would not be entitled to a larger settlement, although any new partner’s means might be of interest when considering a spouse’s finances post-divorce.”

Those seeking a divorce on the grounds of adultery must do so within six months of discovering their spouse has been unfaithful.

Also, adultery does not cover all sexual activity, only intercourse with a member of the opposite sex. Secretly meeting up, holding hands, kissing, or ‘sexting’ activities online do not meet the definition. Being unfaithful and having sex, outside of the marriage, with a member of the same sex is also not considered adultery in the eyes of the law.

If adultery cannot be proven, there are alternative facts which can relied upon instead – the most common in this situation being ‘unreasonable behaviour’, which does not require proof of a physical act having taken place. The test is a subjective one – does that person feel the behaviour of their spouse is unreasonable?

Divorce laws in England and Wales are to be radically overhauled this autumn when The Divorce, Dissolution and Separation Bill is enacted.

New laws will spare divorcing couples from having to apportion blame for the breakdown of their marriage – and instead allow a spouse, or a couple, to apply for divorce by making a statement of irretrievable breakdown.

They will also stop one partner contesting a divorce if the other wants one – which in some cases has allowed domestic abusers to exercise coercive control over their victim.

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