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Myth no 6: Adultery, separation, child and financial array

The question of what constitutes adultery, and whether it impacts on child and financial arrangements, is not as clear cut as the uninitiated may think. Many people would consider that any extra-marital relationship is adulterous, and that the fact of an extra marital relationship puts the wronged party add an advantage in terms of child and financial arrangements. In fact, the legal definition of adultery is very narrow, and in most cases, adultery confers no benefit to the wronged party in terms of the legal aspects of divorce.

The law says that a relationship is only adulterous if it is between a man and a woman who are not married to each other, where at least one party is married to someone else, where sexual intercourse has taken place. This means that if your spouse has a relationship with someone else of the same sex; or had a relationship where no sexual intercourse has occurred, then you cannot start a divorce on the grounds of adultery. If you discover that your partner had an adulterous relationship but you reconciled for more than six months after its termination, you cannot rely on the fact of the adulterous relationship to commence divorce proceedings. In any of these scenarios, the correct ground is unreasonable behaviour.

Some people think that if you are separated but not divorced you are free to commence a new relationship. But the law says you are married to your spouse until the pronouncement of Decree Absolute and so any relationship meeting the technical definition of adultery which commences after separation can be relied upon as a reason for divorce. However, under the current system you cannot bring divorce proceedings based on your own unreasonable behaviour or adultery.

It is a common misconception that a spouse’s adultery has some bearing on arrangements for children and financial settlements. In child arrangements matters, the Court will only consider the reasons for the divorce if those reasons have a direct bearing on the welfare of the children and/or the parent’s ability to look after the children. Adultery will only be relevant to a financial settlement where the adulterer cohabits with his or her new partner and then only where that cohabitation has a direct impact on the financial circumstances of the case. All financial settlements are dependent on the personal and financial circumstances in which the parties find themselves, and each case turns on its own facts.

The family team at SNS can help you with your divorce, children, and financial questions. We know that making the decision to start divorce proceedings is difficult. We will listen to what you want, advise you clearly and give you support and guidance through your divorce.

If you wish to speak with one of our specialist solicitors in confidence please contact us on 01622 23 88 50, or at

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