Understanding Adultery Law in the UK

Understanding Adultery Law in the UK

In the UK, adultery is one of the main things cited by divorcing couples as the reason for their separation. This begs the question, “How does the act of adultery affect one's legal rights during a divorce settlement?".

In short, it does not have as much impact as you may think, if at all, even when it comes to divorce. Until the introduction of the ‘no fault’ divorce law, which was introduced in the UK in April 2022, adultery was a valid ground for divorce, but this is no longer the case. 

As a result, separating married partners in the UK can now petition for divorce or dissolution without laying blame on the other party. Adultery can, however, in very limited scenarios, have implications on divorce financial settlements, child custody, and spousal maintenance. 

What is the definition of adultery?

The term ‘adultery’ refers to an act of voluntary sexual intercourse between a man and a woman who are not married to each other but one or both of whom is or are married.

Before 6th April 2022, adultery could be used to prove the irretrievable breakdown of a marriage in divorce proceedings. However, this is no longer the case under the no-fault divorce law. Adultery may have implications for other related legal matters, including divorce, financial settlements and child arrangements.

Is adultery illegal in the UK?

There are currently no UK adultery laws, or UK divorce laws around adultery. As we explain in Five Things You Need to Know About Divorce and The Common Pitfalls of DIY Divorce, there is only one ground for divorce in England and Wales: that the marriage has irretrievably broken down. Adultery can be cited as a reason for this, but doesn’t have to be proven the way it would before April 2022.

How can adultery affect a divorce financial settlement?

Under section 25 of the Matrimonial Causes Act 1973, divorce financial settlements are supposed to be fair and based on the income, needs and contributions of the divorcing couple, among several other factors. 

One of these other factors is “the conduct of each of the parties if that conduct is such that it would, in the opinion of the court, be inequitable to disregard it”. The reality, however, is that the act of adultery ordinarily in and of itself is not conduct which will change a divorce financial settlement. This clause is typically only applicable in the most extreme of cases involving serious assault, murder and sexual assault.  

Adultery may alter a divorce financial settlement if the divorcing parties come to an agreement between themselves that a greater share of the matrimonial assets should be offered by the person who committed adultery. 

Can adultery affect spousal maintenance?

As with divorce settlements, adultery taken in isolation does not tend to impact spousal maintenance payments. In the case of a brief marriage without children, adultery is unlikely to have a significant impact on the determination of maintenance payments. 

Likewise, if individuals in a marriage are financially self-sufficient, an extramarital affair will generally not be a factor in deciding spousal maintenance. In these cases, each spouse’s stable income can lead to the conclusion that neither party is financially dependent on the other, making maintenance less likely to be influenced by the affair.

If a spouse acknowledges a temporary affair but continues to play a primary role in managing household responsibilities, their need for financial support may still be valid. This is especially true if there is a large income gap between the spouses, as the individual may still require assistance despite the infidelity.

In situations where a spouse who filed for divorce due to infidelity enters into a new relationship, their financial situation will likely change. The combined income of the new partnership may reduce the need for spousal maintenance, as the individual’s financial situation could improve.

Finally, if someone remarries after committing adultery, they may lose their eligibility for spousal support. Remarriage often results in the ending of any previously awarded maintenance payments, as they may no longer need financial assistance from their ex-spouse.

Can adultery affect child custody arrangements?

In the UK, divorcing partners are generally encouraged to work out child custody arrangements amongst themselves. Adultery is not usually a factor in child custody arrangements, even if it’s a painful subject for the parents.

There can be exceptions to this rule if there are other factors to consider. For example,  the courts will always rule in favor of a child’s welfare and safety, so if one of the parents (or their new partner, who they may have committed adultery with) is considered a danger to the child then custody arrangements will not fall in their favour.

Other situations that may affect custody arrangements include:

• The child’s wishes (depending on their age and maturity) and relationship to the parent who cheated

• The child was exposed to inappropriate situations involving the adultery

• The parent missed important appointments for the child or rearranged the child’s life to facilitate their adultery

Regardless of whether you are the parent to perpetrate the adultery or the parent harmed by it, the main factor affecting child custody arrangements is your parenting skills, and whether the adultery has affected them.