We recently conducted a YouGov survey which found that just over half (51%) of married respondents surveyed in England and Wales thought that an extra-marital affair would be a reason to divorce their spouse. For those who face divorce following an affair, does the existence of an affair impact the outcome of divorce proceedings and financial settlements?
No fault divorce
Since April 2022, England and Wales has had no fault divorce which means that when applying for divorce, you only need to confirm that your marriage has irretrievably broken down. You don’t need to explain why the marriage has broken down. Before April 2022, you would have needed to rely on one of five ‘facts’ which included adultery or unreasonable behaviour (which would often refer to an affair if the other party didn’t admit to it) to “prove” your marriage had broken down.
As you don’t have the opportunity to include your partner’s behaviour in the divorce application, it’s becoming more common to see details about affairs appear in other legal documents, most commonly the Form E. The Form E is the document completed by both spouses to give full and frank financial disclosure to one another as the first step towards reaching a financial settlement. At the end of the Form E, there is a box in which you can give details of your partner’s ‘bad behaviour or conduct’. Though the box states that conduct will only be taken into account in very exceptional circumstances, every wronged party believes that their experience is the exceptional circumstance. We have seen spouses use this box to go into detail about their partner’s adultery.
Is adultery relevant to proceedings?
“Bad behaviour or conduct” during a marriage is only relevant in a very small number of cases. Judges are extremely reluctant to examine the reasons why a marriage has broken down and they will only take it into account if it would be very unfair to ignore it.
However, there are times when actions directly related to the adultery will be relevant to proceedings. In the case of FRB v DCA [2020] EWHC 754 (Fam), the wife told the husband that her son was biologically his, even though she knew he wasn’t. As a result, the husband became emotionally and financially invested in the child. The court decided this conduct did amount to conduct that could not be ignored and could affect the division of assets (though it didn’t in this case because the wife’s conduct was ‘cancelled out’ by the husband’s own bad behaviour).
Adultery may be relevant where it affects the financial resources of the parties. For example, where the cheating party moves in with their new partner, the new partner’s finances will also need to be disclosed during any negotiations and court proceedings to sort out the financial settlement. In some cases, this may mean that the person who has had the affair has more financial resources than the other because there is another income in the house. But in other cases, it could be counterproductive where the new partner is financially dependent on the cheating party or where there is a child living with them.
What if there are children outside of marriage?
If your ex does have an affair and goes on to have a child with that person, then they could also face further financial claims that may affect your divorce. These claims are usually made by the mother of a child who is not married to the father. As they are unmarried, the mother’s claims fall under Schedule 1 of the Children Act 1989. These claims can be brought at the same time as divorce proceedings meaning that a husband could simultaneously be divorcing and coming to a financial settlement with his wife, at the same time as having Schedule 1 proceedings brought against him from the mother of his child. These claims may be competing against each other as there are only so many resources to go around.
Even if adultery or a new relationship isn’t legally relevant, it can loom large over divorce proceedings. Understandably, the affair creates a sense of deep distrust between the parties. The disclosure process becomes more intense as the hurt party either doesn’t believe that everything is disclosed or goes through their partner’s bank statements in detail to try and discover more about the affair- hotel payments, café visits and jewellery purchases all take on new significance. Unfortunately, legal proceedings themselves can drag out the hurt and pain felt by the parties.
The affair can have devastating effects on the wronged party emotionally and psychologically. In some cases, this can be enough to affect their earning ability and they may have increased outgoings as they pay for therapeutic support. Both of which could affect the final financial settlement.
The breakdown of a relationship is difficult for all those involved, particularly where there has been adultery. Our lawyers are empathic and are here to listen to your situation. We will be able to advise you on whether conduct may be relevant in your case.
All figures, unless otherwise stated, are from YouGov Plc. Total sample size was 2004 adults, of which 809 are married in England and Wales. Fieldwork was undertaken between 19th - 22nd January 2024. The survey was carried out online. The figures have been weighted and are representative of all GB adults (aged 18+).
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