What is adultery?

Posted by Rachel Giles, 27th February 2019
We often discuss interesting and unusual points within our team, and recently a member of the team raised a query about adultery, defined in the dictionary as ‘voluntary sexual intercourse between a married person and a person who is not their spouse’. We were quick to point out that this is only available to opposite sex couples, however, some research quickly showed that this may not actually be the case.

It is true to say that the definition of adultery concerns a man and a woman, and this has been confirmed in statute. However, the research we carried out shows that it is not as simple as that.

On divorce, adultery is one of the five facts that can currently be relied upon to support the ground that the marriage has broken down irretrievably, if the innocent spouse finds it intolerable to live with their spouse, and he or she does not continue to live with her or him for more than six months after discovering the adultery. When a civil partnership is dissolved, adultery is not one of the facts that can be relied upon.

Given that same sex marriage is now permitted in England and Wales, it looks to be possible for same sex partners to rely on adultery if they are married, provided that the extra marital affair was with a person of the opposite sex.

There is clearly a disparity between the two regimes therefore, in that only marriages, whether same sex or otherwise, can be ended by relying on adultery. This is despite the legal definition of adultery confirming that it is between a man and a woman. If a civil partner believes that their partner has committed adultery (with a member of the opposite sex) this can be referred to as a particular of unreasonable behaviour. If a party to a marriage or a civil partnership believes that their partner has had an extra-marital affair with a person of the same sex, again, this can only be relied upon as a particular of unreasonable behaviour.

This may become irrelevant if proposed changes to divorce are finalised. This would seek to remove the need to allege “fault” to proceed with a divorce or dissolution. Speak to our Family Lawyers for expert advice.

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