Adultery – What Constitutes Adultery?

In this article, I want to write about what it is that constitutes adultery.

In order to divorce your spouse, under the laws in England and Wales, the Petitioner must prove irretrievable breakdown plus one of the five facts of which one is adultery. The others are:

• Unreasonable Behaviour
• Desertion for two years
• Separation for two years with the consent of the Respondent to divorce
• Separation for five years whether the Respondent consents or not.

The definition of adultery under our law is: One party to a marriage having sexual intercourse with a member of the opposite sex and that party cannot continue to live with them. The adultery must have been in the last six months, (if you still live together) otherwise the adultery has been ‘condoned’.

Interestingly, even if the parties have been separated for a long period, say ten years, and haven’t divorced, should one spouse commence a relationship with a member of the opposite sex, the other spouse can cite adultery and divorce on this basis. Many people are shocked by this, but remember those people are still married, aren’t they? Despite so much progress with regard to equality in recent years, and the introduction of same-sex marriage into our jurisdiction, there is an apparent anomaly. The grounds for a divorce in same-sex marriage are the same as above, but that means this: In a gay divorce, one party can only cite adultery if the other has cheated with a ‘person of the opposite sex’.

Interestingly, in a recent Canadian case, a judge was faced with the same dilemma and decided that the definition and the law should apply to same-sex marriage. Many other jurisdictions consider that adultery should apply in same-sex marriage as it does in heterosexual marriage. Cheating is cheating. Under Muslim law, adultery is sexual intercourse by a person (whether man or woman) with someone to whom they are not married.

Is the way ahead then that adultery, whether in heterosexual marriage or same-sex marriage, should be defined as ‘sexual relations’  (as Clinton famously said) with another person, whether male or female?

If you are petitioning for divorce, contact us here.