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West Midlands Police Federation

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Still married, but with a new partner? How this could affect your divorce

21 January 2019

Situations involving divorce are hardly ever straightforward. One of the main sticking points is how the process will be started, who’ll petition for divorce and what fact will be relied on to prove the marriage has irretrievably broken down?

Adultery as a reason for divorce

A fact that’s commonly relied upon to initiate divorce proceedings is adultery. In most cases, adultery’s admitted by the other spouse. If the other spouse isn’t willing to admit to adultery, it can be difficult to prove. There may be evidence of the infidelity in the form of messages, social media or from one partner catching the other in the act.

The law defines adultery as sexual intercourse between a man and a woman. The law doesn’t provide for adultery to be relied upon as a reason to dissolve the marriage or civil partnership in a same sex relationship. You cannot rely on adultery if you’ve lived with your spouse for six months after you found out about it.

What constitutes adultery?

If a married couple are together, living in the same house and one is unfaithful to the other, this is a clear-cut case of adultery. However, things can seem more complicated if the couple have separated but are still legally married.
We’re often asked, if being in a sexual relationship with someone else after separating from a spouse, can constitute adultery. The simple answer to this question is yes. In the eyes of the law, you’re still married to your spouse.

Divorce settlements

People often mistakenly believe that a court will be more likely to award settlements in favour of the person petitioning for divorce on the basis of adultery. This isn’t the case, as the court doesn’t pass any kind of moral judgement when deciding how to divide the matrimonial pot.

If you’d like specialist advice from a family lawyer please contact Slater and Gordon on 0808 175 7710 and we’ll be happy to help.

Joanne Green
Principal Lawyer in Family Law at Slater and Gordon


September 2020