5 Jul 2019Read more
When a new client comes into our offices, it's not unusual for them to be extremely upset as their marriage has broken down because their other half has found someone else and wants to start their life afresh with them. Sometimes that new client wants "revenge" and sees the possibility of punishing, financially, their soon-to-be-ex-spouse through the ensuing divorce.
In fact, one of the most common assumptions around divorce is that there will be a financial impact if one partner has had an affair and left the marriage as a result. But this rarely makes any difference to the overall division of assets, because when it comes to money, by and large the court is not interested in why the marriage is ending, but rather what resources each party has available, and how they are to be divided fairly.
No, it doesn't. It is one of the myths around divorce that the unfaithful party should be treated more harshly, but a marriage breaks down for many reasons and is rarely attributable only to one person's actions. There may be multiple problems already present in the relationship which has led one party to commit adultery, and judges understand this. In the eyes of the Court, determining how the matrimonial assets should be divided is based entirely on fairness.
In practice, this means that should you commit adultery and this is the cause of the irretrievable breakdown of the marriage, you are unlikely to receive a less favourable financial outcome because of this, nor will the person who did not commit adultery achieve a more favourable one.
The Court is under a duty to consider all the circumstances of the case and in particular the Section 25 Factors, and apply these to the facts of the particular case. The starting point when it comes to division of assets is 50/50 and the court is able to apply an element of discretion as to the award. No two cases are identical.
It's also worth bearing in mind that adultery in and of itself is not quite enough from a legal perspective to sue for divorce. If you want to divorce your spouse on the grounds of adultery, you must also state that you find it "intolerable" to continue living with your spouse. Ask yourself if the adultery is the sole reason for that situation. It may only be the last, the very final, stage in the collapse of the marriage.
Finally, here's something worth bearing in mind. There is a six month time limit from finding out about the adultery - wait any longer than that to petition for divorce, and the family courts will take it as read that you didn't find the adultery intolerable at all. And despite television programmes and films encouraging us all to think you have to obtain proof of adultery and be able to name the other person, you don't. If your spouse won't admit the adultery, then you can proceed on the basis of unreasonable behaviour instead.
Remember: no matter how betrayed, or how guilty, you feel, infidelity is not against the law and the courts are not there to judge you and your marriage. They are there to try and reach as fair an outcome as possible and to ensure the welfare of any children you have with your soon-to-be-ex. It's different if truly appalling behaviour has taken place - domestic violence for example - but thankfully such extremes do not affect most divorcing couples.
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