Can you Cite your own Adultery when Divorcing your Spouse?

When filing for a divorce, it is necessary to prove that the marriage has irretrievably broken down. In order to do this, one of five reasons for this breakdown must be cited. These are:

• Two-year separation with consent;
• Five-year separation;
• Desertion;
• Unreasonable behaviour; and
• Adultery

Of these reasons, both of the non-fault-based (separation) grounds are straightforward and are reliant on no facts other than the date of separation; desertion is, due to complexities, rarely used and utilising unreasonable behaviour is, thanks to the courts willingness to accept a wide variety of examples, easier than you might think. There are, however, a number of misunderstandings regarding adultery that, at times, make the task of obtaining a divorce on this grounds problematic.

A spouse that partook in sexual activity with someone of the same sex would not be engaging in adultery in the eyes of the law, for example. Even if they were to engage in sexual activity with a member of the opposite sex, it’s only legally considered to be adultery if this included intercourse. In our experience, though, the most common myth concerning adultery-based divorce is that the party that applies for the divorce (known as the Petitioner) can rely on their own adultery.

Why you can’t rely on your adultery

Whatever reason is stated as being behind the irretrievable breakdown of the marriage, it is automatically deemed to be why the Petitioner now finds it intolerable to live with their spouse. As a result, should someone cite their own adultery, they essentially claim that their infidelity has led to them finding it intolerable to remain with their spouse – the courts simply will not accept this.

Alternatives to adultery

If you intended to rely on your own adultery when requesting that the courts grant you a divorce, there are two clear alternatives: rely on unreasonable behaviour or let your spouse file for a divorce reliant on your adultery.

Should I accept fault in divorce proceedings?

Contrary to popular belief, should a spouse accept any examples cited in a Divorce Petition relying on a fault-based ground as true, they will not then be forced to pay court fees, subjected to less favourable treatment when they separate their assets or be denied access to their children.

In truth, the courts recognise that, whilst one spouse may be accepting that they’re at fault, this does not mean they, alone, are exclusively to blame for the marriage and the grounds have no bearing on matters as a result.