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Effect of Adultery on Divorce and Residence Orders

Adultery is one of the five main grounds for divorce in England and Wales. Adultery and unreasonable behaviour are the only two grounds for immediate divorce; there are long procedural delays involved when divorce petitions are presented on the basis of the other three grounds for divorce: desertion for at minimum of two years, separation with consent for two years or separation without consent for five years.

A divorce can be granted if it is proven that one partner in a marriage has had an affair and committed adultery, defined as having had sexual intercourse with a person of the opposite sex other than their spouse, and if the spouse finds it intolerable for the marriage to continue. For a divorce to be granted on these grounds, the divorce petition must be filed within six months of the adulterous affair having taken place or within six months of the most recent act of adultery if it has been committed on more than one occasion. If the petition is not filed within the time period, the spouse is regarded as having accepted the adulterous affair. However, the six month time limit only applies to couples who continue living together after the adultery has been discovered, it is not applicable if they have already separated.

When applying for divorce on grounds of adultery, it is necessary to provide the courts with as much evidence as possible about the alleged adulterous affair, such as places and dates. If the partner who has had the affair or affairs does not contest the divorce, then it will usually be granted with little difficulty. However, if the divorce is contested, detailed evidence will be required to satisfy the courts that the affair actually occurred, and the process may be lengthy and expensive. It is not necessary to name the ‘co-respondent’ – the person with whom the adulterous affair took place - and many lawyers advise against doing so as it may cause unnecessary delay and additional expense if the co-respondent contests the petition. There is often little reason for a co-respondent to cooperate, particularly as they may be ordered to pay a portion of the court costs if a divorce is granted.

The person that commits the adulterous affair cannot petition for a divorce themselves, it is only their spouse who can submit the application. However, in some cases where the adulterous partner wishes to remarry, they have cited the “unreasonable behaviour’’ of their spouse as grounds for divorce. It is then up to the courts to decide whether there is sufficient evidence of unreasonable behaviour.

Courts are no longer required under UK law to issue residence orders for the children of divorced couples in England and Wales, unless it is deemed that this would be in the best interest of the children concerned. However, under the 1991 Children’s Act, courts considering divorce petitions will consider whether satisfactory arrangements have been made for the custody and support of any children aged under 16-years-old. If the court is not satisfied that this is the case, they will order a report to be prepared on the children’s welfare, and will issue residence orders based on the findings of this report. The decree absolute will not be issued until these orders are issued.

In considering the best arrangements for the children of a divorced couple, the courts do not take into account the conduct of the person whose behaviour led to the divorce petition being filed, unless there is a very good reason why it would be unreasonable not to consider it. In issuing residence orders, therefore, the courts do not generally take into account adulterous affairs when deciding which partner the children should live with.