How Does Adultery Affect Divorce Financial Settlements?
When you are separating from your husband or wife you may have questions about the impact of adultery on your marriage breakdown and financial settlement. That’s often the case whether you have discovered that your spouse has formed a new relationship or you are the person who has met a new partner.
It is natural to have family law questions and our specialist family lawyers are here to offer guidance on divorce proceedings and financial settlements and the impact of adultery.
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Adultery and divorce proceedings
In England, divorce proceedings can no longer be started on the basis of adultery. That’s because the government has introduced no-fault divorce proceedings. You can no longer say you are applying for a divorce based on adultery or unreasonable behaviour or separation after 2 or 5 years. Instead, all you now need to do is file an application for a divorce without giving a reason for the marriage breakdown.
The idea behind the divorce law reform is to make divorce proceedings less acrimonious and to avoid the ‘blame game’ where divorce proceedings were started on the basis of adultery but the husband or wife receiving the divorce application felt aggrieved because, for example, they maintained the adultery only occurred after the relationship ended or because of their spouse’s unreasonable behaviour.
The intention is that by taking the blame out of divorce proceedings it will be easier for couples to reach an agreement on child custody and contact or resolving their divorce financial settlement because they will not be engaged in acrimonious divorce proceedings.
In no-fault divorce proceedings, you can now either apply jointly for a divorce with your husband or wife or you can apply for a divorce as a single applicant. As the fault has been taken out of the divorce process there are only very limited grounds to oppose a divorce application.
If you are thinking about starting divorce proceedings it is still best to talk to a family solicitor before you start the court application. They may suggest that it is in your interests to start the divorce proceedings now or to delay the application. They can also guide you through the no-fault divorce application process.
Adultery and the effect on divorce financial settlements
If your husband or wife has committed adultery you may think that you are entitled to more of the family assets as you did not want the separation or the divorce. If you are the spouse who formed a new relationship you may be feeling very guilty and wanting to agree on a divorce financial settlement because you feel bad about leaving your spouse.
Whatever your situation or your feelings, an experienced family law solicitor can help you negotiate a fair divorce financial settlement that can be submitted to the court as a draft financial court order for approval by a family judge. If you cannot reach an agreement then you or your estranged husband or wife can apply to the court for a family law judge to decide what financial settlement is appropriate and the judge can make a financial court order after a contested court hearing.
Sometimes it can be harder to reach a divorce financial settlement when adultery has taken place, even in situations where the adultery occurred months or years after the marriage breakdown. That is not surprising as emotions and feelings of loss or hurt can take over. Alternatively, feelings of overwhelming guilt can make you want to give your ex everything because you were the one who ‘wanted out’.
In many situations, the fact that adultery took place will not have a significant impact on the divorce financial settlement but as every family situation is different it is best to talk to a family law solicitor about your situation and about how adultery may affect your divorce financial settlement. For example, if you know that your ex is very angry and therefore refusing to go to family mediation or provide financial disclosure your only option may be to start divorce financial settlement court proceedings so the court is able to timetable and decide your financial application.
Adultery and spousal maintenance
Adultery may not have an impact on your divorce financial settlement and spousal maintenance. It all depends on your circumstances. For example:
- You had a short marriage without children – you may not have received spousal maintenance in any event, irrespective of whether adultery took place
- You both have good jobs – if you both earn similar amounts or both have good earnings capacities it is unlikely spousal maintenance would be ordered
- You have committed adultery but it was a fling and you are a stay-at-home parent – you may need spousal maintenance to help you meet your bills and the fact that adultery occurred will not impact on your need for spousal maintenance to help you pay the bills and afford a home to live in
- You committed adultery and are now in a long-term relationship with a new partner – this may affect spousal maintenance as if your partner is working as well then they can share bills so your need for spousal maintenance will not be as great Alternatively you will have more disposable income to be able to afford to pay spousal maintenance to your ex-husband or ex-wife who may have a lower earnings capacity than you do or higher outgoings because of child care costs
- You committed adultery and you have remarried – if you remarry you cannot apply for spousal maintenance even if your financial circumstances are not as good as those of your former husband or wife. If the court ordered that you receive spousal maintenance then the payments will automatically stop on your re-marriage
Adultery and the family home
If your ex committed adultery you may think that they lost all legal rights to the family home but that is not the case. Even if they are now living with their new partner there is no guarantee that the relationship will continue or that they will not need to rehouse themselves. You therefore cannot assume that because of adultery a spouse will not end up with the family home or a share of the equity in it.
How relevant adultery is to the family home and your divorce financial settlement all depends on your individual family situation so that is why it is best to take family law legal advice tailored to your circumstances and needs.
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