Families and divorce

Adultery in divorce settlements

Wedding cake with the wife and groom facing away from each other

Before 6 April 2022, a person wishing to apply for a divorce had to explain to the court the basis of the breakdown of their marriage by referring to one of five ‘facts’, which included, adultery.  And in other petitions (applications for divorce), based on the fact of ‘unreasonable behaviour’, an applicant could mention that their spouse had had an affair, or even that they suspected as much…

But that’s changed with the introduction of ‘no fault’ divorce which came in on 6 April 2022.  Now applications for divorce need only confirm that the marriage has broken down irretrievably, not why.

However, some divorces based on adultery (or unreasonable behaviour) started before the rules changed are still ongoing.

Does adultery affect the divorce settlement?

It’s understandable that a spouse who feels wronged – because their husband or wife had an affair or behaved unreasonably in some other way – might feel that they should be entitled to a more favourable financial settlement on divorce and/or that the court should look more sympathetically on them.

But this is a common misconception. In nearly all cases, the reasons for the divorce are not relevant when deciding how the marital assets should be divided or what financial support should continue.

The court doesn’t look to apportion blame or penalise either party, save in very unusual circumstances. The Matrimonial Causes Act 1973 sets out the criteria that are to be used when determining how the couple’s assets should be dealt with (in the absence of an agreement), and what the terms of their financial settlement should be.

So, it’s highly unlikely that the court will take adultery into account when making a decision regarding the financial aspects of the marriage. If you filed for divorce because of adultery, you should not expect to receive a more favourable settlement as a consequence. 

The fact that behaviour isn’t a deciding factor when making a financial settlement should discourage spouses from contesting divorce applications on the grounds of adultery or unreasonable behaviour, therefore speeding up what can be a painful process. And this is one of the reasons that the new ‘no fault’ divorce law is such a welcome introduction, enabling people to move forward towards a resolution. 

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If your marriage breaks down, reaching a divorce settlement with your former partner is key to moving forwards. The settlement can affect you and your family for years, so it’s important to get it right.

Will my children be taken into account in the divorce settlement?

Yes - the needs of any children of the family are always considered paramount. There is no strict formula for how assets should be divided, although there is a broad starting point of equality of the capital resources of the marriage. This includes things like houses, pensions, savings and investments. If the divorcing couple can’t come to an agreement on the division of their financial assets and any financial support needed, the court will decide how these should be dealt with based all the circumstances, including the parties’ ages, the length of the marriage, each party’s earning capacity, health, and what each party to the marriage needs financially going forwards.

Will my divorce settlement be affected if my partner has started a new relationship?

In many instances, the Court will make a ‘clean break’ order, which will completely end the financial arrangements between the parties. However, if the assets aren’t sufficient to permit this, then regular ongoing payments (‘maintenance’) might be made. 

If at the time of the negotiations either spouse is cohabiting with a new partner, this might affect the cohabiting spouse’s needs which might have a big impact on a financial settlement. It may be that their new partner contributes financially to outgoings, meaning they will need less financial support from their former spouse. Or, alternatively, if the paying spouse has a cohabitee who contributes to their outgoings, their ability to pay maintenance to their former spouse might be greater.

If you remarry without having reached a financial settlement with your former spouse, you might automatically lose the right to make any financial claim against your spouse.

Any spousal maintenance you receive will automatically stop if you remarry (it doesn’t automatically stop if you cohabit, but your former partner might ask to reduce or stop paying maintenance if you do). If you are receiving maintenance from your former spouse, you should continue to receive it after he or she remarries.

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Chat to the Author, Clare Pilsworth

Partner - Families and Divorce, Cambridge office

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