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  • Writer's pictureAdrian Berkeley

Popular question at this time of year:

It is a common question put to me, I think my spouse is having an affair. What are my options?

There is no right or wrong answer here. However, if you are married, there are some legal considerations for you if your partner has an affair.

This may spell the end of your relationship, although often couples repair the relationship, making it stronger. “Shocked, betrayed and confused are just some of the emotions that I see my clients dealing with when their relationship has broken down due to an affair.

In the beginning, I advise them to allow themselves some time to consider the next steps rather than instantly reacting.

Firstly, is this certain or your belief? Is this coming from your inner self because you see the faults in your relationship?

Communication is crucial, whether you want to try and save the relationship or have decided it is over and need to plan a way forward?

Although it takes two to make a marriage work, if one has decided to end it, then the reality is the writing is on the wall.

Staying together Relationship counselling can be extremely helpful to explore the problems between them and get back on track. Otherwise, it can assist with the complexities of a break up. Relate or your local community will offer counselling and support.

Separating If there is no way back following an affair, then I would recommend taking early advice on the divorce process. Although there is no direct link to problems following one party leaving the home, it is best to speak to me as soon as possible.

LawFriend offers 24 hour advice and assistance for FREE. Just contact Adrian Berkeley 07970 291197.

Divorcing? In the English Legal System there is only one ground to petition for Divorce - that the marriage has irretrievably broken down.

Despite “pub” talk, there is no ‘no fault divorce’ in the UK and no “quickie Divorce”. Although LawFriend can arrange Divorces in under 4 months!

You must evidence the irretrievable breakdown in one of 5 facts. Unless you can bring your marriage within one of these you are unable to obtain a Divorce!

Three of these involve time of separation exceeding 2 years. One is the other party’s unreasonable behaviour and one is the other party’s adultery.

Specifically, the law states that you can petition for a divorce based on adultery if your spouse has committed adultery and you find it intolerable to live with them. Note same-sex spouses cannot use this fact.

Importantly, adultery can be committed and used for a reason to divorce, even after a married couple separated, even after years of separation!

Even if adultery is applicable, it isn’t necessarily that straight forward. What the court recognises as adultery and the everyday opinion differ widely.

The law relating to adultery The English Legal System defines adultery to be the “voluntary sexual intercourse between a man and a woman”. Not anything else!

Obviously, in the modern day relationships with sexting, online porn, and the like, this definition may seem rather restrictive.

The way around this restriction is that anything else may be evidence for “unreasonable behaviour”. This would also be the way for a same-sex marriage.

It should also be pointed out that if you continue to live with your spouse for a period of 6 months or more after you found out about the adultery then you cannot use that adultery as the basis for a divorce petition unless that adultery is evidenced as continuing.

If however it was a ‘one-off’ which took place more than 6 months before you found out, or your spouse denies having committed adultery, your option is to proceed on the basis of their “unreasonable behaviour”.

Getting divorced Citing adultery in a divorce petition does not usually require you to name or have actual knowledge of the third party. Of course, short of a pregnancy, or pictures (now thankfully confined to history only) it is difficult to prove adultery in Court. However, the Court may accept circumstantial evidence on the balance of probabilities. In most cases, there would be sufficient evidence for unreasonable behaviour in any event.

As adultery itself is no longer considered of relevance in Financial Matters on Divorce, changing to unreasonable behaviour may be the smart switch for an easier divorce. If you or your spouse is having an affair, get some FREE Legal Advice, before you make any decisions. Just telephone Adrian 07970 291197

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