What Is Adultery? The Law Explained

This article was authored by Alexandra Tribe .

It is a common misconception that adultery is a ground for divorce in and of itself. This is not actually the case. There is only one ground for a divorce, and that is that the marriage has irretrievably broken down. However, the court cannot make a finding of irretrievable breakdown unless it is satisfied that one of five facts has been proved.

Those five facts are:

the respondent has committed adultery and the petitioner finds it intolerable to live with the respondent; the respondent has behaved in such a way that the petitioner cannot reasonably be expected to live with the respondent; the respondent has deserted the petitioner for a continuous period of at least two years immediately preceding the presentation of the petition; the parties have lived apart for a continuous period of at least two years immediately preceding the presentation of the petition and the respondent consents to a decree being granted; and the parties have lived apart for a continuous period of at least five years immediately preceding the presentation of the petition. Where the cause is undefended, the court will generally accept the statements in the petition and will not question that the marriage has irretrievably broken down. Whereas if the respondent defends the petition, the court will then inquire as to the truthfulness of the allegations and seek proof.

The fact of adultery

When relying on the fact of adultery, the person applying for the divorce (known as the petitioner) has to show two things:

That their spouse (known as the respondent) has committed adultery; AND Definition of adultery in the context of a petition for divorce: the voluntary sexual intercourse between a man and a woman who are not married to each other but at least one of whom is a married person.

Despite the evolution of our laws in recent years to recognise same sex marriages, at present this has not been extended into our divorce laws. The law states that only conduct between the respondent and a person of the opposite sex may constitute adultery for the purposes of divorce.

Sexual intercourse is required, attempts to commit adultery do not amount to adultery, but may be pleaded as unreasonable behaviour in the context of an 'improper association'.

Adultery must be consensual. Once sexual intercourse is proven, the onus is on the respondent to show that it was not consensual if that is the case.

That the petitioner finds it intolerable...