What happens in a divorce if you commit adultery?

Dan Jones: I'm well.

Catriona Attride: Good. So we've got the exciting and often contentious subject of adultery to talk about today. And I know from having friends and clients who've gone through divorces where perhaps they have had a partner who has cheated on them, that there's often an expectation from the wronged party that they will somehow be rewarded in the financial settlement, and their other half penalized because of that person's adultery. And that's not the case. That's not how our system works.

Dan Jones: No, unfortunately not. Quite often clients come in and see me and quite rightly, they're very upset. They're very aggrieved at what's happened to their lives and their family's lives. But unfortunately the law doesn't work, as you said, with some form of compensation for adultery.

Catriona Attride: So how does it work? What are the basis of how you can get a divorce? What do the courts consider?

Dan Jones: So currently, as the law currently stands, there's one ground for divorce in England and Wales, and that is that the marriage is irretrievably broken down, and that's an emotional question, really. One party or one person in a marriage would need to decide that emotionally they do not want to be in this marriage anymore. So that's part one of the legal tests. Then to prove that ground, you need to go to part two of the legal test, and then you have to look at the five facts.

Catriona Attride: So you've basically got to show why the relationship is irretrievably broken down.

Dan Jones: Exactly. And there are various options open to a party who wants to pursue a divorce. So quite often, most people rely on unreasonable behavior.

Catriona Attride: And what does that look like?

Dan Jones: Well, it's an issue for the person who wants to get divorced. It's what's unreasonable to them. However, it does need to be quite extreme because the law dictates that you have to prove a certain level of unreasonable behavior.

Catriona Attride: So I couldn't, for example, say my husband is refusing to put the bins out on a Wednesday night. That would be-

Dan Jones: Well, I would need a divorce then, Cat, if that was the case. But no, it has to be a little bit more extreme than that. There was a case a couple of years ago that made that a bit clearer. But quite often what I see is people having relationships outside of the marriage that are inappropriate, which hasn't necessarily become a sexual relationship, but is inappropriate, nevertheless. Or-

Catriona Attride: There is sort of an emotional affair.

Dan Jones: Yeah, emotional affair, or lying about that relationship. That sort of thing.

Catriona Attride: That would be like texting someone, emailing someone, that kind of thing. So perhaps you haven't actually crossed the line, but that behavior would come under the unreasonable behavior, even though it's not adultery.

Dan Jones: Yeah. Because one person might think that is crossing an emotional line, if not necessarily a physical one.

Catriona Attride: Yeah, which wouldn't be acceptable to them, obviously.

Dan Jones: Yeah. Or, unfortunately, we see more extreme examples of unreasonable behavior where there's domestic violence, or there's financial mismanagement and addiction issues, or simply that people just aren't being very nice to one another and aren't getting on. Or, quite often, especially as marriages go on, that people have just fallen out of love with one another and there's no emotional or physical warmth between them anymore.

Catriona Attride: Yeah. Okay. So we've got unreasonable behaviour.

Dan Jones: That's unreasonable behaviour.

Catriona Attride: And then the others are...

Dan Jones: Then the others depend on two years or more of separation. So there needs to be a continuous period of separation between the parties.

Catriona Attride: And can you be separated if you're still having to live in the same house together?

Dan Jones: Yes. But you would have to lead very separate lives.

Catriona Attride: Okay. So you don't do your washing together. You don't eat your meals together.

Dan Jones: Yeah. It's very separate. It's literally you are under the same roof, but your lives are separated. So there's three options after a period of separation. There's firstly the two years' separation with consent. So that would mean everybody agrees that the marriage is at an end and therefore we'll all agree that we should pursue a divorce and we we're all signing up that we've been separated for two years. So that's option one, and it's very helpful for people, especially if they've been in an unhappy marriage and they've just now come to the conclusion that their separation needs to be formalized by way of a divorce. The next separation issue, or option, would be that people have been separated for five years or more, and the other party's consent then isn't needed.

Catriona Attride: So that could be because, say one party wants to get divorced and the other doesn't-

Dan Jones: That's right.

... that the one wants to get divorced has to sit out the five years if they can't prove any unreasonable behavior.

Dan Jones: Yes. And then the final option would be desertion. Now, that's very rare because what that basically means is that a husband or a wife has literally disappeared off the face of the earth and we can't trace them. We don't know where they are. We can't provide an address for them, et cetera. So that's very rare.

Catriona Attride: So that doesn't happen too often, yeah.

Dan Jones: Doesn't happen very often at all. So, so far we've got four. So we've got unreasonable behavior, two year separation with consent with everybody signing up to it, five year separation without consent, or desertion. And then the last option would be adultery, which obviously only applies in very specific circumstances.

Catriona Attride: So what does adultery mean? Because we've obviously talked a bit about an emotional affair, which sounds like it isn't adultery. So what is adultery?

Dan Jones: Well, adultery is a sexual relationship between a man or a woman with somebody who isn't their spouse.

Catriona Attride: Okay.

Dan Jones: It's a very straightforward definition.

Catriona Attride: Okay. And it's possible as well to join the party to the adulterous relationship into the divorce, isn't it?

Dan Jones: It is. However, it is frowned upon and it is not good practice.

Catriona Attride: Oh, okay. So again, if you've got an aggrieved spouse who feels like they want to take them both through the ringer-

Dan Jones: Yes.

Catriona Attride: ... and they're doing it from a point of vindictiveness, it's not something that's going to help their case.

Dan Jones: No, it's not. And there's difficulties with adultery because either the other party and then the third party would need to admit the adultery, and quite often somebody... I see quite often a person who's had the affair is quite happy to say, "Yes, my fault. I'll admit to the adultery." But if they don't, you've then got to go to court, spend-

Catriona Attride: You've got to prove it, haven't you?

Dan Jones: You've got to prove it, and you've got to spend quite a lot of money proving it, because it will be listed for a trial, which is a contested hearing before a judge and everybody involved would have to give evidence to a judge at great expense. So quite often, what my advice is, is to not rely on adultery, but to rely on unreasonable behavior-

Catriona Attride: Of course.

Dan Jones: ... because-

Catriona Attride: the burden of proof, so to speak, or it's easier to establish.

Dan Jones: Exactly. It's what's unreasonable to that person-

Catriona Attride: Exactly.

Dan Jones: ... and their spouse having a sexual relationship with somebody else, you're going to pass the test of being unreasonable to them.

Catriona Attride: Yeah. That's a fair assumption, isn't it?

Dan Jones: I don't think that a court would have any difficulty in accepting that that's unreasonable.

Catriona Attride: No. I mean, in cases where someone denies adultery, for example, because basically what you're saying is, it has no bearing on the outcome of the divorce whether you go for adultery, unreasonable behavior or consent after two years, or the others. So why then sometimes do people then defend the adultery and deny it? Is that because they, just as a matter of principle, don't want that out in the public domain, or...

Dan Jones: Possibly. What I tend to see is that either it's not correct and so it becomes an issue of principle about the truth. Sometimes somebody might feel, because of the nature of the marriage and the state of the marriage, that they might have felt forced to go and have a sexual relationship elsewhere, and therefore they feel aggrieved that the other party is raising that kind of behaviour, as an issue-

Catriona Attride: Taking a moral high ground when actually-

Dan Jones: Yeah.

Catriona Attride: ... it's clear that... I mean, I think it's quite often said, isn't it, an affair is generally the catalyst, not the cause. People in happy marriages don't tend to go and have an adulterous relationship, I suppose.

Dan Jones: But what I tend to say to people is, these are not public proceedings.

Catriona Attride: No.

Dan Jones: They are not out there for the world to see, and it's important that people focus really on trying to minimize conflict and minimize legal costs because the difficulty with getting into arguments about adultery, did it happen, didn't it? That it costs a lot of money that could be better spent on the parties, if they have children, it's better spent... Arguing about the adultery can cost you the same as a Caribbean holiday for a family of four.

Catriona Attride: So, ultimately, it's only the lawyers that are going to win.

Dan Jones: Exactly. And to be fair, most family lawyers that I know would rather deal with the main issues that we need to deal with, which are either resolving the matrimonial finances and the arrangements for the children if-

Catriona Attride: If there are.

Dan Jones: ... there are any.

Catriona Attride: Yeah. Well, I think that's a much more sensible way of doing it. So if you have got the adultery element, that's the fact that someone has decided they want to rely on, what impact does that have on the divorce process?

Dan Jones: In terms of the divorce itself, it runs in the same way as it was unreasonable behavior or any of the others that we mentioned earlier. So you would issue your divorce petition. The court would send it to the other party. They would need to admit the adultery and return the court paperwork within a prescribed period of time. And with all of that happening, the court would then allow the divorce to move to the next stage, which would be the decree nisi.

Catriona Attride: Okay.

Dan Jones: Which is essentially the halfway stage in the divorce. And then six weeks and a day later, you can apply to the court for decree absolute, which is the order of the court that brings the marriage to an end. So the divorce itself is very straightforward. What complicates matters is the arrangements for the children or the finances. And-

Catriona Attride: And you don't want to finalize your divorce, do you, until you've got those things sorted out?

Dan Jones: Absolutely not. Absolutely not. But to answer your question, does the adultery have an impact? Absolutely not. It will have no impact on the outcome of the financial matters. It might have an impact in relation to the children, because if the children are aware of the reason for the breakdown of the relationship, then the children might get sucked into the argument, which they shouldn't, but unfortunately that sometimes happens.

Catriona Attride: I suppose it's inevitable when emotions are running so high.

Dan Jones: Yeah.

Catriona Attride: So, ultimately, I think what you're saying is, is that whilst adultery, as one of the facts in the divorce, doesn't actually affect the outcome of the divorce, it won't affect how much money you get awarded.

Dan Jones: No.

Catriona Attride: It could have an impact on the arrangements for the children.

Dan Jones: It could. And that's because the children are probably going to be aware of it. Subject to the children's age they may turn against the adulterous party and therefore there's then some work that would need to be done to try and repair that relationship. And that might be very hard for the party who has suffered the adultery to be on board with that, and it might take some time. So it's a very delicate situation, but it certainly would probably have an impact and that's what I see in most cases, that when there has been adultery, that it's very difficult for the children to cope with that and it takes some time to build the relationship back up.

Catriona Attride: And I suppose, keeping them not having an adverse view against parents. I'm just thinking that, as we record this, there's a quite topical public case going on with the actress Alice Evans, and the actor Ioan Gruffudd, who-

Dan Jones: Yes.

Catriona Attride: ... and although they actually live in America, so I suspect any divorce will be in that jurisdiction, she is very publicly airing her distress at the breakdown of her marriage on Twitter. And she's always in The Daily Mail and the sidebar of shame as a regular fixture. And it's been exposed that he is in a new relationship. She purports that he's been having an affair for three years with this person, and she's dragging them both through it. But she also speaks quite openly about her children being aware of what's going on, and I think her children are preteen, young teenage years, so quite young, and that's going to have an impact on them, isn't it? But I suppose if they were here, that might also end up having a potential impact on the arrangements that are made for the children.

Dan Jones: Oh, definitely. She's clearly very distressed, and it is unfortunate that this is all airing in the public press, really, for them both, and definitely for the children, because they will have access to it. I see cases all the time where children see things on Facebook or in WhatsApp messages, that become a huge issue because they have seen what are adult conversations or adult issues being discussed about their parents, who ultimately they love dearly-

Catriona Attride: Yeah, of course.

Dan Jones: ... regardless of the issues between the parents.

Catriona Attride: They can't really understand it, can they? They can't understand the complexities of a relationship.

Dan Jones: They don't have the emotional maturity to understand it.

Catriona Attride: No happily. A lot of adults don't either, so you can't expect children to.

Dan Jones: No.

Catriona Attride: It's a very difficult one, isn't it? I mean, is there a time where, say for example, just using the Alice Evans case, is there ever a time where actually it can go against the very distressed, aggrieved partner-

Dan Jones: Yes.

Catriona Attride: ... with the children? Can it come to a point where actually she's at risk of losing some of her contact with her kids?

Dan Jones: Absolutely.

Catriona Attride: Because of what she's exposing them to, I guess.

Dan Jones: Absolutely. If that parent's behaviour is having an emotional impact, a negative emotion impact, then the court would certainly look at whether or not they should be spending as much time with that parent, because the paramount concern for the court and any professionals involved with children, will be the welfare of those children. And to be fair to parents, quite often, their paramount concern is for the children, but because of what they're dealing with and going through emotionally, they can't prioritise that.

Catriona Attride: They can't separate the two, can they, I suppose. And you can understand-

Dan Jones: Absolutely.

Catriona Attride: ... how it comes to it, but it's very difficult. I suppose as a bystander, as someone who's got the benefit of the objectivity, it's very difficult when you can see this storm developing and seeing what it's going to end up looking like, and you just think, "Oh, just pull back a little bit," or there's going to be consequences to this because it can end up really going against everybody's best interests.

Dan Jones: And in very extreme cases what the court would do is what I would call, transfer of residence. So if one parent is really emotionally failing children and they're being so negative about the other parent and it's having a detrimental impact on the children, the court will move the residence, so they will send the children to, for example, not live with mom, to live with dad, and then mom can have very limited time with them, because the children being exposed to such emotional harm.

Catriona Attride: Yeah, it's really difficult, isn't it? And I suppose for people in that situation, you almost need a really good friend now who can give you that tough love talk of, "Hang on, look at what's happening here," to give the other perspective, I suppose, because it's so easy to fall down that rabbit warren and pit of despair, because you're so hurt and so shocked and everything else. But it's sometimes needing a fresh pair of eyes to say, "Hang on a minute, you need to look at this another way."

Dan Jones: Yeah. I see that all the time, but luckily, most people do have that person that they can talk to-
Catriona Attride:
Good.

... and a good family lawyer will also do that tough love bit and not be scared to say to their client, "There are going to be consequences. We've got to manage this better."

Catriona Attride: Mm-hmm. And I think that's really important, isn't it, in terms of your role in these cases, because people think, "Oh, I'm going to my lawyer and they're going to sort out the legal bits." But there's far more to it because you are acting for people when they are at their most vulnerable and their most exposed. And you become... It's a professional relationship, but there's almost an element of counselling support enrolled in there?

Dan Jones: Absolutely.

Catriona Attride: Well, isn't there? And it's a very privileged position for you to be in, really.

Dan Jones: It is. And as you were saying, the vulnerability is a key thing, really, because people are emotionally vulnerable because their marriage has broken down, and they're financially vulnerable because what was a settled financial set of arrangements are now up in the air because all of a sudden the pot needs to be divided one way or another into two.

Catriona Attride: And I think the problem is, and I know from people that I've seen it happen to, there's this sense of, "But I didn't ask for this to happen. I was okay. I wasn't the one that went and blew up the family, or blew up the situation, so why should I now have to change my life financially because of your decision?" And that's the bit people find hard to get their heads around, isn't it?

Dan Jones: Yeah. Yeah, absolutely.

Catriona Attride: I mean, it's a real minefield, isn't it? But I think the important message for our listeners is, adultery isn't going to get you to any better place at the end of the marriage in a divorce, in terms of trying to use it as something to punish, for want of a better word, the other half with. Actually, it can just make things much more emotive and expensive and ultimately could be to the detriment not only of the parties who are divorcing, but also to any children involved as well.

Dan Jones: Yeah. I agree with that.

Catriona Attride: Good. Well, look, Dan, thank you so much for your time and for joining me. I think this is a subject that will really resonate with people listening. If it doesn't affect them personally, it'll certainly affect someone that they know, and I'm sure it'll be something that we pick up on again in a later date.

Dan Jones: Yeah. Thanks, Cat.

Catriona Attride: Thank you.