With the infidelity of Matt Hancock dominating the headlines you might be wondering what the impact of an affair is when parties are getting divorced and whether parties can or should be penalised for cheating when dividing assets or making arrangements for children. The blog below explores each if these issues in turn:
Grounds for divorce- does it matter what these are?
Currently there is one ground for applying for a divorce- that the marriage has irretrievably broken down. This must be shown by one of the five “facts” as below:
- Unreasonable Behaviour
- Two years separation with consent
- Five years separation without consent
It has widely been reported that there will be a “no fault” divorce system implemented in the future but this appears to have been pushed back to next year and you can see our blog.
When selecting a “fact” to base your divorce on the general advice is that it is highly unlikely to make any difference from a practical point of view and disputes about this should be avoided where possible. It can, however, matter to people from an emotional point of view.
Where adultery is being cited as the reason for the marriage breakdown the adulterous party needs to admit this to avoid there being unnecessary and expensive court proceedings. In circumstances where they are unwilling to do so then the usual advice is to issue on the basis of unreasonable behaviour rather than adultery but, if you wish, you can include reference to your belief that there has been a third party involved.
As a general rule, the family court tries to avoid looking too closely at the reasons why a marriage broke down or how the parties may have acted whist they were married because from a practical point of view this would lead to lengthy hearings which would only serve to heighten emotion and increase legal costs. Where possible family lawyers will advise against any contested divorce proceedings (that is arguing about whether the marriage has broken down, who divorces who and on what basis) and suggest that parties focus instead on resolving any issues regarding finances and children.
Financial issues- will I have to pay for my infidelity in £
When considering how to resolve the financial issues between parties the starting point is section 25 of the Matrimonial Causes Act 1973. Our previous blog about property and divorce sets this out in more detail.
Section 25(g) states that the court shall have regard to “the conduct of each of the parties, if that conduct is such that it would in the opinion of the court be inequitable to disregard it”. On the face of it this appears to suggest infidelity could be taken into account, however, the reality is that this is highly unlikely and previous case law has set the bar for conduct arguments very high. The existence of an extra marital relationship on its own would not be enough.
That is not to say infidelity would never be taken into account, but the circumstances would need to be quite unusual and extreme, for example, if a significant amount of wealth was spent on pursuing an extra marital affair or affairs eg transferring funds to them, funding their rent or other living costs, lavish gifts or expensive holidays.
What about in relation to children?
The focus here should be on the best interests of the children (as set out in the Children Act 1989 and explained here. Put simply, the fact that somebody has had an affair does not necessarily make them a bad mother or father and generally the court will not be concerned with the reasons a relationship did not work or who might be to blame for that.
Of course, the circumstance of the marriage breakdown can make it more difficult for parties to communicate and it might, for example, be a reason why mediation might not be the right route. Wherever possible though the focus is to try and keep adult disputes away from the children and find a way to communicate effectively.
Overall, from a strictly legal point of view the existence on infidelity is unlikely to have any real impact on the outcome of a divorce.
Of course, it can have a significant impact on how the parties deal with the separation and their respective attitudes towards trying to negotiate and reach an agreement with the other party. This, in turn, can have a significant effect on legal costs.
If you are the party who cheated there is a balance to be struck between recognising the inevitable emotional reaction which your husband or wife will have to this and not agreeing to something unfair (legally) out of guilt.
If you are the party who has been cheated on then it is likely that you might need to come to terms with the fact that, whether morally fair or not, family law itself is simply not set up to penalise somebody for infidelity.
If you have any questions about divorce, separation or children generally then please do not hesitate to contact us.