Does adultery impact on the outcome of divorce?

As Kanye accuses Kim of being “out of line” we ask “does adultery impact on the outcome of divorce”?

The marriage of Kim Kardashian and Kanye West seems to be crumbling before us and Kanye appears to have, amongst other things, accused Kim of having an affair with Meek Mill.

Often when the breakdown of a marriage involves a third party there are questions about the legal implications of that and therefore this blog addresses the question as to whether or not a person will be penalised in their divorce under English law if they are the one to have had an affair.

For the partner who has been cheated on they may feel that there should be an element of punishment but is that the correct legal approach?

Divorce proceedings

Adultery is one of the facts you can rely upon to obtain a divorce.  In order to use this, you need the adulterous party to admit it or you need to be able to prove it in some other way (which can be difficult).  What this means is that sometimes one party might feel sure that the other has been having an affair and that is why the marriage has broken down, but they cannot easily use adultery as the basis for divorce proceedings.

As a general principal it doesn’t really matter from a legal point of view who divorces who and on what basis, however, it can matter hugely to the parties from an emotional point of view.

Financial Issues

Linked to but separate from the divorce proceedings are the financial issues and it is often here where people may feel that there should be an element of punishment.  For example, one party may feel that it is unfair to be forced to sell their home to give the other party their fair share when they feel that the breakdown of the marriage was that person’s fault and they created the situation.

Putting aside the emotional aspects, from a purely legal point of view, the relevance of a party having a relationship outside of the marriage is limited when it comes to determining a financial settlement.

Whilst conduct is listed as one of the section 25 factors (i.e. the list of things the court will take into account in determining a financial settlement and found in the Matrimonial Causes Act 1973) in practice for it to make any difference to the outcome of a case the conduct usually needs to be extremely serious and/or in relation to the litigation itself, for example, refusing to disclose information or being dishonest within the proceedings.  The fact that one party may have had an affair is highly unlikely to have a bearing from this perspective.

One aspect where it may become relevant is in terms of needs.  The usual starting point for the division of capital assets is equality but this can be departed from and one of the main justifications for this is where one party needs more than the other.  When establishing what a party needs it may be relevant if they are intending to live with another person in the future because costs of living may be shared, they may not need as much capital for a deposit etc.

Therefore, if the affair becomes an ongoing relationship it may be taken into account in some way in the financial settlement but there are lots of different factors for a court to weigh up and this is unlikely to be one of the most important.

Children

Questions about who a child or children should live with and how much time they may spend with the other parent will be determined based upon an assessment of the best interests of the child or children moving forwards.  In most cases it isn’t relevant how a party behaved during the marriage to their husband or wife, including whether or not they had an affair.

Inevitably, where there is an ongoing new relationship there may be issues to overcome in terms of how a child is introduced to the new partner and any children they may have.  If possible, it is better to try and manage this so that both parents know what is happening and when and the child or children can be properly supported.  It is acknowledged that this may not be easy.

The relationship which a child may have with any new partner and their children could be a relevant consideration for a court depending on the circumstances although it is perhaps only to be expected that such relationships may not always be easy, particularly in the early stages.

In short, the fact that you may have had an affair is unlikely to affect the outcome of any court proceedings in respect of your children.   The court would not take the view that simply having an affair makes you a “bad” parent.

Summary

In summary, the fact that you or your spouse may have had an affair is largely irrelevant from a strictly legal perspective.  However, it can be an important factor emotionally and, if the trust between the parties has been damaged, this can be a barrier to them reaching an agreement.

If you have any questions or concerns about divorce, finances, children or any other aspect of family law then you should take independent specialist family law advice and you can contact us by email at info@family-law.co.uk or WhatsApp on 07725 115219.  Alternatively, if you are able to call us we are more than happy to discuss matters with you over the telephone on 01625 544650.