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Family Law Myths No.6: Divorcing on Adultery

A short post today. No, you cannot divorce your spouse based on your own adultery. Why? Well, there is currently one ground for divorce in England and Wales and that is the irretrievable breakdown of the marriage. You can rely on one of five facts in support of this and the adultery fact is specifically worded to include two elements: 1) your spouse has committed adultery; and 2) you find it intolerable to live with them. This doesn’t leave scope for you to petition on the basis of your own adultery because you can’t say that your spouse finds it intolerable to live with you.

And as that was a nice easy answer, I will throw in a second one today. No, you also can’t petition on the basis of your spouse’s adultery from 10, 20 years ago, unless you only just found out about it. Because the test requires the petitioner to find it intolerable to live with their spouse, it would consider a cohabitation period of 6 months or more following learning of the adultery to be evidence that the intolerability element does not exist.

As many of you will have heard, the Divorce, Dissolution and Separation Act 2020 recently received royal assent, passing it into law. The Act removes the need to allege fault when applying for a divorce and also the respondent’s ability to contest the divorce. The Act comes after many years of campaigning but is not due to come into force until Autumn 2021 – so watch this space…

For more information on the issues raised in this blog please do not hesitate to contact one of the team at Rayden Solicitors.

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