How to use adultery as grounds for divorce in England & Wales

No-fault divorce was introduced in England and Wales on the 6th of April 2022 which removes the need to choose one of the five facts to support the 'irretrievable' breakdown of a marriage. All the information below is applicable to the previous system, and divorces that were issued before the 6th of April 2022.

You can read more about this change in our no-fault divorce guide

Adultery is one of the five 'facts' or 'grounds' that can be used for divorce in England and Wales. According to the Office of National Statistics, 1 out of every 10 divorces that were completed in the UK was granted because of infidelity or adultery.

There are five grounds for divorce in England and Wales. These grounds are listed below:

• Adultery
• Two years separation
• Five years separation
• Unreasonable behaviour
• Desertion

This blog will cover how you can use adultery as the grounds for divorce in England and Wales.

How to use adultery as grounds for divorce:

What happens in a divorce if you commit adultery under UK law?

If you commit adultery in English law (England and Wales), this can be used as valid grounds for divorce. Divorce law differs in Scotland and Ireland, from that of England and Wales. To find out about the specific divorce law in Ireland and Scotland visit the Irish or the Scottish government website.

According to English adultery law, if you committed adultery, you can’t be the one to apply for divorce. This has to be done by the partner who remained faithful.

Here's a list of essential things you need to know if you are using the grounds of adultery for divorce in English and Welsh law:

• You must be married for at least a year to get divorced
• You must start divorce proceedings within six months of finding out that adultery has taken place
• Adultery means sex with a member of the opposite sex. Other forms of intimacy outside of sexual intercourse cannot be used in UK (English and Welsh) law
• The person who was not unfaithful must be the ‘petitioner’ i.e. the person who starts divorce proceedings

How to prove adultery when submitting for divorce

The easiest way to divorce using adultery is for the person who has committed the infidelity to admit to it. It can be hard to gather evidence and prove adultery if your ex isn’t prepared to admit it.

You can attempt to prove adultery or infidelity through text messages, hotel room bookings, witnesses etc. However, this route is not advised as it’s likely to lead to further tension between you. If the person who has committed adultery doesn’t accept that they have been unfaithful, then the other option is to use unreasonable behaviour grounds.

How does adultery affect the divorce paperwork?

Divorce application (previously called the divorce petition):

You can apply for a divorce online or by post which you can find out more about here. If adultery is used as the 'fact' or 'grounds' for divorce, then you need to include the date you found out that your ex committed adultery and you won't be able to use it if you have lived together as a couple for a period exceeding six months. If you've lived together as a couple for more than six months, you should consider using unreasonable behaviour instead. You could cite adultery as an example of unreasonable behaviour.

The acknowledgement of service:

The acknowledgement of service is a form sent with a copy of the divorce paperwork to the respondent. The questions on this form will change depending on the grounds used. If adultery has been used, then the respondent will have to admit to adultery on the form.

Conditional order (previously called the decree nisi):

If you posted your divorce application (previously called the divorce petition) to the court, the decree nisi application includes the D84 and D80 forms. If you have used adultery, the D84 form is the same, however, the D80 form changes depending on the grounds used, in this case, it's the D80 A form.

Final order (previously called the decree absolute):

Final order (previously called the decree absolute) is unaltered by the 'fact' or grounds used in the divorce application (previously called the divorce petition).

I committed adultery - can I submit for divorce?

When it comes to divorce law in England and Wales around adultery, you can’t start the divorce proceedings if you are the person who has committed adultery - it will fall to the other person.

This may not seem fair as it leaves your ex to start the process, especially if they aren't being cooperative. If you feel that your marriage has broken down beyond repair, and your ex won’t start divorce proceedings, then you can use 'unreasonable behaviour' as your reason for divorce.

If your ex is being cooperative and they agree to be the petitioner (the person starting the divorce) you can then admit to adultery on the acknowledgement of service form, and this can be used as proof of the infidelity.

My spouse didn't have extramarital sex but did get intimate. Is this a valid ground for divorce?

The short answer is no. Extramarital sex can be used as grounds for divorce (adultery). However, any other forms of intimacy besides sex are not valid when using adultery grounds for divorce in UK law (English and Welsh law). This may seem like quite an archaic law but in this instance, it's easier to use unreasonable behaviour as the reason for ending your marriage. You can use intimacy with another person as an unreasonable behaviour point in the behaviour statement on the divorce application (previously called the divorce petition).

If you’re not sure what grounds to use, book a call to talk to one of amicable’s Divorce Specialists.

Is It still adultery if you're separated in the UK?

In England and Wales, if you sleep with a new partner after you've separated from your wife or husband (but not yet divorced), then yes. By law, this would still be considered adultery and your ex could use that as a ground for divorce if they wished.

This is because you are still legally married in the eyes of the law. This is even the case if you and your ex have agreed to see new partners. However, this can only be used within six months of your ex finding out about adultery.

Should I name the other person?

There is the option to name the person your ex has had an affair with on the Divorce application (previously called the divorce petition). Whilst it’s tempting to do that when the emotions are raw, it doesn't achieve much and gives an additional opportunity for your ex or the person named to object and hold things up. Seek emotional support for help processing the end of the relationship. You can speak to Relate for support or visit the BACP website.

Can you use adultery to dissolve a civil partnership?

No, you can’t use adultery as grounds to dissolve a civil partnership, as it must be sexual intercourse with a member of the opposite sex, however, you can use your partner’s infidelity as an example of unreasonable behaviour.

FAQs

What is classed as adultery in divorce?

Adultery refers to having sex with a person of the opposite sex who isn't your spouse. This can be used as a 'fact' to support your marriage having broken down irretrievably.

What qualifies as adultery?

Extramarital sex with a member of the opposite sex qualifies as adultery in terms of divorce in England or Wales.

Does adultery matter in a divorce?

Adultery can be used as a 'fact' to support your marriage having broken down irretrievably, however, you must both agree in order to use this as your grounds for divorce.