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divorce proceedings

Why is infidelity not always deemed adultery in divorce proceedings?

| Published on August 12, 2015

Adultery in divorce proceedings

There was an interesting radio program on Radio 4 recently about why infidelity during a marriage is not always adultery in divorce proceedings. According to UK law, adultery can only happen between members of the opposite sex, therefore you cannot dissolve a civil partnership on the grounds of adultery and nor can you divorce your spouse if they have an affair with a member of the same sex.

There is some confusion about current divorce laws, as it is assumed that you only need to prove that there has been an irretrievable breakdown of the marriage. That is true, but this must be supported by a fact such as adultery, unreasonable behaviour, desertion, 2 years separation, which is consent to by the other party, or 5 years separation. Therefore you need to prove “fault” to obtain a divorce following the breakdown of the marriage or wait for a period of separation.

The divorce laws are about 40 years old, and it would seem that still having to prove “fault” is perhaps out of step with current thinking. Solicitors in the profession have been calling for a “no fault” divorce process to be introduced – in fact the government in 1996 set out how this was to happen in the Family Law Act 1996, but the relevant parts of the legislation were never implemented.

Recently, the courts have changed the procedure of how they deal with the divorce process to streamline it. All divorce proceedings are now issued in a regional divorce centre, with the aim being that the process should become quicker and easier, but there has been no attempt to change the divorce laws to bring the up to date. Humphries Kirk’s Justin Martin discussed this on BBC Radio Solent’s ‘Breakfast in Dorset’ show recently.

Obtaining a divorce is already very stressful as you have to prove fault, have to blame one party, why not change this to allow a divorce to proceed because the marriage has simply broken down?