Is it adultery if you are separated?
Unreasonable behaviour, which includes adultery, was the most common reason for opposite-sex couples divorcing in 2019 with 49% of wives and 35% of husbands petitioning on these grounds; it was also the most common reason for same-sex couples divorcing, accounting for 63% of divorces among women and 70% among men*.
22 August 2016
Married couples split up and many will go on to start new, happy, fulfilling relationships. It’s not uncommon for separated couples to move on by moving in with their new respective partners.
Sometimes couples will decide to live separately before seeking a divorce so that they can use that period of separation as the basis for their divorce. Once you’ve been living apart for more than two years, this can be used as grounds for your divorce as long as you are both in agreement. If you wanted to proceed with a divorce sooner, then one of the two ‘fault based’ grounds would need to be relied upon. These are adultery and unreasonable behaviour.
If your partner doesn’t agree to proceeding on the basis of two years separation - and you don’t want to use the fault based grounds – you’d need to wait until you had been separated for five years before you could start divorce proceedings.
Is sleeping with someone whilst separated still adultery?
In the eyes of the law, yes. If you’re separated from your husband or wife and you sleep with another person of the opposite sex this is adultery under English family law because you are still legally married.
It doesn’t matter if you’ve agreed with your spouse to see other people, if you do it on holiday abroad, if they’ve done it first, or even if you’ve moved in with your new partner. It’s still adultery. Your husband or wife can use your adultery as the basis of a divorce petition as its one of the five facts that can be used to prove that a marriage has broken down beyond repair.
Is it adultery to have a sexual relationship with someone of the same sex?
You might be shocked to discover that, under current English law, having a sexual relationship with someone of the same sex is not classed as adultery.