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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/applying 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

No fault divorce

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.

Before the introduction of the no-fault divorce in April 2022, where you can no longer assign blame through a fault-based fact, some couples would decide to live separately before seeking a divorce so that they could use that period of separation as the basis for their divorce.

Before the legislation changed, this two-year separation could be used as grounds for your divorce. If you wanted to proceed with a divorce sooner, then you would’ve needed to rely on one of the two ‘fault based’ grounds. These were adultery and unreasonable behaviour.

If your partner didn’t agree to proceeding based on the two years separation - and you didn’t want to use the fault-based grounds – you’d have needed to wait until you’d been separated for five years before you could start divorce proceedings.

As adultery was classed as a fault-based ground before the introduction of the no fault divorce, it was important for many to define what exactly this was.

Is sleeping with someone whilst separated still adultery?

If you’re separated from your husband or wife and you sleep with another person of the opposite sex this is adultery under England and Wales family law because you're still legally married.

It doesn’t matter if you’ve agreed with your spouse to see other people - it’s still adultery.

Prior to April 2022, your spouse would’ve been able to use your adultery as the basis of a divorce petition (now called application). Now it’s more of a moral consideration.

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.

If you're considering getting divorced contact the divorce solicitors at Slater and Gordon Lawyers on freephone 0330 041 5869 or alternatively contact us online and we’ll be happy to help.

All information was correct at the time of publication. *Stats from ONS.

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