If my husband or wife has cheated on me can I get more money in the divorce?
This is often one of the first questions a divorce lawyer is asked – usually inspired by American legal dramas and films where a private detective is hired at great expense to catch one spouse in the act and the other spouse walks away with a huge financial settlement as a result.
However, contrary to popular belief, the short answer to this question is no.
In England and Wales a divorce petition is filed on the basis that the marriage has irretrievably broken down, which must be proved by relying on one of five facts:-
a) Adultery. Your spouse has committed adultery and you find it intolerable to continue living with them. Your spouse must admit this adultery and you cannot have lived with them for more than 6 months from the date the adultery was last discovered.
b) Unreasonable behaviour. Your spouse has behaved in such a way that it would unreasonable to expect you to continue living together. This is the most common fact relied upon and the examples used can be relatively mild.
c) Desertion. Your spouse has deserted you for a continuous period of two years or more.
d) Two years separation with consent. You and your spouse have been living separately for two years and your spouse agrees to a divorce based on this fact. This can include living separately in the same household but you will need to provide details of the separate living arrangements that have been in place.
e) Five years separation. You and your spouse have been living separately for five years or more. This does not require your spouse’s consent. This is the default fact to rely upon if none of the above apply.
This law dates back to the Matrimonial Causes Act 1973, requiring a spouse to place blame on the other based on their adultery or unreasonable behaviour, or otherwise wait until they have been separated two years or more.
This means that over half of all divorce petitions are fault based i.e. based on adultery or behaviour, rather than having to wait the requisite time, leading to the belief that one person is usually at ‘fault’ and the other should be financially compensated. However, this is not the case.
The fact relied upon in the divorce proceedings has no bearing whatsoever on the financial settlement. The divorce proceedings are dealt with completely separate to the financial arrangements to be made upon divorce. The fact relied upon is essentially a means to an end i.e. to establish the irretrievable breakdown.
Instead finances are dealt with by reference to a completely different set of factors, commonly known as the Section 25 factors, referring to the factors listed at Section 25 of the Matrimonial Causes Act 1973. This allows for a discretionary approach, based largely on concepts of ‘needs’ and ‘fairness’. This means that a cheating spouse will still be entitled to a fair financial settlement which meets their housing and income needs, and the other spouse will not receive a greater financial settlement unless their housing and income needs dictate this.
There have been calls for divorce law reform for over twenty years, so far unsuccessfully. The No Fault Divorce Bill 2015-2016 proposed a sixth fact that couples could jointly declare that their marriage had broken down irretrievably. However, fears that this would be making divorce ‘too easy’ and encourage divorce meant the bill did not progress any further.
It therefore seems we are stuck with these old fashioned divorce laws for some time, with the associated misguided belief that if someone is at fault they will financially punished, and the other compensated.
In 2015, Resolution launched their Manifesto for Family Law which called for the removal of blame associated with petitions based on adultery and unreasonable behaviour. Research carried out by Resolution found that the current fault based system often creates more conflict between separating spouses, and that introducing a no fault system will not encourage divorce but will make it easier for people to manage their separation and financial/child arrangements with as little conflict and stress as possible. This can only be a good thing and it is hoped that ‘no fault divorce’ will be back on the reform agenda soon.
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