In ‘The Good Life’ (distributed with The Week) Lloyd Platt & Co considered whether sleeping with someone while separated would legally be considered adultery. The short answer is Yes! Regardless of whether a sexual encounter happened after separation or not, the parties are still married, so the other party could utilise this as a ground for divorce proceedings.
Separation from a legal perspective takes many forms. Most common is separation and living in separate households, but separated and living under the same roof is also recognised, provided the couple do not share intercourse, meals, or carry out household tasks together.
At present (see previous blog on upcoming changes and ‘no-fault’ divorce) there are only two fault-based grounds on which a divorce can be filed: adultery or unreasonable behaviour. If there are no grounds for either of these, the couple must wait three to five years – depending on whether they both agree with the divorce or one party opposes it.
‘If either party is looking to file for divorce on the grounds of adultery, they must not have lived together as a couple for six months or more after the discovery of the adultery. If the couple remain living together for six months or longer, they’ll forego their rights to use adultery as a ground for divorce’.
The legal definition of ‘adultery’ is that there must be sexual intercourse with penetration between a man and a woman – so sexual relations between same sex couples is not classified as adultery – and it might be difficult to prove ‘penetration’ in court (unless the other party is pregnant).
However, both these cases might be considered ‘unreasonable behaviour’, the legal definition of which is ‘that the Respondent behaved in such a way that the Petitioner cannot reasonably be expected to live with them.’
Adultery has no impact on any financial settlement, with two exceptions:
• If as part of the adulterous affair, the Respondent has spent substantial amounts of money on the co-respondent; ‘substantially dissipated monies by giving lump sums to them or spending unreasonable amounts on the co-respondent, or giving them monies to put towards a home’.
• If the Respondent intends to set up home with the co-respondent with whom they had the adulterous affair, ‘then income and capital of the co-respondent can be taken into account in assessing a financial settlement’ as part of the ‘needs’ assessment.
If in any doubt about your legal position, as always, I’d say ‘seek legal advice’.