Infidelity and Divorce in England and Wales: What to Know | LegalDocuments.co.uk

Overview

Infidelity, in a legal sense, usually refers to a spouse having a sexual relationship outside the marriage. Historically this was called adultery and formed one of the five grounds a petitioner could use to prove the marriage had broken down irretrievably.

That framework was replaced by the Divorce, Dissolution and Separation Act 2020, which came into force on 6 April 2022 and introduced no-fault divorce across England and Wales. Under the current system, neither spouse has to prove wrongdoing, and there is no longer any option to name adultery on the application itself.

A single statement that the marriage has broken down irretrievably is enough. That said, infidelity doesn't vanish from the picture entirely. It can surface in discussions about children, in how the finances are negotiated, and occasionally in the rare cases where a party's behaviour crosses the threshold the court treats as relevant conduct. Understanding where the line sits between emotional harm and legally significant conduct is where most confusion tends to arise.

Key steps

1. Recognise that the divorce itself is now no-fault. Since April 2022 you cannot cite adultery or unreasonable behaviour as a reason for the divorce on your application. You only need to confirm the marriage has broken down irretrievably. This applies whether you apply on your own or jointly with your spouse, and the other party cannot contest the divorce on the basis that they were faithful.
2. Separate the emotional issue from the financial one. Infidelity often feels like it should change the financial outcome, but in practice the courts rarely treat an affair as relevant conduct when dividing assets. Judges look at needs, contributions and fairness first. Going into financial negotiations expecting to be compensated for the affair usually leads to frustration and higher legal costs.
3. Consider whether any conduct has financial consequences. Conduct only tends to influence a financial settlement where it is, in the words often used by the courts, gross and obvious. An example might be where a spouse has spent significant marital assets on a third party. If you think money has been dissipated because of an affair, this is worth raising specifically rather than relying on the affair itself.
4. Think carefully about arrangements for children. Infidelity between parents is generally treated as a matter between the adults and does not, by itself, affect child arrangements. The welfare of the child remains the paramount consideration. If a new partner is going to be introduced to the children, that is usually better handled by agreement between parents rather than through the court.
5. Get clarity before making big decisions. Whether it's about moving out, changing locks, confronting a new partner, or making an offer on the finances, the early decisions often shape the whole case. A short conversation with an experienced legal adviser, based on what you describe, can help you avoid the common missteps that make things harder and more expensive later on.

Common questions