To Catch a Cheat

25th April 2017 Family Law

Television presenter Anthea Turner described in her newspaper column this week the techniques she used to ascertain that her husband of 15 years was having an affair.

She became suspicious when her husband, Grant's behaviour began to change, and he was angry with her for giving an interview in which she spoke positively about their private life and how their marriage was 'back on track' following Grant's affair with a younger woman the previous year. Anthea began checking Grant's emails to confirm that 'business meetings' he told her about were taking place, and, when she did not find any such confirmation, her suspicions grew. She then began to trace where he was going when he went out cycling or in the car, and using the computer to check the credit cards he had used and text messages he had sent. Eventually, she became convinced that Grant was once again having an affair, with the same woman as before.

Technological advances mean that there are more ways than ever that a suspicious spouse can try and catch their partner out if they believe they are having an affair. A number of personal investigators now also offer services purporting to obtain proof of a partner's infidelity. Once a husband or wife is convinced that their spouse is having an affair, their mind may turn to filing for divorce on the basis of adultery. However, the legal position can be more complex than they may imagine.

Adultery is one of five facts that can currently be used to support the assertion set out in the divorce petition that a marriage has broken down irretrievably. Many people assume that adultery covers any infidelity or sexual activity outside of the marriage. However, the law is clear that 'adultery' only refers to sexual intercourse between a man and a woman, one or both of whom are married to other people. This means that an emotional or physical relationship with a party outside the marriage that does not involve sexual intercourse will not constitute adultery, and neither will a relationship with a member of the same sex. In either of these circumstances, it may be possible to instead petition for divorce on the basis of the unfaithful spouse's 'unreasonable behaviour', citing the extra-marital relationship as an example of this behaviour.

If citing adultery in support of the fact that the marriage is irretrievably broken down, the court will ask the spouse accused of the adultery whether they admit to it. If they do not, the burden will be on the party making the accusation to prove the adultery, which can prove difficult in practice.

It is possible to name a co-respondent on divorce petitions filed on the basis of adultery. However, there is no legal obligation to do so. Whilst emotions inevitably run high in situations involving adultery, it may well be that naming a third party on the divorce petition will unnecessarily complicate matters, increase costs for everyone involved, and risk incurring the court's disapproval. It will only be appropriate to name the co-respondent on the petition in rare circumstances.

There is also a misconception that the 'wronged' spouse will be able to claim a larger financial settlement upon divorce. This is not the case. Finances are dealt with entirely separately from divorce proceedings and it is only in very extreme circumstances that the circumstances of the breakdown of the marriage will be taken into account in deciding the financial settlement.

If you suspect that your husband or wife is having an affair, you may feel very upset and uncertain as to what the future holds. It is important that you find out where you stand legally. Myself or my colleagues in the family team will be happy to advise you on the legal process and your options moving forward. To contact us please use the form or email us directly.


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David Pickering is a Partner and Head of Department located in Manchesterin our Family department

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