Adultery impact on divorce settlement

Legal position:

In the law of England and Wales, the grounds for divorce itself have been no-fault since the introduction of the Divorce, Dissolution and Separation Act 2020, which took effect in April 2022. This means that adultery or other forms of misconduct are no longer required to be proven to obtain a divorce; a simple statement that the marriage has irretrievably broken down is sufficient.

Regarding financial settlements, the position is governed primarily by section 25 of the Matrimonial Causes Act 1973. The court must consider a range of factors when deciding how to divide assets, income, and other financial resources, including the welfare of any children, the length of the marriage, contributions made by each party, needs, and earning capacities.

Conduct, such as adultery or other bad behaviour, is one of the factors listed in section 25, but it is only taken into account if it would be "inequitable to disregard it". In practice, this threshold is high, and courts are reluctant to adjust financial settlements based on marital misconduct unless it has a direct financial impact. For example:

– Adultery alone typically does not affect the division of assets, as it is seen as a personal matter rather than a financial one.

– However, if the bad behaviour involves financial misconduct – such as one party deliberately dissipating or hiding assets to reduce the available pot, or incurring unnecessary debts – this could lead to an adjustment in the settlement to reflect that inequity.

Cases where conduct has influenced outcomes are rare and usually involve extreme scenarios, such as severe domestic abuse with financial consequences or criminal behaviour affecting the family's resources. Mainstream guidance from sources like the Family Procedure Rules and judgments from the Family Court emphasise that the starting point is fairness and needs, not punishment for infidelity or poor behaviour.

Practical considerations:

Whether conduct affects your specific case would depend on the details, such as the nature of the behaviour, any evidence of financial impact, the overall assets involved, and the jurisdiction (confirming it is England and Wales). If the query relates to another country, I would suggest consulting our worldwide legal assistant, Atlas, as my expertise is limited to England and Wales.

In most divorces, focusing on negotiation or mediation to agree a financial settlement is more practical than litigating over conduct, as court proceedings can be costly, time-consuming, and stressful. Options might include:

1. Gathering all financial disclosure from both parties to assess the full picture.

2. Attempting informal discussions or mediation to reach a voluntary agreement.

3. If needed, applying for a financial order through the court, where conduct could be raised if it meets the high threshold.

4. Considering the enforceability and risks of any disputed points, as outcomes are not guaranteed.

If the behaviour involves domestic abuse or other serious issues, separate protections may apply, such as non-molestation orders, which could indirectly influence financial proceedings.