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Divorce myth: Adultery entitles the innocent party to a better settlement

16 Feb 2022

With around 10% of divorces in 2021 being as a result of one party having an affair, many spouses still believe that the guilty party will receive less from the financial pot as a result. Unfortunately, that is not the case. Divorce courts would not normally take into account any committed adultery.

But, is that fair to those who have suffered the emotional trauma of infidelity?

Most objective onlookers would think there must be some consequence, either financial or otherwise, for someone who has been unfaithful. It’s always difficult and unpalatable to receive the advice in these circumstances that bad behaviour of this kind will rarely have any bearing at all on the outcome.

An individual, who discovers their partner has had an affair is often and understandably very distressed.

Will the court favour one person over the other?

So, are there ever any circumstances in which the court will take an individual’s conduct into consideration and award one party more than the other?

Very rarely, and only when it is so serious that it would be inequitable for the court to disregard, such as committing a serious criminal offence or fraud against the other spouse.

When a couple divorce and are unable to resolve matters by agreement, the court’s role is not to apportion blame but to divide the finances as fairly as possible given the needs of each individual.

If there are children in the relationship, their needs will be the court’s first consideration and it will try to ensure the children have stability and a roof over their heads whilst they are in education.

Regardless of gender, the court will not want to see one spouse in a better position than the other, but of course much will depend on the family’s finances. Quite often, there isn’t enough money to provide two equal homes so the court has to prioritise any children’s needs first.

Is going to court the answer?

Going to court after the breakdown of any relationship should always be the last resort, particularly when it has been as a result of an affair, as it is often emotionally charged.

It can be difficult to separate the emotions from the financial unfairness. This is why it is so important to seek advice from an experienced family solicitor whose role is to achieve the best possible outcome in the circumstances.

Read about alternatives to court.

How can we help

Our expert family team are here to help you and advise whatever your situation may be. Find out more about our family law areas of expertise or contact us when you are ready.

Written by

Vanda James

Partner