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What is Adultery?
Section 1(2)(a) of the Matrimonial Causes Act 1973 (“MCA 1973”) provides for a petition to be based on the fact that ‘the respondent has committed adultery and the petitioner finds it intolerable to live with the respondent’
Both parts of the definition need to be shown, so not only does there have to be adultery, the petitioner needs to find it intolerable to live with the respondent. Adultery was defined as 'consensual sexual intercourse between a person who is lawfully married and someone who is not their spouse’. It has always been the case that the person with whom adultery was being committed must be a person of the opposite sex but on 13th March 2014 a new Section 1(6) was added to the Matrimonial Causes Act 1973 which clarified that only conduct between the respondent and a person of the opposite sex may constitute adultery following the introduction of the Marriage (Same Sex Couples) Act 2014.
It is a common belief that if parties have already separated and one of them commences a relationship then this is not adultery. It still is, as the parties are still legally married.
In relation to whether the petitioner does find it intolerable to live with the respondent, we need to look at what stage the parties separated. If the petitioner found out about the adultery but the parties continued to live with each other as husband and wife for one continuous period of six months or several periods which when added together exceed six months, then a petition cannot be based on adultery and behaviour must be used.
Therefore, if a petitioner discovers the adultery in, say, April but continues living with the spouse as husband and wife until November or after, then adultery cannot be used. Alternatively, if for example, the parties stay together for say three months after the adultery has been discovered, then separate but then try to give things another go, and they are together for over three months before separating again, adultery cannot be used. In both circumstances the petitioner will have to rely on behaviour but they can still refer to the adultery as part of the behaviour.
If you continue to live with your spouse for less than six months after discovering the adultery or any attempt or attempts at reconciliation, when added together, do not exceed six months, then a petition can be brought on the basis of adultery.
It is also important to note that separation can occur even though the parties remain living under the same roof. Provided that you are not sleeping in the same bed, not cooking or cleaning for each other, not eating meals together, not spending time with each other and not socialising together, then you can be classed as “separated”. The date of separation does not necessarily mean the date that someone physically moved out of the marital home as, in a lot of cases, neither can afford to and they have no friends or family that they can stay with temporarily.