Does Adultery Or Living With A New Partner Affect My Divorce Settlement?

10th April 2021

adultery

Many people don't consider that they are committing adultery if they are having a sexual relationship with someone new AFTER they have separated from their spouse

This is moral positioning

The legal definition of adultery is:

" a married man having sexual intercourse with a woman who is not his wife or a married woman having sexual intercourse with a man who is not her husband "

Interestingly, it is not considered adultery if the sexual intercourse is between people of the same sex

When couples separate due to the adultery of one partner the other partner often feels that because they're the ‘injured party’ they should be entitled to a more favourable financial settlement

It may surprise you to learn that in nearly all cases, the reasons for the divorce are not relevant when deciding how the marital assets should be divided between the separating couple

The court doesn’t look to apportion blame or penalise either party, except in very unusual circumstances.

In the absence of an agreement between the parties, the court applies the criteria set out in the Matrimonial Causes Act 1973 when determining how the couple’s assets should be divided

The practical implications of a new serious relationship, where cohabitation is already taking place or is expected to do so in the foreseeable future, however, can't be ignored

Living With A New Partner Or Plans To Do So

The short answer is, the effect varies from case to case In divorce proceedings both you and your ex-spouse are under an ongoing duty to give open and full disclosure and this includes disclosure about new relationships

To explain how living with a new partner or plans to do so let's look at a few common scenario’s

You have been the primary earner throughout the marriage while your ex stayed at home to look after the children. You meet a new partner who owns their house and earns a good salary

In this scenario, a Court may consider that your housing needs have been met and may therefore give a more favourable view of your ex's position. It could be that they are permitted to remain for a period of time in the family home without it being sold or they receive a more generous share of the equity on its sale

The court may also consider that you have fewer housing costs as you may be sharing these with your new partner leaving you with a greater disposable income from which to pay maintenance or fund a larger mortgage

At first glance, this may seem like you are being penalised for moving on and moving in with a new partner. However, this is not the case. It simply boils down to the court's interpretation of needs based on the financial circumstances of the couple

You and your ex have a divorce financial order. It provides for you to pay your ex maintenance. During the financial settlement negotiations, your ex failed to disclose or has subsequently started living with another person who is in receipt of a low income

The Court would need to be satisfied that your ex's financial situation was much improved by their cohabitee sharing the housing costs and they may risk a reduction in the amount of maintenance they receive from you. If the cohabitee was earning a substantial income, this could also have an impact on the amount of maintenance you pay and may possibly lead to a termination of maintenance payments

You are in receipt of a good salary and are cohabitating with a new partner who has young children who live with you both.

The conventional view is that the first family comes first.

The court will consider that you were aware of your responsibilities to your first spouse and family before you embarked on a second relationship

However, the court cannot ignore the practicalities and in this scenario, the Court has a difficult balancing act to satisfy the financial requirements of the two families

Key considerations to note

Both you and your ex must give open and full disclosure of your financial means to each other right up to the point that the court makes a financial order by agreement or otherwise

If you start living with a new partner before the financial settlement is agreed upon or have an intention to do so after the divorce and you have not disclosed the relationship or your intentions during the negotiations your settlement may be re-opened when the non-disclosure is discovered.

The outcome could result in a change in the terms of the order and the possibility of being ordered to pay your ex's legal costs as well as your own If you are cohabiting while divorcing or plan to cohabit in the foreseeable future after the decree Absolute is granted, then it is important to seek advice from an experienced family lawyer at the earliest opportunity

The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances

If you would like to chat about your situation, then please get in touch

Sarah

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