How adultery affects divorce – Emily Brand in Tatler

January is often considered the most popular month for couples to start divorce proceedings, the hangover from the often-stressful festive period in full-throttle mixed with ambitions to kick-start the new year with fresh beginnings. Almost half of marriages – an estimated 42 per cent – end in divorce in Britain, where the average length of a marriage is 12 years.

Partner and Head of Family, Emily Brand provides expert commentary in Tatler on how adultery affects divorce proceedings. 

"Although committing adultery remains a breach of the Biblical ten commandments, since the introduction of no-fault divorce, it is unclear whether it remains a legal concept. There is only one ground for a divorce and that is the irretrievable breakdown of the marriage. The family courts will not investigate the reasons for that breakdown and they will certainly not allocate “blame” to one party or provide for one spouse to receive a greater share of the marital assets as some form of “damages” for the other spouse’s sexual misconduct.  The only arena where a court may be persuaded to investigate “conduct” is in circumstances where that behaviour has had such an impact on the family’s finances that it would be “inequitable” to disregard it.  Adultery does not per se amount to such conduct.

This can be deeply distressing for a spouse who has been a loyal partner for many years only to discover that s/he has been deceived and is perhaps about to be “traded in” for a new model.  That distress sadly is given little regard in a Court room, the focus of which is the terms of a financial settlement.  The judge is required to determine a “fair” outcome but “fair” does not include any penalties for adultery.  Understandably it can be difficult to comprehend that there is no legal retribution for causing the hurt and emotional trauma that mostly accompanies infidelity.

Even when considering which parent the children should live with following a divorce and how much time they should spend with their other parent, the Court again has little interest in the circumstances surrounding the breakdown of the marriage.  A judge is only concerned with the children’s welfare and not with the parents’ private lives unless one parent’s behaviour affects the children negatively. For example, a judge would be concerned if a parent, while supposedly caring for the children, neglects them in favour of pleasing her boyfriend.  

The help needed to come to terms with the distress and emotional trauma caused by adultery is mostly found through therapeutic support and not in a Court of law."

Read the full article in Tatler here.