Q&A - My husband is having a same sex affair can I divorce him for adultery?

Q:    As if the lockdown and social distancing rules that I have been stringently following weren’t bad enough, I have just found out that my husband has not only ignored all the COVID-19 rules but has been carrying on an affair with another man. Worse than that, it turns out the other man has now been confirmed to have coronavirus, so he has put my life in danger too.  

I have got evidence of the affair because someone took a photograph of them in a compromising position and sent it to me. Will this be sufficient to divorce him on grounds of adultery?

A:    There is only one ‘ground’ for divorce in England and Wales and that is that the marriage has irretrievably broken down. Proof of this must be supported by one of five facts, adultery being one of those five facts.

However, the legal definition of adultery is that it can only be committed between people of the opposite sex. Case law defines adultery as “voluntary sexual intercourse between a man and a woman who are not married to each other but one or both of whom is/are married”. If your husband has had sexual intercourse with a man from work, that can be used as a particular of unreasonable behaviour, which is another of the five facts to support the marriage having irretrievably broken down.

‘Unreasonable behaviour’ is the term used to describe the fact that a person has behaved in such a way that their partner /spouse cannot reasonably be expected to continue living with them. There is no definitive list of unreasonable behaviours used in divorce petitions; it could be one or two serious events or a cluster of more minor issues. In this instance, it may even be considered unreasonable behaviour that your husband knowingly exposed you to potentially contracting coronavirus.

You should seek advice from a solicitor as to the best way forward for your particular situation.

Article 21/12/2020

This question has been answered by Nathan Wright, a Partner with GHP Legal.  If you would like to speak to someone about this or any other legal matter it is still possible, and we are doing everything we can to ensure that we continue to offer our high levels of service to our clients.  In accordance with government guidelines, some of our lawyers are currently working remotely which means you may not now receive a response as promptly as you may expect. Please kindly bear with us and we will respond as soon as we are able.

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Nathan Wright

Nathan Wright

Partner

A Partner specialising in Family and Matrimonial Law

Alison Peters

Alison Peters

Partner

A Partner in our Family and Matrimonial department in Oswestry