To quote a song title from the early 2000s (a favourite amongst the Gilson Gray Family Law Team!); the issue of adultery has received significant attention following events at a recent Coldplay concert, where the parties involved certainly couldn’t make that claim.
As a family lawyer who has specialised in this area for over 20 years and understands the profound effect that adultery can have on a family; my first thoughts are those of sympathy for the families involved.
From a legal perspective, however, it does raise the interesting question of the legal role which adultery plays in separation and divorce under Scots law.
Firstly, many clients come to us with the misconception that the circumstances in which a marriage breaks down can impact financial provision. There are rare circumstances in which behaviour during the course of a marriage (or at its end) can be taken into account when considering the issue of financial provision; but it is rare. Unless such behaviour has been extreme in nature; and had a profound effect on the value of the matrimonial pot to be shared behaviour is, on the whole, irrelevant. It is rare that adultery will be coupled with a depreciation of the matrimonial pot such that account should be taken.
That is not the case in every jurisdiction. A significant part of our practice involves international cases and there are other jurisdictions (for example, Italy) where it is possible, depending on the circumstances, to sue for damages arising from adultery. Many clients in Scotland are, however, disappointed to hear that adulterous behaviour is highly unlikely to have any bearing.
The public perception is also often that adultery will regularly form a basis for raising divorce proceedings. In fact, that is uncommon in Scotland. That is for two reasons. Firstly, the definition of adultery is very specific – it requires consensual sexual intercourse between a man and a woman. Snuggles caught on a kiss-cam at a concert would not count on their own!
The second aspect is that the grounds for divorce require, under Scots law, to be corroborated. By its very nature it is often the case that only the two parties committing adultery are capable of corroborating that actions which fall within adultery’s specific definition have taken place. There is other evidence that can be put before a court in seeking to establish that a marriage has broken down irretrievably as a result of one party’s adultery (for example, private investigators’ reports; or other extraneous evidence which may give rise to an inference of adultery) but more often than not adultery is not straightforward (and is often costly) to prove without the co-operation of the spouse; and the paramour with whom they are committing adultery.
Another point to note in seeking to use adultery as a ground is that in certain circumstances; a spouse who condones the adultery of the other may not be able to use adultery as a basis for divorce.
More often than not, because of the complications associated with seeking to proceed on the basis of adultery, if a behaviour ground (rather than a time based ground) requires to be used, then we instead (even where there is suspected adultery) proceed on the basis that the marriage has broken down irretrievably because the other party has behaved in such a way, by forming a relationship with another individual, that means the aggrieved spouse cannot reasonably continue to cohabit with them. This is less restrictive; and in particular other types of sexual and emotional infidelity would then fall within this category.
As experienced family lawyers, we are experienced in dealing with the impact which an extra-marital relationship can have upon a family; and we are here to help.
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