According to a recent study, 50% of married men find their mother-in-law attractive. As unlikely as that seems, it perhaps comes as no surprise that a significant number of marriage breakdowns occur when one spouse engages in an extra marital relationship with another man or woman. We are often told - my spouse has cheated on me! Our clients then want to know what they can do.
The questions we are often asked by clients reflect their hurt and anger at this emotionally difficult time.
- Will my spouse be held accountable for their actions?
Whilst the law in Scotland provides for one ground of divorce, namely irretrievable breakdown of marriage, there are a number of ways that irretrievable breakdown can be proved. One of those is proving that the other spouse has engaged in an adulterous relationship during the period of marriage. That may sound easy, but in practice actually proving an adulterous relationship (in the face of a denial from the adulterous party) is not always straightforward.
For that reason, irretrievable breakdown as evidenced by one spouse's adultery is not as frequently used as other, non-fault based grounds, of divorce. Of the 9,684 divorces that were granted in Scotland in 2012/13, only 58 of those were raised citing one spouse's adultery as the reason for the marriage breakdown. Whilst 9,040 were raised under non-fault based grounds (separation for a period of one or two years).
In practice, very few divorces are raised citing adultery as the reason for the marriage breakdown.
- Will their behaviour affect how often they get to see the children?
In considering whether or not to make an order providing for one spouse/parent to have contact (previously known as access) with a child or children, the Court must regard the welfare of the child or children as its paramount consideration. Whilst the behaviour of one or both spouses towards the other is not irrelevant, the fact that one spouse has been unfaithful is unlikely to be a reason as to why a Court would find against that party in the course of a contact dispute.
- Will I be entitled to more money from the divorce settlement as the wronged party?
Put simply, no. There are rules regulating how the 'matrimonial property' should be divided following separation. There is no provision in Scots law for a compensatory or pecuniary payment to be paid to the innocent spouse on account of the actions of the other.
For more information or advice, please don't hesitate to contact our family law team.
