Under the new no-fault divorce regime parties can no longer obtain a divorce on the ground of adultery. This article will highlight the many ways in which adultery still impacts divorce and financial settlements.
- Adversarial attitude of parties
Adultery brings in its wake a mixed bag of intense emotions and fundamental breakdown or trust and communication between parties. This can often make parties seem focussed on decision-making motivated by a desire for retribution/compensation/repentance. Opportunities for collaborative approaches including attempts at mediation are also missed out. On one hand the resentful party may wish to prolong matters to prevent their spouse from escalating their new relationship or starting afresh, and on the other hand, the party in a new relationship may be keen to conclude matters quickly for the same reason. If you have yourself committed adultery, the feeling of guilt in causing the breakdown of family life may make you feel pressured to accept an unfair settlement. Having the guidance of an empathetic and pragmatic legal advisor in cases of adultery is vital, so that they can assist you in achieving the best outcomes for yourself and the children.
- Financial position of the new partner being disclosed
Exchange of financial disclosure is the first step in resolving the matrimonial finances. If you or your partner have begun a new cohabiting relationship with someone, their finances will form part of the financial disclosure you share with your spouse. To this extent, your partner’s assets and liabilities will be examined by your spouse and the Court when assessing your overall financial position in relation to your spouse. If the new partner is financially dependent on your spouse, it must be noted that the maintenance obligation to them is only a moral one and not legally enforceable as spousal maintenance rights.
- Family Home
It is often the case that the spouse leaves the family home to live with their new partner, although there is no obligation to do so. A common challenge when one person leaves the relationship is that the spouse living in the family home is left to handle the household outgoings such as mortgage payments and utilities on their own even where both parties are jointly liable for the same. The fact that they are living with their new partner, does not mean that their housing needs are met and therefore disregarded. You do not lose your ownership or home rights in the family home merely because of your new relationship. Your solicitor can advise you on how matters relating to the family home can be dealt with appropriately in your case.
- Spousal maintenance
Award of spousal maintenance hinges primarily on two issues: demonstratable needs of the party seeking maintenance and the means of the parties. The party seeking maintenance having cheated does not automatically disentitle them from a maintenance claim. Spousal maintenance will only end upon remarriage of the party receiving the maintenance and can also terminate upon other trigger events such as when any children turn 18, etc if that is agreed by parties. If you are cohabiting with a partner this could affect the extent to which you need additional financial support from your spouse and may also give rise to the argument that you have fewer financial outgoings due to having a partner to share them with, however this does not automatically prevent the grant of an award of maintenance. It is best to take the advice of a solicitor as to the prospects of a spousal maintenance provision and the costs proportionality of doing so in your case.
- Child maintenance
Where your partner may have a child of their own from a previous relationship or your spouse may have had children with their new partner there is often dispute around financial responsibility to the children involved. As a general rule, the marital status of biological parents is not relevant unless paternity is disputed. An application for a child can be made to the Child Maintenance Service by their biological parent with lower earnings against the biological parent with higher earnings in cases only where there is no shared care arrangement between the biological parents. In this respect, child arrangements and parental alienation can have an impact on financial settlement. Working with a family law specialist will ensure that you receive well rounded support on child arrangements and your matrimonial finances.
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