What is adultery?
Adultery is the practice of having sexual intercourse by a married person with a person who is not his marriage partner. Adultery per se is strictly speaking no longer a ground for divorce since the introduction of ‘guiltless divorce’ by the Divorce Act of 27 April 2007. Since then, only two grounds for divorce have existed, namely irretrievable breakdown of the marriage and divorce by mutual consent, but this does not mean that there are no longer any consequences of adultery when it comes to divorce.
Adultery as proof of the irretrievable breakdown of the marriage
The finding of adultery can still serve as proof of the irretrievable breakdown of the marriage, allowing the court to grant the divorce at the request of one of the spouses. More so, adultery, like, say, assault or a serious criminal conviction, allows the plaintiff spouse to divorce more quickly. The divorce in these cases can be pronounced immediately without the spouses having to live effectively separated for a period of time.
The spouse who chooses to prove the irretrievable breakdown of the marriage on the basis of adultery has to prove it. Proof may be provided by any legal means. Remarkably, even if this adultery was committed by the plaintiff(!), under certain conditions, the confession of the committed adultery can also serve as evidence! In other words, the confession of your own adultery can serve as evidence to divorce from the marriage. The special procedure of catching adultery via bailiff is also still possible.
In practice, this procedure is regularly used, mainly for financial reasons, and this brings us straight to the second consequence of adultery in divorce.
Adultery as proof of serious fault
As a matter of principle, a spouse who is in need is entitled to maintenance and can claim a post-divorce maintenance payment from the other spouse, even if that maintenance-eligible spouse was adulterous. As this feels very unfair, the law has ensured that the spouse caught in adultery can no longer claim a personal maintenance payment after divorce. The detected adultery then counts as proof of a grave fault that has made the continuation of the society impossible. As a result, the adulterous spouse can no longer successfully claim a maintenance payment. The established adultery becomes a successful defence (a ‘plea’) for the other spouse against a maintenance claim after divorce.
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