This week, newspapers and social media have been flooded with news of cheaters website Ashley Madison being hacked, and the details of adulterers revealed. Around 1.2 million people in the UK are allegedly affected by the hack, and the consequences for many may have a lasting and even permanent effect on family life.
Extra-marital affairs are one of the most common grounds for divorce and can make family life difficult to repair, however what if there was membership of the site, but no affair? Today at Unlock the Law we look at the situation for thousands of UK spouses who may be facing the aftermath of the Ashley Madison hack.
Divorce in England & Wales
Under the law of England, you are not able to apply for a divorce until you have been married for a year. This could be challenging for newlyweds affected by the Ashley Madison hacking scandal as there are no exceptions to this rule.
The court will grant you a divorce where you or your partner is able to demonstrate that the marriage has irretrievably broken down. In order to do this you must be able to show that one of the following has occurred:
- You or your partner has committed adultery
- You or your partner has behaved unreasonably
- You or your partner has deserted the marriage more than two years ago.
- If you both agree to the divorce, you have been living apart for more than two years.
- Where one of you does not agree to the divorce but you have been living separately for at least five years.
The court may grant you a divorce where either you or your partner have entered into a sexual relationship with another member of the opposite sex, and the other partner is unable to continue living with the adulterer. Interestingly, under the law of England you are not able to cite adultery as grounds for divorce where you have continued to live with the offending party for 6 months or more.
In order to grant the divorce, the court will require details of the adultery. It may be possible that messages sent and membership in connection with the Ashley Madison site may now be used as evidence in a number of divorce cases.
On the other hand, if a partner is a member of the Ashley Madison site, but no sexual relationship has come from it, will this still be grounds for divorce? Possibly. The court may also grant a divorce where one party has demonstrated unreasonable behaviour. Whilst unreasonable behaviour is normally mental or physical abuse, dominating the relationship, not allowing one partner to live their life or refusing to contribute to the household it may be possible that actively seeking out an affair through membership of the ashley Madison site could constitute unreasonable behaviour.
Divorce in Scotland
In Scotland there are two grounds for divorce:
- That your marriage has broken down irretrievably
- one of the partners to the marriage has an interim gender recognition certificate
If you are divorcing on the grounds that your marriage has broken down irretrievably, there are a number of ways that you and your partner will be able to prove to the court that your marriage no longer exists and this will not change in the future. The ways in which you may prove to the court that your marriage has broken down irretrievably, is to evidence that:
- Your partner has behaved unreasonably
- There has been adultery
- You have lived apart for at least one year and you both agree to the divorce
- You have lived apart for at least two years where one of you opposes the divorce
In light of the Ashley Madison scandal, a court may grant a divorce where you or your partner have entered into a sexual relationship with a member of the opposite sex, known in legal terms as adultery. Interestingly, if either you or your partner have entered into a sexual relationship with a member of the same sex, this is not in technical legal terms adultery however it could be evidence of irretrievable breakdown of marriage nonetheless.
If adultery has occurred the court will need evidence of this. It could be that messages left on the Ashley Madison site could be used as evidence in divorce cases. If the court is convinced by this evidence that the marriage has broken down irretrievably, the divorce will be granted. There is no minimum period for which you must have been married before you begin divorce proceedings on the grounds of adultery.
On the other hand, if you have become aware that your spouse is a member of the Ashley Madison site, but you are unsure about whether they have had an affair, or have met with someone from the site but not entered into a sexual relationship, this could act as evidence that your partner has acted unreasonably. Most people acknowledge that a non-physical relationship can be just as damaging to a marriage as an affair and thus this breach of trust may be enough to cause irretrievable breakdown.