What Exactly is Adultery In Scotland?

When filing for divorce, you must assess the reasons for divorce, since they will need to be disclosed throughout the divorce process.

5 Grounds for Divorce

In Scotland, there are 5 grounds for divorce:

1. Adultery 

Adultery can be grounds for divorce if your spouse has had sexual intercourse with someone of the opposite sex thereby having sexual activity with the same sex does not constitute adultery. It must be real sexual intercourse, not merely a kiss or ‘heavy caressing’, to constitute adultery as a reason for divorce.

You have six months after learning of your spouse’s adultery to seek divorce on the grounds of adultery as a reason. However, you cannot use adultery as a defence if you were living together as a couple for six months after learning of the affair.

2. Unreasonable Behaviour

Unreasonable behaviour is a ground for divorce in two different situations: first, when unreasonable behaviour happens, and second, when none of the other grounds for divorce apply. For example, when both partners have simply drifted apart and don’t want to stay married.

Although unreasonable behaviour may result in serious allegations such as domestic violence or alcoholism, it also includes more ambiguous concerns such as a lack of help in managing a home. In reality, there is a very low bar when it comes to unreasonable behaviour. Still, some factual cause must be presented and an incidence of ‘unreasonable behaviour’ must have happened less than 6 months before filing for divorce under family law.

3. Living separately for one year (with consent)

This argument can be used if you and your spouse have been apart for at least a year and agree to divorce.

Even if you reconcile for up to six months within that year, the year of living apart will still be considered continuous. However, the six-month interval cannot be counted as one year of living apart.

4. Living separately for more than two years (without agreement)

You may petition for divorce for this reason if you have not lived with your spouse for at least two years, even if your spouse refuses to divorce, due to the irretrievable breakdown of the marriage.

5. Asking for an Interim gender recognition certificate

A transgender person with an interim gender recognition certificate may terminate a marriage on this basis. To get such a certificate, individuals must apply to a Gender Recognition Panel. For more details, see the Government’s instructions on applying for a gender recognition certificate, especially in relation to civil partnerships.

According to popular TV culture and the media, adultery and divorce are closely related in the UK. Prior to April 2022, just 10% of marriages in England and Wales failed due to adultery.

The definition of Adultery

Adultery is a kind of infidelity in which an individual engages in sexual activity with someone other than their spouse, which can lead to an irretrievable breakdown of the marriage. Adultery is not a crime in Scotland, therefore the government cannot penalise someone for it. In Scotland, it may, nevertheless, be grounds for divorce under family law.

In Scotland, the criminal offence of adultery falls into 2 categories:

1. Heterosexual adultery occurs when a person engages in sexual activity with someone of the opposite sex who is not their spouse.

2. Homosexual adultery occurs when a person engages in sexual activities with someone of the same sex.

Adultery must be committed by one of the spouses with a person of the opposite sex in order to be considered grounds for divorce. Scotland’s legal system does not consider homosexual adultery as grounds for divorce.

What impact does adultery have on divorce in Scotland?

Adultery has serious emotional and financial consequences for both partners. It could cause communication and trust issues in the couple, resulting in the fall of the marriage. It may cause financial difficulties since the spouse who committed adultery may be required to pay alimony or support to their previous spouse in divorce proceedings. 

Adultery has a minimal legal impact on a divorce case. Adultery may no longer be used as a divorce basis or as evidence. Moreover, adultery has no effect on financial settlements and, unless it affects the welfare of any children involved, will not be considered when considering child custody.

It is important to remember that the state in Scotland does not pursue adultery since it is not classified as a crime under Scottish divorce law. If a person believes their spouse has cheated on them, they may petition for divorce on the grounds of adultery, and the court will consider the relevant evidence before granting the divorce.

SGT Law Firm is here to assist you!

Whatever the cause or reason for adultery, it could have disastrous effects on relationships. If you want to divorce your spouse, it’s important that you have access to experienced legal assistance like the SGT Law Firm to help you navigate this tough process. We have unmatched expertise in this area of the law and are aware of the emotional toll that such events have on our clients who seek legal advice.

For more information, please call us at 0141 266 0652 or send an email to info@sgtlawfirm.com.