Is adultery a crime?

For any act to be classed as a crime, it must break the law. The Oxford English Dictionary defines a crime as: “An action or omission which constitutes an offence and is punishable by law”. However, the UK Victims Support Group states: “A crime is a deliberate act that causes physical or psychological harm, damage to or loss of property, and is against the law”. Could it be argued that committing adultery is likely to cause psychological harm to the adulterer’s spouse and therefore should be seen as the committing of a crime?

To understand why adultery is not classed as a crime but is, instead, classed as a misdemeanour, one needs to examine the law more closely.

First, let us look at marriage. To commit adultery, you first have to be married. A wedding is a legally recognised act which achieves three principal objectives beyond a man and a woman declaring their love for each other. First, as a spouse, the wife or husband has certain legal rights over their partner’s property and estate. As examples, if a man dies without making a will, but he is married, his wife will automatically inherit his estate if there is no will to state otherwise. That is not the case if the couple only lives together. 

A wife is also seen as ‘next of kin’ and has the right to make decisions concerning her husband’s treatment in the event of a medical emergency. However, less of a stigma today, children born outside wedlock were referred to as bastards and would be seen to be a lesser person in particular social circles. Finally, if you are married, you are not legally entitled to marry anyone else and, unlike adultery, this is a criminal offence which can lead to imprisonment.

When we get married, we make our vows, including “forsaking all others” and promising “to be faithful”. However, these are not a part of the legally binding contract of marriage. They are vows; they are personal messages and aspirations. There has even been a great deal of confusion and misinformation relating to adultery being grounds for divorce, which is not the case. There is only one acceptable ground for divorce, and that is the irretrievable breakdown of the marriage. That irretrievable breakdown must satisfy at least one of five stipulations, including one or other partner committing adultery. 

However, if the couple continues to live together after the adulterous act, that act of adultery no longer qualifies as an act leading to the marriage’s irretrievable breakdown. By continuing to live together for a further six months, you prove this is not the case.

When it comes to marriage legality, you have to go as far back as 1857 for adultery to be punishable under ecclesiastical law. In 1857 the Matrimonial Causes Act changed the law and adultery was no longer seen as a criminal act, even though it was still frowned upon. Besides, and for many years after 1857, divorce was not socially acceptable on a widespread basis. When equality between the sexes did not exist, a divorced man could still hold his head up in public, but a divorced woman would often find herself becoming a social pariah. 

The result? There were very few divorces compared to today, and even fewer instances where adultery was even mentioned.

So, in answer to the question, no, adultery is not a crime. However, if you have concerns relating to infidelity and the consequences for your marriage, from a legal standpoint, why not contact a solicitor here at Qredible.co.uk. We have several highly experienced divorce solicitors who may be able to provide you with precisely the information and advice you need.