When infidelity shakes the foundations of a marriage, it is not only the emotional impact but also the financial aspects of separation and divorce that become a reality. Increasing numbers of couples are drawing up pre-nuptial agreements before getting married in a bid to protect their assets, and a high percentage of those are inserting an infidelity clause. But what does this mean, and can no cheating be a legally binding condition? Read on to find out.
When infidelity shakes the foundations of a marriage, it is not only the emotional impact but also the financial aspects of separation and divorce that become a reality. Increasing numbers of couples are drawing up pre-nuptial agreements before getting married in a bid to protect their assets, and a high percentage of those are inserting an infidelity clause. But what does this mean, and can no cheating be a legally binding condition? Read on to find out.
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What is an infidelity clause?
The clause essentially means that if one party is unfaithful during the marriage, they will receive a smaller settlement in any subsequent divorce. As the law stands, with no-fault divorce, adultery is not taken into account by judges either as a ground for divorce or when dividing the matrimonial assets.
Is an infidelity clause legally binding?
Generally speaking, prenuptial agreements are not enforceable in the UK. However, following the case of Radmacher v Granatino, it means that it will be extremely difficult for UK courts to ignore pre-marriage contracts or prenuptial agreements. Adultery clauses are now at the forefront of the evolution of prenuptial agreements, meaning that if one party is unfaithful, they could lose much, if not all, of their share of the matrimonial assets.
Although the desire to add lifestyle provisions into a prenuptial agreement to regulate behaviour and conduct during the relationship has become popular, the law states that they are rarely enforceable in court. While judges have wide discretion to decide a case, incorporating an infidelity clause into the pre-nup leaves the possibility that the whole agreement may be void and unenforceable. This is because many judges deem such clauses to be frivolous and unnecessary.
The purpose of a prenuptial agreement is to determine the division of the financial aspects of the relationship; therefore, an infidelity clause or other unusual term should be included in an alternative agreement, in which the court does not have the authority to interfere. An alternative agreement is unlikely to have any bearing on the outcome of the financial settlement in any event because of the factors contained within section 25 of the Matrimonial Causes Act 1973.
Does infidelity affect financial settlements in divorce?
As we have established above, infidelity clauses are the enemy to the long established legal principle that conduct is irrelevant when dealing with the financial aspects of the divorce. That is, unless a spouse’s conduct is extraordinarily bad so that it would be inequitable for the court to disregard it. The existence of an extra marital relationship on its own would not be sufficient. That is not to say infidelity would never be taken into account, but the circumstances would need to be quite unusual and extreme. For example, if a significant amount of wealth was spent on pursuing the affair by transferring funds to the other party, paying their rent or other living costs, lavish gifts, or expensive holidays.
Does infidelity affect child arrangement cases?
The primary consideration for the court is the child’s welfare and what is in their best interests. Adultery, regardless of the pain it may cause the parties, is generally considered to be irrelevant when deciding arrangements for children. However, the court will always prioritise the child’s safety and wellbeing.
If a parent’s new partner with whom they committed adultery poses a danger to the child, there is the possibility that it could affect a child arrangement order. But infidelity in isolation is not a deciding factor. In reality, instances where adultery might influence child cases are few and far between.
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