From adultery grounds to no-fault divorce: how English law changed

How did the Matrimonial Causes Act 1857 treat adultery?

The Matrimonial Causes Act 1857 made adultery the main ground on which a court could end a marriage, and it moved divorce out of Parliament and the church courts for the first time. Before 1858 a divorce that allowed remarriage typically required either a complicated annulment or a private bill passed by Parliament, both so costly that the remedy was in practice limited to the very wealthy ^[4]. The Act created a civil Court for Divorce and Matrimonial Causes and treated marriage as a contract rather than only a sacrament ^[4].

The Act did not simply open the door to everyone who wanted out. Divorce was a remedy for a wronged spouse, so the petitioner had to prove a matrimonial offence by the other. A petitioner who had been an accessory to the adultery, or who had condoned it, could not obtain a decree ^[4]. Divorced people were allowed to remarry as if the earlier marriage had ended by death ^[4].

The Act's treatment of the third person reflected the thinking of the time. It abolished the old action for criminal conversation, a damages claim that a husband could bring against his wife's lover, but it kept a husband's right to compensation from the man concerned, with the damages limited and paid to the court ^[4]. That compensation survived for more than a century; it is described in the companion article on the vanished lawsuits of English law.

The UK Parliament's own timeline describes the 1857 Act as the moment divorce proceedings were transferred from Parliament to a court of law ^[14]. Demand for civil divorce was real, although for many decades the cost still kept most people away.

Timeline

1. 1857The Matrimonial Causes Act 1857 creates a civil Court for Divorce and Matrimonial Causes, ending the need for a private Act of Parliament; adultery is the central ground (in force from 1858).
2. 1923The Matrimonial Causes Act 1923 lets a wife divorce her husband for adultery alone, ending the extra proof she had to give.
3. 1937A further Matrimonial Causes Act widens the grounds for divorce, adding cruelty, desertion and incurable insanity [14].
4. 1971The Divorce Reform Act 1969 takes effect on 1 January: irretrievable breakdown becomes the sole ground, shown by adultery, behaviour, desertion or separation.
5. 1973The Matrimonial Causes Act 1973 consolidates the 1969 rules; adultery stays one of five facts, with the added test that the petitioner finds it intolerable to live with the respondent.
6. 2018On 25 July the Supreme Court refuses Tini Owens a divorce in Owens v Owens ([2018] UKSC 41), fuelling calls for reform.
7. 2020The Divorce, Dissolution and Separation Act 2020 removes the requirement to prove any fact.
8. 2022On 6 April the new law starts: a statement of irretrievable breakdown is conclusive, with a 20-week wait before the conditional order [15].

Why did husbands and wives face different rules?

Husbands and wives faced different rules because the 1857 Act applied a double standard: a man could divorce his wife for adultery alone, while a woman had to prove adultery together with another offence. Such an offence could be incest, cruelty, bigamy or desertion ^[4]. A husband's petition also had to name the adulterer as a co-respondent, while a wife's petition did not ^[4]. The statute justified the husband's damages claim on the footing that a wife's adultery injured him, language that later commentators read as treating wives as their husbands' property ^[4].

This asymmetry lasted for 66 years. The Matrimonial Causes Act 1923 equalised the position, so that a wife could divorce her husband on the basis of his adultery alone ^[4]. The change belongs to a wider story of unequal sexual standards, explored in the article on Victorian morality and the double standard.

Further grounds came later. The Matrimonial Causes Act 1937 widened the grounds, adding cruelty, desertion and incurable insanity according to the standard account ^[5][14]. These additions widened the list of offences without changing the underlying idea that divorce required a guilty party and an innocent one.

By the 1960s that idea was under strain. A group convened by the Archbishop of Canterbury backed the concept of irretrievable breakdown, and the Law Commission, a royal commission and Parliament all considered the question before the Divorce Reform Act 1969 became law ^[5]. The Act received Royal Assent on 22 October 1969 and came into force on 1 January 1971 ^[5].

What did the 1973 Act require?

The Matrimonial Causes Act 1973 required a petitioner to show that the marriage had broken down irretrievably and to prove one of five facts, and adultery was the first of them. It consolidated the Divorce Reform Act 1969, which it repealed in full from 1 January 1974 ^[5]. The text in force until 2022 said that the court could not hold the marriage to have broken down unless the petitioner satisfied it of one of five facts ^[3].

Those facts were as follows. The first was adultery by the respondent, with the added condition that the petitioner found it intolerable to live with the respondent. The second was unreasonable behaviour, meaning conduct such that the petitioner could not reasonably be expected to live with the respondent. The third was desertion for at least two years. The fourth was two years' separation with the respondent's consent, and the fifth was five years' separation without it ^[3].

The adultery fact had a narrow definition. The older text limited adultery to conduct between the respondent and a person of the opposite sex, so a same-sex marriage could not be ended on that basis ^[3]. Same-sex couples who married after the law changed therefore relied on the other facts, mainly unreasonable behaviour.

In practice, adultery was never the most used route in the later years of the old system. The Office for National Statistics reported that in 2022 unreasonable behaviour was the ground cited in 47.1% of opposite-sex divorce petitions ^[7]. The figure for adultery is not quoted here because it was not found in the parts of the bulletin that were read.

Contesting a petition was possible, and it exposed the weakness of a fault-based system. Hugh and Tini Owens married in 1978; she petitioned in May 2015 on the ground of unreasonable behaviour, and he defended the petition ^[6]. The trial judge found her examples "flimsy" and rejected the petition, and the Court of Appeal upheld that result ^[6]. On 25 July 2018 the Supreme Court, in its decision numbered UKSC 41 of 2018, dismissed her final appeal, with Lady Hale expressing "uneasy feelings" about the outcome ^[6]. Public reaction to the case fed the campaign that led to the 2020 Act ^[6].

What changed with no-fault divorce in 2022?

From 6 April 2022 the only ground for divorce in England and Wales is that the marriage has broken down irretrievably, and the court must accept a statement to that effect as conclusive. Section 1 of the Matrimonial Causes Act 1973, as substituted by sections 1 and 8(3)(a) of the Divorce, Dissolution and Separation Act 2020, allows either spouse, or both together, to apply, and the application must include the statement ^[1]. The Act was passed in 2020, and commencement regulations brought its main provisions into force on 6 April 2022 ^[15]. The Act removes the requirement to establish facts for divorce and the factual grounds for judicial separation, and it makes parallel changes for civil partnerships ^[2].

The process now has two built-in pauses. The court cannot make a conditional order until the applicant or applicants confirm that they wish to continue, and that confirmation cannot be given until 20 weeks after proceedings start ^[1]. The conditional order cannot become final until at least six weeks after it is made ^[1]. The Lord Chancellor can alter these periods by statutory instrument, but the total cannot exceed 26 weeks, and a court can shorten them in a particular case ^[1]. The government fee for applying online or by post is listed at £628, with help available for those who qualify ^[12].

Joint applications are new. Under the old law a petitioner always blamed or separated from a respondent; now spouses can apply together, and the statistics show how quickly the option was used. Of the 7,394 divorces granted in 2022 under the new law, which were 9.2% of all divorces that year, 28.8% were joint applications ^[7].

The overall number of divorces fell sharply in the transition year. The ONS counted 80,057 divorces granted in England and Wales in 2022, down 29.5% from 113,505 in 2021 and the lowest number since 1971 ^[7]. The ONS notes that the lower count may partly reflect the new waiting periods, since cases begun under the new law could not reach a decree as quickly ^[7]. It does not present the fall as a change in the underlying number of marriages that end. The next ONS bulletin, published on 23 September 2026, counts 105,002 divorces in England and Wales in 2025, and reports that 94.2% of all dissolutions that year were granted under the new law, with 25.9% of new-law cases being joint applications ^[13].

Does adultery still matter in divorce proceedings?

In England and Wales adultery no longer has any formal role in obtaining a divorce, but it has not vanished from the law altogether. The applicant does not have to say why the marriage ended, and the other spouse cannot defeat the application by disputing the reasons, because the statement of breakdown is treated as conclusive ^[1]. A divorce can therefore be granted without any court finding about who did what.

Money is a separate question. When a court decides how to divide finances after divorce, section 25(2)(g) of the 1973 Act lists the conduct of each party among the matters to be considered, but only if the conduct is such that it would be inequitable to disregard it ^[8]. The provision does not mention adultery by name. The section's wording sets a high bar, which is why conduct is only occasionally a factor and why an affair on its own is not usually treated as one.

Adultery can still matter in other settings. It remains a recognised way of showing breakdown in Scotland, as the last section explains, and it keeps its moral and religious meaning for many couples even though English civil law no longer asks about it. For the wider picture of how the law of the United Kingdom now treats sex outside marriage, see whether fornication is illegal in the UK.

The practical effect is to separate the legal end of a marriage from the question of blame. The statute itself takes no position on whether a marriage was ended by one spouse's conduct; it asks only for a statement and a waiting period ^[1][2].

How do Scotland and Northern Ireland differ?

Scotland and Northern Ireland did not adopt the 2020 Act, because it extends to England and Wales only ^[2]. Each has its own divorce law, and in each adultery still has a place.

In Scotland, section 1 of the Divorce (Scotland) Act 1976 allows divorce only if the marriage has broken down irretrievably, and that breakdown is established by one of four things: adultery by the defender since the marriage; behaviour that means the pursuer cannot reasonably be expected to keep living with the defender; one year without cohabitation with the defender's consent; or two years without cohabitation ^[9]. The one-year and two-year periods were introduced by the Family Law (Scotland) Act 2006 with effect from 4 May 2006 ^[9]. Adultery does not count if the pursuer connived at it or condoned it by continuing to live with the defender while knowing or believing it had occurred ^[9]. The standard of proof is the balance of probabilities ^[9].

Northern Ireland's law dates from 1978 and is a hybrid. Divorce can rest on fault grounds, which are unreasonable behaviour, adultery or desertion, or on a no-fault ground where separation is the evidence ^[10]. The Department of Finance, led by Minister John O'Dowd, consulted from 23 June to 26 September 2025 on three options: aligning with the Republic of Ireland, aligning with England and Wales, or making no substantive change ^[10].

The reform has since been reported as stalled. The Christian Institute, a campaigning charity, reported in 2026 that an official had told the Assembly's Finance Committee that reform looked unlikely during the current mandate, that around six in ten consultation respondents opposed no-fault divorce, that the Democratic Unionist Party had not endorsed the minister's policy paper, and that a bill was not expected before the 2027 Assembly elections ^[11]. This article found no official Northern Ireland statement more recent than the consultation, so the current position should be checked with the Department of Finance.

Frequently asked questions

Is adultery still a ground for divorce in Scotland?

Yes. Under section 1 of the Divorce (Scotland) Act 1976, adultery by the other spouse since the marriage is one of the ways of showing that a marriage has broken down irretrievably. The others are unreasonable behaviour, one year's separation with consent and two years' separation. Adultery does not count if the pursuer connived at it or condoned it.

Does adultery affect the financial settlement?

Rarely. In England and Wales, the court must consider each party's conduct only if it would be inequitable to disregard it, under section 25(2)(g) of the Matrimonial Causes Act 1973. The provision does not name adultery, and an affair alone is not usually treated as conduct of that kind.

Can the other person be named in a divorce application?

Not in any meaningful way under the current law in England and Wales. The application consists of a statement that the marriage has broken down irretrievably, which the court treats as conclusive, and no reasons need to be given. Under the 1857 Act a husband's petition had to name the alleged adulterer as co-respondent.

When did no-fault divorce start in England and Wales?

It started on 6 April 2022. The Divorce, Dissolution and Separation Act 2020 substituted a new section 1 into the Matrimonial Causes Act 1973, and the main provisions took effect on that date. Applications can be made by one spouse or jointly, with a 20-week wait before the conditional order.

Can a spouse still contest a divorce in England and Wales?

Not on the ground that the marriage has not broken down. The court treats the applicant's statement of irretrievable breakdown as conclusive evidence and must make the order, so there is no longer a contest of the kind that failed in Owens v Owens in 2018. Disputes about money, children or the court's jurisdiction remain possible.

Is adultery a ground for divorce in Northern Ireland?

Yes, for now. Northern Ireland's law dates from 1978 and still lists adultery among its fault grounds, alongside unreasonable behaviour, desertion and a separation ground. A 2025 consultation considered moving to no-fault divorce, but a 2026 press report said a bill was not expected before the 2027 Assembly elections.