Some people don’t count these affairs as cheating and others do. With no physical relationship in an emotional affair, how do family lawyers view it and is it grounds for a divorce? We find out from Frances Bentley.

There’s been a lot of focus recently on emotional affairs and what they mean. Some people believe it doesn’t count as cheating because there is no physical relationship with somebody else. Others think it’s worse because that person is becoming emotionally reliant on somebody else, rather than their own partner or spouse. An emotional affair is a bond between two people which mimics or matches the closeness of a romantic relationship but isn’t physical. A survey completed in the USA concluded that 35% of women and 45% of men had admitted having an emotional affair before.

Why Do Emotional Affairs Happen In The First Place?

It does raise a question as to whether there is a wider problem within the marriage. There could have been a breakdown in communication, it could be the result of not spending enough time together, or there could be a general lack of happiness within a marriage. Recent reports have looked at emotional affairs and asked people to comment on their experiences.

They said:

“It’s now been 6 months and I love him.”

“My emotional affair is coming to an end after 2 years. I am feeling sad and pensive.”

“I miss my emotional affair now that it’s gone…I feel so alone.”

It’s clear that an emotional affair can put incredible strains on a marriage,
and even lead to marriage breakdown leading to divorce.

What About Divorce & The Law?

Before the divorce law changed in April 2022, as family lawyers we saw clients who thought that their partner having an emotional affair constituted ‘adultery’ – to them, their spouse having an emotional relationship with someone else had caused their marriage to break down.

However, under the old law an affair could only count as adultery if there had been a sexual relationship and if that sexual relationship was with a person of the opposite sex. This was sometimes a devastating discovery for both individuals whose partner had an emotional affair or had engaged in a same sex sexual relationship. The law came under
fire for being completely outdated (and rightly so). We had to advise
our clients that rather than the affair being labelled as adultery, they would have to rely on it being ‘unreasonable behaviour’ but understandably to them it didn’t feel like it carried the same recognition of the affair that had caused the marriage breakdown.

Adultery and unreasonable behaviour petitions were plagued with issues; more often than not it would result in the other party refusing to accept or admit the behaviour, toing and froing on the wording of divorce petitions, animosity and a feeling of complete lack of control for the person applying.

In April 2022 the old divorce law was completely abolished!
A person applying for a divorce now needs to simply confirm within the divorce application that the marriage has ‘irretrievably broken down’ – there’s no need to worry about the other person refusing to accept the behaviour happened or refusing to admit it.

Although the new divorce application doesn’t require an explanation of what caused the marriage breakdown, the law being simplified now means that individuals who have been on the other side of any affair (whether that be an emotional affair or a physical affair) can relatively simply make a divorce application. It now allows them an element of control over the divorce process which for many was much needed.