For many, the concept of the popular TV series 'The Traitors' needs no explanation but for those who may have missed it, worry not, I shall enlighten you. A group of contestants are divided, with some being appointed "Traitors" and the others "Faithfuls". The goal of the Traitors is to, through a series of challenges, missions and tense daily discussions at the Round Table, eliminate the Faithfuls to claim the prize for themselves. If, however, the Faithfuls successfully eliminate all the Traitors, they will share in the prize fund.

The programme has been a huge talking point, with friends, families and couples discussing amongst themselves how they would fair. Would they be better placed to take on the role of the ever-Faithful or the deceitful-Traitor?

Being unfaithful – impact on finances

Generally, under Scots family law, cheating or being unfaithful is not a relevant factor when dividing up the matrimonial assets and liabilities. The Family Law (Scotland) Act 1985 has been designed to ensure that the value of the matrimonial 'pot' is shared fairly between the parties. The starting point is that a 'fair share' is an 'equal share'. The legislation goes on to state that a party's conduct should not be taken into account unless it would be manifestly inequitable to leave it out of account or unless the conduct has specifically affected the financial resources of the parties. Generally, this means that the adulterous action of one spouse are not taken into account when considering the fair division, resulting in the 'you cheated so I get it all' thought process is, in most cases, inaccurate.

There is an exception to that, the most significant being when behaviour, such as the act of adultery, has led to the dissipation of matrimonial property. Dissipation has been stated by the courts as being "a waste or loss of matrimonial funds which cannot be traced or which is not represented by a replacement asset. Excessive spending grossly out of proportion to the resources within the matrimonial commonwealth or monies lost by gambling might be examples of "dissipation". (Lady Wolffe in the case of G v G (2016 SCOH 32)).

Examples of dissipation under the umbrella of 'adultery' could include a spouse financially supporting the new paramour, paying for lavish holidays, getaways or jewellery and/or secretly paying child support or educational costs for any children resulting from the adulterous relationship.

Being unfaithful – divorce

Whereas 'fault' does not normally affect the division of the matrimonial 'pot', where it does have an impact is on the timings of an application for divorce. In Scotland, there is only one ground for divorce which is the "irretrievable breakdown of the marriage". That breakdown can be evidenced in 4 different ways:

  1. A party to a marriage has committed adultery;
  2. A party to a marriage has behaved unreasonably;
  3. A married couple have been separated for more than 1 year and both wish to divorce;
  4. A married couple have been separated for more than 2 years (the consent of the other party is not required).

Scenarios 3 and 4 are clearly time sensitive but divorces under scenarios 1 and 2 can be raised immediately. Therefore, if there has been adultery (which it should be noted is notoriously difficult to prove and undoubtedly gives rise to further acrimony and cost) or unreasonable behaviour, the divorce process can begin much sooner. I tend to advise clients to wait and raise divorce proceedings under scenarios 3 and 4 but occasionally there are compelling reasons, such as domestic abuse or the preservation of assets to prevent further dissipation, which justify proceeding on one of those grounds.

The Traitors was gripping viewing, an excellent guessing game and an interesting insight into human psychology. Whilst being a traitor may have seen you eliminated in the TV programme, such unfaithful behaviour will not have such high consequences in the game of divorce.

If you find yourself going through a separation or needing advice on any family law matter, the Brodies' family law team is here to help.


Kate Bradbury