When a relationship breaks down because of an emotional affair, the legal consequences that follow can be unclear for parties. From a Scottish family law perspective, the focus is not on moral blame, but on whether the marriage has irretrievably broken down and how financial and child-related matters should be resolved.

The legal framework: divorce in Scotland

The legislation governing divorce in Scotland is the Divorce (Scotland) Act 1976. Under the 1976 Act, the court may grant a decree of divorce if the marriage has broken down irretrievably. Irretrievable breakdown can be established by proving either:

  • Adultery on the part of the other spouse
  • Unreasonable behaviour on the part of the other spouse
  • There has been no cohabitation between the parties for a period of one year after the date of separation (and the other spouse consents to divorce)
  • There has been no cohabitation between the parties for a period of two years after the date of separation.

Crucially, an emotional affair does not meet the legal definition of adultery, which requires voluntary sexual intercourse between a spouse and a third party (known as a paramour). Therefore, emotional infidelity is not sufficient to establish adultery as a basis upon which to establish irretrievable breakdown of a marriage when looking to raise divorce proceedings in Scotland.

Emotional affairs and unreasonable behaviour

However, if one party to a marriage wishes to raise divorce proceedings and wants to rely upon their spouses’ emotional affair with a third party, another option may be to seek to raise divorce proceedings on the basis of their spouse’s unreasonable behaviour.

The Divorce (Scotland) Act 1976 at section 1(2)(b) provides, “(1) In an action for divorce the court may grant decree of divorce if, but only if, it is established in accordance with the following provisions of this Act that—(a) The marriage has broken down irretrievably; (2) The irretrievable breakdown of a marriage shall, subject to the following provisions of this Act, be taken to be established in an action for divorce if —…(b) since the date of the marriage the defender has at any time behaved (whether or not as a result of mental abnormality and whether such behaviour has been active or passive) in such a way that the pursuer cannot reasonably be expected to cohabit with the defender." It does not, however, specify exactly what constitutes unreasonable behaviour. Lady Wise in M v N [2021] CSOH 60 asserted that, “The statutory test requires an assessment of what is reasonable for the parties taking into account their particular circumstances. It is clear from the words "...at any time" that behaviour postdating the parties’ separation may be relevant.“ The court will therefore assess whether a reasonable person would conclude that the behaviour has made continued married life intolerable.

It is therefore reasonable to surmise that if one spouse forms an intense emotional attachment outside the marriage, which may involve secrecy, sustained messaging, prioritising the third party over the spouse, or withdrawing emotionally from the relationship, this may amount to conduct considered to be so unreasonable as to be sufficient to establish that the marriage has broken down irretrievably.

Financial provision: does emotional infidelity affect settlement?

Financial claims on divorce in Scotland are primarily governed by the Family Law (Scotland) Act 1985. Financial settlements are not designed to punish unreasonable behaviour such as emotional infidelity. The principle of the 1985 Act is that matrimonial property shall be shared fairly between the parties. The focus is on:

  • Identifying “matrimonial property”
  • Valuing it at the date of separation
  • Achieving fair sharing (often equal division)

Conduct, including emotional affairs, is generally therefore irrelevant to financial division unless it has had a clear financial impact, for example:

  • Dissipating matrimonial assets on the third party
  • Recklessly spending joint funds
  • Incurring significant debts connected to the affair

Child contact and residence

If children are involved, decisions about contact and residence are guided by the welfare principle under s.11(7)(a) of the Children (Scotland) Act 1995. The primary consideration is always that the welfare of the child is paramount. An emotional affair will not affect the parental rights or responsibilities of a parent. However, related behaviour may become relevant if it impacts the child’s wellbeing, for example neglecting parental responsibilities or exposing children to conflict.

While having an emotional affair may have consequences in establishing the ground of divorce in Scotland, those engaging in emotional affairs will not be held accountable for the said affair in terms of the division of the matrimonial property upon separation or in respect of the parental rights and responsibilities of children.

If you require advice on the issues discussed in this article, please get in touch with our family lawyers.

Contributors

Sarah Lilley

Partner

Eildh McRitchie-Conacher

Associate