This article was first published in Private Client Adviser on 19 August 2015 and is reproduced by kind permission.
Is monogamy dead? The founder of Ashley Madison certainly thinks so. But is finding that your spouse has an account on a website dedicated to facilitating extramarital affairs enough to get a divorce?
'Life is short. Have an affair.' This is easily one of the most depressing slogans ever utilised, no? Hardly a surprise then, that there hasn't been a great deal of sympathy flying about for the 'morally corrupt' members of Ashley Madison over the past few weeks, since the hacker group, Impact Team, threatened to release their personal details and thus expose their adulterous behaviour.
Ashley Madison claims to have 37 million members worldwide, statistics which have been questioned (and in some instances disproved) over recent weeks as being somewhat exaggerated.
Monogamy is dead
Inflation of membership figures may be the site's own attempt to assuage the consciences of its existing customers, and simultaneously attract prospective ones to join the party. Certainly such figures would seem to indicate that everyone is cheating on their spouse, thus substantiating the website founder's claim that 'monogamy is dead'.
Some studies on this subject have suggested that 60 per cent of men and 45 per cent of women will be unfaithful at some point in their marriages. These are not insignificant numbers and are fairly dispiriting even when you take into account the range of possibilities in between the one-off lapse of judgment, and the full blown 'double life' affair.
I am sure most people would assume that as a family solicitor, I should be rubbing my hands in merciless and unadulterated glee (tenuous pun intended) at the prospect of 2.4 million potential divorces looming on the horizon, if the hackers follow through with their threats - an estimate based on Ashley Madison's claim of facilitating the extra-marital affairs of 1.2 million people in the UK.
I can't say the link didn't cross my mind, but just in the way I am hopeful that medical professionals don't pray for terrible accidents, I derive no satisfaction from hearing about the end of a marriage, however it comes about.
Instead, I like to think of my role as one that is necessary as a result of the sad realities associated with the foibles of human nature; supporting people through the aftermath rather than taking pleasure in the event.
I have said before that I believe one of the most difficult aspects of being a family solicitor is having to manage your clients' expectations in terms of how they think the law should operate, versus how it actually applies to their situation. This is most difficult when one party to a divorce feels especially morally wronged.
When using adultery as a reason for obtaining a divorce, the court discourages the naming of the co-respondent in proceedings, something that a freshly-jilted party is often very keen to do.
Understandably, people also often find it difficult to grasp the fact that not only is the court rarely interested in an exercise of 'who did what to whom', but that your spouse's immoral behaviour does not alter the outcome of financial proceedings on divorce in your favour, except in very exceptional circumstances (i.e. attempted murder).
Enough evidence for a divorce?
An interesting question that came out of the Ashley Madison headlines for me, was whether discovering your spouse's details were registered to the site would be substantive enough evidence to obtain a divorce on the basis of their adultery, which is a fairly high threshold to cross.
My feeling would be that it would not suffice, because unless people possess categorical evidence of adultery having taken place, i.e. a wife giving birth to a child that is not her husband's or an admission from a spouse, then it cannot be easily relied on as a basis for obtaining a divorce.
Rather, people who can't provide the requisite evidence will instead rely on the fact of their spouse's 'unreasonable behaviour', citing belief/knowledge of an 'improper association' with a third party.
Interestingly a tangential issue to this has received a fair amount of media attention recently, by virtue of a case where a woman discovered her husband had had a number of sexual relationships with other men, and was outraged to discover that this did not fall within the remit of adulterous behaviour for the purposes of obtaining a divorce. Another good example of when the law does not tally with clients' personal expectations.
Ashley Madison argues that it doesn't encourage adulterous behaviour, but instead provides 'a safe alternative' to having an affair close to home that would be more easily discovered (oh the irony).
I would argue that the safe alternative to the ultimate betrayal of your trusting spouse would be to address your own issues, the problems in your marriage and failing all else, calling time on what is clearly a relationship you are not and cannot invest in for whatever reason.
It is true that adultery is hardly a new phenomenon, but although sites like Ashley Madison may not actually force someone's hand, or even at best, do anything more than cater for something which would have happened in any event, they undeniably do encourage a self-serving attitude that makes marriage an entirely pointless exercise.
Admittedly the tagline, 'Life is short. Don't be in a relationship if you can't be faithful', isn't very catchy and I doubt it would attract the supposed following Ashley Madison has, but even in my line of work, I am not ready to give up on monogamy and the possibility of enduring and rewarding relationships just yet.