Twitter is in a flap over the so-called homewrecker penguin video. It shows a male penguin coming home to find he is not only being cuckolded by his wife, but despite engaging in a bloody battle that dispels any warm and fuzzy feelings you may have felt towards penguins after viewing Happy Feet – his missus decided to side with the homewrecker!

If only Jeremy Kyle could have been there to intervene. Things may have turned out differently for the humiliated and defeated husband. Although, after watching the footage, I doubt Mr Kyle’s security team would be any match for the enraged husband who completely ‘flips’ and the brazen interloper who has no intention of slinking off quietly.

Many who have been in the position of the penguin husband, having caught their spouse cheating, may be wondering; in the real world, does doing the dirty on your beloved make any difference to the outcome of the financial settlement?

Or is all truly fair in love and divorce?

Adultery and divorce law

Under English law, divorce can only be obtained on the grounds that the marriage has irretrievably broken down and this can be proved by citing one of five facts in the divorce petition, which includes adultery.

Historically, the law has punished the crime of adultery heavily, especially if the adulterer was a woman. For example, Nezahualcoyotl’s Law Code (circa 1431) stated that those who committed adultery in the Aztec kingdom should be, “flattened by a large and heavy stone”.

The code goes on to say, “if the adulterers had killed their spouses, then the male should be burned to death and the female hanged.”

In ancient Egypt, men who committed adultery with a married woman could face 1000 stokes with a stick. A woman who played around behind her husband’s back would have her nose cut off so her looks were ruined and she could not run off again.

After watching the penguins fight it out hammer and tongs (the video has been retweeted more than 240,000 times, and liked almost 300,000 times), I have a feeling hubby penguin would agree wholeheartedly with some of these solutions for dealing with a homewrecker.

England has always been a bit more liberal regarding its attitude to cheating spouses. In late medieval times, if a woman was caught committing adultery, her nose and ears were cut off and she was paraded through town, whereas the man she was committing the act with was merely exiled. Not exactly fair, but there you go.

Adultery and division of marital property

“Don’t get mad, get everything”. Those are the immortal words of Ivanka Trump, poster-girl for the first-wives club whose membership consists of the wives of self-made men, who having given up their careers to support their husband’s becoming rich, are unceremoniously dumped for younger women when their spouses go through their inevitable mid-life crisis.

But will the fact your husband or wife is a cheating scumbag (hey, we only said what you were thinking), enamour a judge to hand you a larger slice of the wealth and assets you both accumulated together?

I hate to break it to you, but usually the answer is no.

Although a variety of considerations are taken into account by the court when it comes to dividing up matrimonial property and wealth, including income earning capacity, the needs of any children from the marriage and the duration of the union, the conduct of the parties will not be taken into account unless it is such that in the opinion of the Court it would be inequitable to disregard it (section 25 of The Matrimonial Causes Act 1973).

The reality is that when it comes to financial settlements, the best course of action for the victim of adultery is to maintain their dignity and negotiate hard for a settlement based on the factors that will be taken into account by the family court. Tactics such as airing dirty laundry to the media or blaming the other party for destroying your happy home during negotiations or trial will only result in the process being held up and your legal costs increasing.

Moving on

So the answer to the original question – is all fair in love and divorce?; when it comes to the behaviour of the spouses, unless it is so appalling and it would be unequitable for the court not to take it into consideration when dividing up property, the answer is yes.

Like the penguin in the video, your best bet is to walk away with your head held high, shake out your flippers and move on with your life.

Remember, revenge is a dish best service HOT!

Saracens Solicitors is a multi-service law firm based opposite Marble Arch on the North side of Hyde Park in London. We have years of experience representing high-net-worth individuals in divorce proceedings and have the resources and expertise available to achieve swift, fair financial settlements. For more information, please call our office on 020 3588 3500.

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