Posted by David Cobern on 10th September 2015

divorceThe Ashley Madison website which offers married individuals the opportunity to meet like-minded people with a view to engaging in illicit extra-marital affairs was recently subject to cyber-attack. The personal details of millions of members were stolen by hackers and published across the internet.

The fallout has been huge. There have been reports of blackmail and suicides linked to these events and a number of lawsuits are apparently threatened by persons affected. There are doubtless many people concerned not merely about the impact on their relationships, but also the legal implications for them if their activities are revealed.

Could an association with the Ashley Madison site be used by a spouse as grounds for divorce?

For the purposes of a petition on the act of adultery, appearing as a name in a list of members of the website hacked from the internet would not in itself be sufficient. To establish adultery, the petitioner must be able to provide evidence of the actual physical act of sex which is obviously much harder to prove in the absence of an admission.

Without an admission, it is difficult to obtain a decree on the fact of adultery. The petitioner may be able to obtain a decree by producing evidence of ‘opportunity and inclination’ to commit adultery; what used to be known as the ‘Hotel Cases’ where the parties to the act are seen entering and leaving a hotel overnight or where some documentation (such as illicit love letters) reveals their activities together.

Being a member of a dating website is certainly sufficient to form the basis for an unreasonable behaviour divorce petition, but may not suffice on its own, in the absence of other behaviour.

A Respondent to a petition alleging unreasonable behaviour or adultery may claim to have been an innocent victim of the hacking or to have joined because they were bored or curious, but with no intention to take matters further. If they were not active participants in the site looking for or actually meeting someone for an adulterous liaison, the mere fact that their name and e-mail address appears on the list of hacked details would not therefore be sufficient on its own to obtain a divorce for adultery and probably not sufficient for an unreasonable behaviour petition either.

What are the implications of the Internet for relationships?

There is no doubt that the expansion of access to the internet has changed the landscape of relationships the world over. The opportunities to socialise (and more) using this technology are infinitely greater now than they were say twenty five years ago. The market has been swift to adapt to this with the advent of services such as Facebook, Twitter, Instagram, WhatsApp and now sites such as Grinder, Tinder and Uniform Dating which are aimed specifically at those looking for relationships. Ashley Madison is simply the latest (and some would say most cynical) development in this market driven trend.

Inappropriate associations or actual physical relationships formed through the internet feature very significantly as a reason for marriage breakdown in the modern age. However, in making it easier to form such relationships, the internet has also made it easier to be caught in the act. There are many clients who complain of their partner’s excessive, secretive internet use and sudden introduction of a password in what is usually a vain attempt to cover up their attempts at infidelity. Many more use technology to entrap their partner, such as GPS tracking and spyware.

The modern age of the internet is therefore not just a blessing, but also a curse; one which can mercilessly expose and hasten the end of an unhappy marriage. Leaving aside the law for a moment, I suggest that if you find yourself a mouse click away from one of these websites with thoughts of adventure or if you believe your spouse to be doing so, take stock and remember openness and communication is the key to a successful relationship, while secretiveness (particularly about something like this) is extremely damaging.

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