Is sexting adultery? The legal viewpoint

With the increase in use of social media and the accessibility of these platforms through online apps on mobile phones, tablets and laptops, such as WhatsApp, Instagram and Facebook, it has never been easier for people to interact. Sexting, the virtual adultery, occurs when someone sends or receives a sexually explicit text, image or video on their mobile phone or electronic device.

Sexting is a much talked about topic of late, brought to the forefront by a number of celebrities who have been caught publically sexting outside of their marriage.

But is sexting actually ‘cheating’? Automatically you may think ‘of course it is’ but during a recent online survey of 2150 men and women, 8% admitted to sexting, with 35% believing that to sext did not amount to cheating!

So is virtual adultery the same as physical adultery? If you wish to apply for a divorce on the grounds of adultery, sexting will not satisfy the criteria.

To establish adultery, one must be able to show that their spouse has had extramarital sex with a person of the opposite sex (note that the law is still yet to be extended to include ‘a person of the same sex’). Anything that falls short of that definition is not enough to establish adultery.

However, spouses should be aware that just because sexting does not technically fall into the definition of adultery does not mean that it can not be included in the divorce petition.

It will be interesting to see if the Courts rule on this topic and if the law will change to extend the definition of adultery to include virtual adultery. I am sure this is a long way off, yet no doubt it will be a hot topic of conversation going forward.

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