Adultery can be difficult to prove despite seeming straightforward when filing for divorce. Well, it may seem straightforward if you are the Petitioner and your spouse has run off with somebody else. However, the courts do not look at it with the same clear-cut views.
A recent client petitioned for divorce using adultery as the reason for divorce, but the court declined the petition. His wife would not accept adultery as the reason for their marriage breakdown, despite her giving birth to a child by another man. She had sent her husband a message; she was pregnant with another man’s child. Then after the birth, she posted pictures of the child on social media. Well, any proud mother would, wouldn’t they?
The reasoning for saying this was untrue was; she believes because the marriage had already broken down, there is no adultery. No explaining was going to make this lady change her mind. She felt the law was wrong and I had misinterpreted. I love it how some people live in their world.
As she denied adultery and despite the proof, the court declined the application for divorce.
So what next for the husband?
He now has to resubmit his application at an additional cost of £95 to court using a different reason for the marriage breakdown. The process will now be extended by 4-6 months too.
The reason for divorce is never made public, so refusing to accept the grounds for divorce does not benefit anybody. Maybe pride is restored, but that is all. Nobody will get to see the divorce paperwork other than the court. What is strange, is you can disagree with any statement about unreasonable behaviour and a court will allow a divorce providing the party is not defending the divorce. But not, as would seem, in the case of adultery. The court took her word, despite the evidence of a text, photos, and social media posts.
How to prove adultery
Adultery is defined as your spouse has had sexual intercourse with a member of the opposite sex and you find this behaviour intolerable. Well, who wouldn’t? Due to this definition, adultery cannot be a reason for divorce in same-sex marriages or civil partnerships.
Proving your spouse had sexual intercourse with a member of the opposite sex is very difficult to prove unless there are witnesses.
Adultery can also only cited if you file for divorce within six months of becoming aware of the adultery. If you wait longer than six months, the court assumes you condone the adultery. You also must stop living together. So if you found out today, your spouse had a relationship 20 years ago, you must file within 6 months of discovering it.
Only if your spouse will accept adultery will you succeed using this as a reason for divorce.
Naming the co-respondent
When citing adultery, the divorce application invites you to name the co-respondent (the adulterer). Citing adultery is not always a good idea. Divorce Negotiator will often recommend against naming a co-respondent.
The Courts serve the Acknowledgement of Service on them along with your spouse. If they do not respond to the court, they can hold up the divorce. If you have a financial order, then copies of all your financial documents might be sent to them too. Although you may want to blame another party, it does not benefit you in doing so.
Financial Benefits of Using Adultery
Contrary to popular belief, using adultery will not benefit the Petitioner financially. The court will not take into account the reason for divorce as part of the financial order. So don’t expect a bigger share of the assets because your spouse committed adultery. There is no bearing on children care arrangements. There will always be a primary carer, and an absent parent unless having joint care and control. But this does not go through the courts unless there are problems
If you are concerned about choosing the wrong reason for divorce, please contact Divorce Negotiator for advice on 0800 177 7702