Divorce, Dissolution and Adultery

As a family law solicitor, I am often asked to draft a divorce petition based the spouse committing adultery. Adultery is one of the five reasons for a divorce. The other four reasons being'Unreasonable behaviour’, two years separation with consent, five years separation and desertion. Whichever is pleaded must be the reason for the marriage irretrievably breaking down.

If a client can prove the adultery or if the spouse is prepared to admit the adultery, I will advise that a petition be filed. Difficulty will arise when a client insists on an adultery petition being filed without sufficient evidence and further, insists on naming the person with whom the spouse has committed adultery. Firstly, if you cannot prove the adultery, the spouse is likely to deny the allegation. Secondly, naming the co respondent means that the co respondent must co operate in the proceedings. That person may still be in a marriage or may have other reasons for not wanting to co operate. The end result is a hostile situation with increased legal costs in chasing responses. A client is then forced to withdraw the adultery petition and start again pleading another reason.

The other reason is likley to be ‘unreasonable behaviour’ (if the client wasn’t willing to wait 2 or 5 years). An unreasonable behaviour petition may include many allegations including the spouse having 'relations’ with anon. I understand that where adultery is the real and only reason for the marriage breakdown, a client would want to plead it regardless and take the chance of the spouse denying the allegation. This is perfectly understandable. Often, it is a desire for the purposes of closure rather than revenge. It is the client’s choice on how he/she is better able to move on from the breakdown of the marriage.

When the Civil Partnerships Act was first introduced, I noticed that adultery was not available as a fact for a same sex party to plead within civil dissolution proceedings (gay and lesbian equivalent of divorce). When I raised this as an issue, I was told that my thinking was regressive and that if asked, most gay and lesbian people would not want the otpion of pleaeding adultery. Is that really the case?

The Civil Partnerships Act is legislation long overdue but wasn’t the purpose of the legislation to create equality between same sex couples and heterosexual couples? If adultery is regressive for same sex couples, surely it is regressive for all and therefore, shouldn’t the Matrimonial Causes Act be amended accordingly? Not being able to perfect the definition of adultery is no excuse. Is this discrimination through the back door?

Best regards, Harjit Sarang

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