In this week’s mini blog Simon Walker, Solicitor in the Family Team in the Sherborne office, looks at what happens when unfaithfulness is the primary reason for divorce.
The current law states that any party to a marriage is entitled to file a petition for divorce, on the basis that they believe that the marriage has irretrievably broken down, citing one of the five facts; one of those five facts being adultery. The adultery doesn’t, in itself, need to be the causal link between the fact and the breakdown of the marriage; the fact simply evidences the breakdown.
Case law has defined adultery as “the voluntary sexual intercourse between a man and a woman, who are not married to each other, but one, or both of them, is, or are, married”.
On the basis of the above, adultery is not a fact that can be relied upon by a same sex petitioner, unless the respondent’s sexual intercourse was with a person of the opposite sex.
The difficulty that parties have is the proof that adultery has taken place, or having adultery inferred. The options of achieving proof are to seek a confession statement from the other party or to rely on your circumstantial evidence, which could be the birth of a child.
If the adulterer is not willing to provide you with confession statements, and there is no other circumstantial evidence, then it would then be appropriate to file for a divorce on the basis of the other party’s unreasonable behaviour. This will require you to set out as part of the particulars of the unreasonable behaviour, that your spouse’s engagement with third parties has led you to feel isolated or alone within your relationship.
In relation to any application for divorce, where a fault is cited, it is common for costs to be sought and subsequently ordered by the court. Costs are often negotiated and fixed on the basis of encouraging the other party to engage in proceedings, to enable the divorce, to proceed smoothly and without challenge.
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