This article was authored by Alexandra Tribe .
It is a common misconception that adultery is a ground for divorce in and of itself. This is not actually the case. There is only one ground for a divorce, and that is that the marriage has irretrievably broken down. However, the court cannot make a finding of irretrievable breakdown unless it is satisfied that one of five facts has been proved.
Those five facts are:
- the respondent has committed adultery and the petitioner finds it intolerable to live with the respondent;
- the respondent has behaved in such a way that the petitioner cannot reasonably be expected to live with the respondent;
- the respondent has deserted the petitioner for a continuous period of at least two years immediately preceding the presentation of the petition;
- the parties have lived apart for a continuous period of at least two years immediately preceding the presentation of the petition and the respondent consents to a decree being granted; and
- the parties have lived apart for a continuous period of at least five years immediately preceding the presentation of the petition.
Where the cause is undefended, the court will generally accept the statements in the petition and will not question that the marriage has irretrievably broken down. Whereas if the respondent defends the petition, the court will then inquire as to the truthfulness of the allegations and seek proof.
The fact of adultery
When relying on the fact of adultery, the person applying for the divorce (known as the petitioner) has to show two things:
- That their spouse (known as the respondent) has committed adultery; AND
Definition of adultery in the context of a petition for divorce: the voluntary sexual intercourse between a man and a woman who are not married to each other but at least one of whom is a married person.
Despite the evolution of our laws in recent years to recognise same sex marriages, at present this has not been extended into our divorce laws. The law states that only conduct between the respondent and a person of the opposite sex may constitute adultery for the purposes of divorce.
Sexual intercourse is required, attempts to commit adultery do not amount to adultery, but may be pleaded as unreasonable behaviour in the context of an 'improper association'.
Adultery must be consensual. Once sexual intercourse is proven, the onus is on the respondent to show that it was not consensual if that is the case.
- That the petitioner finds it intolerable to live with the respondent as a result of the adultery.
This second aspect is extremely important as simply proving that the respondent has committed adultery is not sufficient to satisfy the test of irretrievable breakdown of the marriage. The petitioner must find it intolerable to continue living with the respondent as a result of the adultery.
If the petitioner continues to live with the respondent for more than 6 months after becoming aware of the adultery, then the petitioner is no longer able to rely on this fact. As an alternative, the petitioner would need to petition for divorce using the fact of unreasonable behaviour. If the parties continue to live together for an aggregated period of less than 6 months, then this will be disregarded and the petition for divorce will be allowed to proceed.
For this purpose, adultery refers to one act of adultery. Therefore, where the adultery continues, time will not run until the last act of adultery. The petitioner must have knowledge of the adultery; mere suspicion is not enough.
The Third Party
Discovering that your spouse has committed adultery is understandably a very difficult time and it is quite natural to place an element of blame on the person with whom the respondent had the affair. Despite this, it is common practice and it is strongly advised that the third party should not be named in the divorce petition, unless the petitioner believes the respondent is likely to defend the proceedings. Where it is necessary to name the person with whom it is alleged that the respondent has committed adultery, that named person will be the co-respondent.
Beware of Costs
In divorce proceedings, it is not guaranteed that the respondent will pay for the costs incurred. This is something which the petitioner has to apply for, and will not always be granted. However, when relying on a "fault based" fact to support the ground for divorce, i.e. adultery, unreasonable behaviour or desertion, then in practice it is usual for district judges to consider making an order for costs in favour of a successful petitioner. It is worth noting though, that this can be displaced by objections from the respondent to show that such an order would be unfair.
The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances. For any further queries or follow up please contact Expatriate Law at info@expatriatelaw.com.
