Divorce: Relying on Adultery

Adultery is one of the five facts a petitioner can rely on to prove his marriage has broken down irretrievably. Irretrievable breakdown of the marriage is the only ground for divorce and must be proved to start divorce proceedings.

To establish this fact, the petitioner must prove both of the following:

• The respondent has committed adultery; and
• The petitioner finds it intolerable to live with the respondent

What is Adultery?

Adultery is voluntary sexual intercourse between a man and a woman who are not married to each other, but at least one of them is married.

Adultery cannot include same sex couples and therefore cannot be relied upon in an application for the dissolution of a civil partnership unless the sexual intercourse was with a person of the opposite sex.

Proving adultery

Adultery can be proved or inferred from the following:

• A confession of adultery by the respondent.
• Circumstantial evidence, e.g messages, cohabiting or report from an enquiry agent
• Birth of a child to another person

Denial of adultery by the respondent

In practice, if the respondent denies the adultery, it is usually simpler and cheaper for the petitioner to rely on a different fact for divorce, e.g unreasonable behaviour.

Naming the co-respondent

The person with whom the respondent has committed adultery with (the co-respondent) should not usually be named in the petition as this is likely to cause further conflict between the parties. The person should only be named if the petitioner believes the respondent will defend the proceedings.

Intolerability

The test of intolerability is simply that the petitioner has to persuade the court that she/he finds it intolerable to live with the respondent. This is fairly easy to prove if adultery is established.

Beware! Living Together Following Adultery

A petitioner must be careful about relying on adultery if they continue to live with the respondent.

A petitioner can’t rely on adultery if, after the petitioner became aware of the respondent’s adultery, the parties have lived with each other for a period (or periods if added together) in excess of six months.

If the respondent has committed adultery on more than one occasion, the time limit will not start until the petitioner has found out about the last occasion of adultery.

These rules allow the parties a reasonable amount of time to try to reconcile without prejudicing divorce proceedings if the parties find the relationship is irreparable.