In November this year, myself and a group of members from Resolution will be travelling to the Houses of Parliament to lobby for changes to the law regarding the grounds for divorce.
In summary, there is only one ground for divorce – that the marriage has irretrievably broken down. You then have to ‘prove’ this to the court by one of 5 ‘facts’:
- Unreasonable behaviour
- 2 years separation with consent
- 5 years separation without consent
In this blog, I will look at the first ground above and the third most common ground to be used on the petition – Adultery.
Like many areas of divorce, the law is lagging behind here:
Question: Which of the following circumstances for this long suffering wife, would she be able to use the ground of adultery for her divorce
She finds out that:
- Her husband has arranged to meet another woman through an online affair website
- Her husband has been sending naked pictures of himself to another women
- Her husband drunkenly kissed a co-worker at the office party
- Her husband slept with one of her bridesmaids the night before their wedding
- Her husband paid for oral sex from an escort
- Her husband had sex with another man whilst on holiday
- Her husband had an affair with another women, which she found out about when it ended 8 months ago and whilst they have tried to make it work she now wants a divorce
So, which of the above scenarios could you use to prove to the court the grounds for adultery? The answer, surprisingly, is none of them.
For the ground of adultery to be used, your husband or wife must have had sexual intercourse with a person of the opposite sex. The act must have taken place whilst you were married, and you must have petitioned for divorce within 6 months of finding out, otherwise you are believed to have condoned it.
The law is even more complicated when it comes to same sex marriages, but we will save that for another post.
Conversely, we have helped a couple, who separated 18 months ago prior to contacting us, both had recently found new partners and had moved on. They were good friends still, but wanted to get divorced. They certainly could not think of any examples of unreasonable behavior, so they were shocked to learn their only ground for divorce was adultery. They actually flipped a coin to see who would petition and who would respond.
It is cases like the above where the law needs to change to allow grown up people to decide they no longer wish to be married and just get a divorce together. It is far, far easier to get married in England & Wales than it is to get a divorce.
Many people want to name the third party in a divorce petition, but hardly anyone does this now and the court take a dim view of it. It is certainly not something we recommend.
So, to the big question. “By admitting adultery, am I likely to get a worse financial agreement or spend less time with my children than I would have done had we used a different ground. The answer is a resounding “No”.
Clients have contacted us with detailed proof of their spouse’s adultery, diaries of their movements, hotel receipts and emails. But none of this will affect the discussions around division of the assets or parenting arrangements. The court will certainly not let it affect their view and therefore we, and you, should not either. However difficult or unfair that may seem.
Divorce Friend works with both parties to agree the grounds for divorce, that will be acceptable to the court and acceptable to each of you. We can help you agree a financial agreement and parenting plan that is fair and allows you both to move on. If you cannot agree, we can instruct a barrister to write an independent report of what they believe a court would order for your case. The grounds for divorce are important as without accurate grounds, your divorce petition will be rejected by the court, but when it comes to decisions on finances or parenting, they really do not matter.
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