We have seen that adultery is one of the ways of proving that a marriage has irretrievably broken down for the purpose of divorce proceedings, but what is adultery, and how do you prove it?
‘Adultery’ means voluntary sexual intercourse between a man and a woman who are not married to one another, but at least one of them is a married person. Note in particular that it does not just mean having a relationship with another person, although that may well amount to unreasonable behaviour. Note also that a sexual relationship between two persons of the same sex cannot be adultery for the purposes of divorce.
The party taking divorce proceedings (the ‘petitioner’) must prove both that other party (the ‘respondent’) has committed adultery and that they find it intolerable to live with the respondent, although the court does not normally enquire into the latter, accepting the petitioner’s statement in the petition that they find it intolerable to live with the respondent.
Adultery is normally proved by an admission from the respondent, but may also be proved, for example, by evidence that the respondent has parented a child of which the petitioner is not the other parent, or by a finding in other court proceedings, such as a decree in previous judicial separation proceedings, granted by reference to the respondent’s adultery.
Simply living with another person is not proof of adultery with that person, but may amount to circumstantial evidence of adultery.
If you can only prove the adultery by an admission from the respondent, then obviously you will need to obtain the admission (preferably in writing) before starting the divorce proceedings. If the respondent is not prepared to admit the adultery then, as indicated above, the fact that they have formed a relationship with another person may amount to unreasonable behaviour.
You are not entitled to rely on adultery committed by the respondent if, after it became known to you that the respondent had committed that adultery, you and the respondent have lived with each other for a period exceeding, or periods together exceeding, six months.
You do not have to name the person with whom the respondent committed adultery (the ‘co-respondent’), and it is generally best not to do so, unless you want to ask the court to order the co-respondent to pay your costs.
If you require further information regarding divorce, Family Law Café can help. To contact us click the Contact link above and fill in the form, or call us on 020 3904 0506.
Image: Christ and the Woman Taken in Adultery, by Giovanni Domenico Tiepolo.