Think twice before citing adultery in divorce proceedings

The wife of celebrity cake baker Paul Hollywood is reported to be in the process of petitioning for divorce on the basis of his adultery, after 15 years of marriage.

There is only one ground for divorce in England and Wales and that is that the marriage has broken down irretrievably.  However the petitioner must prove one of five facts as evidence of irretrievable breakdown.

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Those five facts are:

a)    That the Respondent has committed adultery and the petitioner finds it intolerable to live with the respondent.

b)    That the Respondent has behaved in such a way that the petitioner cannot reasonably be expected to live with the Respondent

c)    That the Respondent has deserted the petitioner for a continuous period of at least two years immediately preceding the presentation of the petition.

d)    That the parties to the marriage 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.

e)    That the parties to the marriage have lived apart for a continuous period of at least five years immediately preceding the petition.

The decision for a petitioner to divorce on the basis of adultery must be taken carefully because in the absence of a confession from the respondent or direct witness evidence of the ‘act’ of adultery, adultery may be difficult to prove as the petitioner would likely have to rely on indirect or circumstantial proof that the adultery had occurred.

In addition the petitioner has to prove that she finds it intolerable to live with the respondent.  In the event that the petitioner lives with the Respondent for a period in excess of six months from discovering the adultery, then they would no longer be able to rely upon that fact in support of a petition for divorce.

In the case of the Hollywoods, it has been reported that the celebrity baker is not contesting the divorce, meaning the court will inevitably grant her a divorce on his adultery.  Had he contested the proceedings and denied the adultery, his wife would have faced an uphill struggle to prove the adultery and would likely have been advised to explore a petition based upon an alternative fact.

One way round this is for the petitioner to cite alternative grounds: adultery and unreasonable behaviour. It is then for the respondent to choose how to complete the acknowledgment of service. The world seems to be divided into those who will admit the adultery but deny any (other) bad behaviour and those who will admit to anything except adultery.

Adultery based petitions are often the most contentious of divorce proceedings, particularly if the co-respondent (the other party to the adulterous relationship) is named in the petition.  Whether Mrs Hollywood intends to name the co-respondent remains to be seen, but it will likely set the tone for acrimonious proceedings which will no doubt continue to be played out in the press. Best advice these days is never to give the name of the co-respondent as it drags him or her into the proceedings, ensures their name is on all documents, means the service of the proceedings upon them has to be proved separately – and a separate admission obtained – all adding to cost and delay.

Claire Cleary, Fisher Meredith

THE AUTHOR:

Claire Cleary is a solicitor at Fisher Meredith.  She specialises in family law, and regularly advises clients on a broad range of family law issues including divorce, cohabitation and property disputes, and also in relation to financial settlements.  Claire also advises clients regarding domestic violence and in relation to contact and residence disputes.

About Claire Cleary

I am a solicitor specialising in family law at Fisher Meredith. I regularly advise clients on a broad range of family law issues including divorce, cohabitation and property disputes, and also in relation to financial settlements. I also advises clients regarding domestic violence and in relation to contact and residence disputes. Fisher Meredith offers a wide range of legal services to individuals, businesses and other commercial organisations. For more information about Fisher Meredith please go to www.fishermeredith.co.uk

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