Should I name the other person in my adultery petition?

can I name the other person in my adultery petition

Should I name the other person in my adultery petition?

This is a question we are often asked when a client first comes to us to talk about filing for divorce. Often that client is feeling angry and hurt.

Georgia Smith take a look at this challenging issue.

In simple terms, the divorce petition effectively sets out the petitioner’s reasons as to why the marriage has irretrievably broken down. In cases of adultery, it may be perceived that a third party is the sole reason for the breakdown, which is why the question “should I name the person who my partner committed adultery with in my petition?” is asked.

The straightforward answer is no.

It is not normally in your best interests to name the other man or woman in your divorce petition, even if you are divorcing on the sole basis of adultery. This advice can be a tough pill to swallow for most, who understandably wish to allocate blame after experiencing such feelings of hurt and betrayal.

It is usually enough for the petitioner (the person making the application for divorce) to provide the particulars of when the adultery took place and whether that relationship is ongoing. The respondent will then be served with a copy of the petition and will be asked to complete an acknowledgement of service form, which will ask if they admit to the adultery. Alternatively, your solicitor may request that the respondent complete a confession statement.

However, it may be the case that the respondent refuses to admit the adultery and the petitioner will have to prove the fact on a balance of probabilities.

What if I name the co-respondent?

Naming a third party in your divorce petition will make that person a co-respondent to your divorce. In practice, it is very rare for this to happen, as the Family Procedure Rules 2010 state that the third party should not be named unless the petitioner believes the respondent will contest the proceedings.

Significantly, naming a co-respondent could delay matters, as the third party will be served a copy of the petition and will be asked to fill out a form in response. If that third party proceeds to instruct a solicitor, your costs will only increase.

It is often wrongly assumed that adultery will be taken into consideration by the Court when determining financial settlement. This is not the case, and the judge can often take a dim view of a spouse who insists on naming a co-respondent.

In reality, naming a co-respondent only increases contention and may even cause the respondent to decide to defend the divorce. The urge to ‘name and shame’ can be short-lived and the real victory is in obtaining an amicable and swift divorce.

If you are affected by any of the issues outlined here, please get in touch today. We are here to help.

Does adultery make a difference to your divorce settlement?

adultery and divorce

Does adultery make a difference to your divorce settlement?

Sometimes a client comes into our offices, extremely upset as their marriage has broken down because their other half has found someone else and wants to start their life afresh with them. Sometimes that new client wants “revenge” and sees the possibility of punishing, financially, their soon-to-be-ex-spouse through the ensuing divorce.

By and large the court is not interested in why the marriage is ending

In fact, one of the most common assumptions around divorce is that there will be a financial impact if one partner has had an affair and left the marriage as a result. But this rarely makes any difference to the overall division of assets, because when it comes to money, by and large the court is not interested in why the marriage is ending, but rather what resources each party has available, and how they are to be divided fairly.

Does adultery count against me during my divorce?

No, it doesn’t.  It is one of the myths around divorce that the unfaithful party should be treated more harshly, but a marriage breaks down for many reasons and is rarely attributable only to one person’s actions.  There may be multiple problems already present in the relationship which has led one party to commit adultery, and judges understand this. In the eyes of the Court, determining how the matrimonial assets should be divided is based entirely on fairness.

In practice, this means that should you commit adultery and this is the cause of the irretrievable breakdown of the marriage, you are unlikely to receive a less favourable financial outcome because of this, nor will the person who did not commit adultery achieve a more favourable one.

The Court is under a duty to consider all the circumstances of the case and in particular the Section 25 Factors, and apply these to the facts of the particular case. The starting point when it comes to division of assets is 50/50 and the court is able to apply an element of discretion as to the award.  No two cases are identical.

The courts are not there to judge you and your marriage

It’s also worth bearing in mind that adultery in and of itself is not quite enough from a legal perspective to sue for divorce. If you want to divorce your spouse on the grounds of adultery, you must also state that you find it “intolerable” to continue living with your spouse.  Ask yourself if the adultery is the sole reason for that situation. It may only be the last, the very final, stage in the collapse of the marriage.

Finally, here’s something worth bearing in mind.  There is a six month time limit from finding out about the adultery – wait any longer than that to petition for divorce, and the family courts will take it as read that you didn’t find the adultery intolerable at all.  And despite television programmes and films encouraging us all to think you have to obtain proof of adultery and be able to name the other person, you don’t.  If your spouse won’t admit the adultery, then you can proceed on the basis of unreasonable behaviour instead.

Remember: no matter how betrayed, or how guilty, you feel, infidelity is not against the law and the courts are not there to judge you and your marriage.  They are there to try and reach as fair an outcome as possible and to ensure the welfare of any children you have with your soon-to-be-ex.  It’s different if truly appalling behaviour has taken place – domestic violence for example – but thankfully such extremes do not affect most divorcing couples.

If you are affected by any of the issues outlined here, please get in touch today. We are here to help.

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