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Divorce and the cheating spouse: How should you proceed?

View profile for Nina Lake
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The five facts which you may rely upon as the reason for your divorce are:

– adultery

– unreasonable behaviour of your spouse

– 2 years separation with the consent of your spouse

– 5 years separation

– desertion

If you are the Petitioner in divorce proceedings (meaning the person who is filing the divorce petition) then it is important to consider whether your spouse is going to agree to the contents of the divorce petition.

If you suspect that your spouse has committed adultery then it might be very tempting to rely on the adultery ground in the divorce petition. You might even want to “name and shame” the person with whom you suspect your spouse has been having an affair with and provide details of what actually took place. Unfortunately difficulties can arise if this stance is taken.

Firstly, the definition of adultery in divorce proceedings is quite specific and can only be relied upon if there has been voluntary sexual intercourse between a man and a woman who are not married to each other but one or both of whom is or are married. Sexual intercourse must also involve penetration of the woman’s vagina by the man’s penis, however slight. Other sexual acts would not amount to adultery in divorce proceedings and neither would sex with someone of the same gender, as it must involve a man and a woman. It is therefore firstly necessary to establish whether adultery in the eyes of divorce law has in fact taken place.

Secondly, you should consider what your spouse’s stance will be to the divorce being based on their alleged adultery. If your spouse has not or is not willing to admit to the adultery which you suspect has taken place then you may find yourself quickly embroiled in contested divorce proceedings. These often prove to increase legal costs substantially, cause a lot of stress and delay proceedings significantly. Just because your spouse is not willing to accept a petition based on their adultery, it does not mean that some sort of compromise could not be agreed. For example, it could be agreed that you will proceed with the divorce on the basis on their unreasonable behaviour, citing within the divorce petition your suspicion that adultery may have taken place. It is advisable to try and avoid contested divorce proceedings, if at all possible.

If your spouse has admitted the adultery and is agreeable to you proceeding to issue a divorce petition based on their adultery the next thing to consider is whether or not to name and shame the third party to the adultery. This may seem like a good idea and you may feel some form of justice in having the name of the person who was part of the cause of the breakdown of your marriage recorded on a formal document, however my advice in doing this is quite simply, don’t. Introducing a third party to proceedings creates a very high risk of complicating matters. This can again cause significant delays in getting your divorce finalised which in turn can have a real impact on your legal costs. In addition the Court tends to frown on people naming the other party to adultery so it really is not worth the time, money and effort in dragging someone else into your divorce proceedings.

In order to obtain a divorce as quickly, cheaply and with as less stress as possible, try and keep things calm and simple. Although easier said than done, keeping emotions at bay and proceeding as amicably as possible (where possible) is always the best stance.