In cases of adultery, feelings of betrayal, anger and bitterness are understandable, so the desire to get revenge on an unfaithful spouse by naming the third party in a divorce petition may be tempting.
Here, legal executive and family law specialist Diane Matthews explores divorces based on adultery, and explains why it isn’t a wise idea to name the third party in the divorce petition.
Grounds for divorce
There is only one ground for divorce in England and Wales, which is the irretrievable breakdown of marriage. To be granted a divorce, you must prove this ground by demonstrating one of five facts, one of which is adultery.
The other facts are currently unreasonable behaviour, desertion, separation after two years if both parties agree, or if one does not, then separation after five years. With the introduction of no-fault divorce, this will soon change, and these facts will not need to be demonstrated to qualify for a divorce.
Using adultery to obtain a divorce
To proceed with a divorce petition based on adultery, you must not be the one who had the affair and if you continue to live with your spouse, you must file for divorce within six months of learning about the adulterous behaviour, unless the affair is ongoing.
For a divorce based on adultery to be granted, the person accused of cheating needs to consent to proceedings based on this behaviour, so it’s advisable to contact your spouse prior to preparing the divorce petition to get their consent.
This is because in cases where your spouse is likely to refuse the adultery claim, it’s often quicker, cheaper and less acrimonious to instead cite unreasonable behaviour as the fact.
Naming the third party
While feelings of hurt and betrayal are understandable, as a family law specialist I always advise clients not to name the third party in the divorce petition.
Taking this step is likely to cause acrimony between the divorcing parties, and the Family Law Protocol actively discourages against this unless the person seeking the divorce is pursuing costs against the third party.
These types of claims only tend to run into the hundreds of pounds, while the petitioner’s costs could end up increasing if the third party instructs a solicitor, so the extra costs incurred often outweigh anything gained from the adulterer.
Furthermore, naming them could delay the divorce as they would need to be served with a copy of the divorce petition and requested to complete their own Acknowledgment of Service documentation. If they refuse to return these papers to the court, this could delay matters further.
Minimising acrimony
Naming a third party in a adultery divorce will only help create an atmosphere of acrimony. The goal in proceedings must be to obtain the best outcome for all concerned while retaining individual dignity, particularly in cases where children are involved.
While feelings of betrayal and bitterness are normal in adulterous circumstances – and the idea of revenge by naming the third party may be tempting – it is always advisable to take a sensible, pragmatic course of action in divorce proceedings, with specialist legal advice needed from the outset.
Diane Matthews is a legal executive based at WHN’s Blackburn office who specialises in divorce and separation, including the dissolution of civil partnerships and the associated financial consequences. Diane has experience in the complexities surrounding dividing family run businesses on separation, resolving financial and property disputes for unmarried families, pre-nuptial agreements and cohabitation agreements. To contact Diane, call her on 01254 272640 or email diane.matthews@whnsolicitors.co.uk
