We wrote an article on the issue of defining adultery some time back in 2017 in Are You Committing Adultery? Are You Sure?
It caused a bit of a stir at the time and we got a lot of questions and some rather grumpy responses that missed the main point that adultery is not what most people think it is, but is very clearly defined in legal terms.
Although, of course, we support & applaud the push for same sex married couples to be able to use adultery as a ground for divorce, adultery is often a very difficult ground to pursue in any event, gay or straight. The other party has to admit to the adultery in writing or the petitioner has to prove the adultery. This is very difficult because of the tight wording of the definition: i.e. your partner may have formed a relationship with another, whether brief or long term, but how do you prove that sexual intercourse took place? In the same way that there are very clear definitions of what constitutes adultery and sexual intercourse in heterosexual marriage, the question remains of how should we define sexual intercourse in same sex marriages for the purposes of proving adultery?
Many people opt to use ‘unreasonable behaviour’ instead of adultery. This does not have to be proved in the same way as adultery and whilst the statement in an adultery petition, is expected to be short (e.g. the respondent has committed adultery with another who is unknown to the petitioner or the co respondent is unnamed, giving dates when the adultery took place), in a case of unreasonable behaviour, the statement of case in the petition, can be more detailed and be longer & include the infidelity (which is itself unreasonable behaviour).
Moreover, if a petitioner names the co respondent in the petition, then not only does the other party (the respondent) have to admit to the adultery but the petition also has to be served on the co respondent which complicates matters no end!
To summarise the main point we are making here, is that, yes, we understand and applaud the push for equality but the charge of adultery sometimes unduly complicates matters when there are easier and quicker ways to get to the same point without all the faffing around that often slows down or actually brings divorce proceedings to a halt.
Elizabeth Leah – rhw Solicitors llp
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