Adultery is one of the two facts that enable a separating couple to make a ‘quickie’ divorce, i.e. the divorce petition can be drawn up quickly without the need for a period of separation first. The actual time taken will depend on how straightforward arrangements for any children and the division of matrimonial assets and any ongoing financial arrangements are: if these are straightforward and agreed amicably, a divorce may be complete in 4 – 5 months. There is a minimum time span of six weeks and one day between the issuing of a Decree Nisi and the application for the Decree Absolute. Without a Decree Absolute you are not divorced, even if a Decree Nisi has been issued.
You cannot petition for divorce based on your own adultery or unreasonable behaviour.
You must petition for divorce within six months of finding out about your spouse’s adultery, regardless of when the adultery was committed. Where adultery was committed on more than one occasion, the six months starts when you learnt of the last act of adultery. If you continue to live together as husband and wife for more than six months, you cannot use adultery as your grounds for divorce. For example where a spouse has had an affair and you both agreed to attempt to reconcile, but you then discover that your spouse has had a second affair, you have six months from finding out about that second affair.
Adultery has to be proved and the simplest way of doing this is for the adulterous spouse to admit it. If your spouse admits adultery, petitioning for divorce is reasonably straightforward. If your spouse won’t admit adultery, you need to seek legal advice. It is not worth attempting to prove your spouse’s adultery without legal advice first as certain types of evidence are not admissible in court and you may find yourself subject to criminal proceedings if you have obtained evidence by taking documents without permission or copying emails or accessing password-protected computer files or social media profiles without permission.
It is now common practice not to name the person, known as the co-respondent, with whom your spouse committed adultery. Naming the co-respondent can have a negative effect and can make the divorce more acrimonious. If the co-respondent is named but denies committing adultery with your spouse, you may still proceed with the divorce petition if your spouse has admitted adultery.
If you are seeking divorce on the grounds of your spouse’s adultery, which has been admitted, it may be possible to request that there is a costs order against the adulterous spouse.
If you are seeking advice on divorce or separation, please contact James Haworth on 0116 212 1080 now, Alistair Dobson or Janet Hopkins on 01858 445480 now or complete one of the on-line forms. James is a member of the Leicestershire Regional Committee for Resolution, an association of legal professionals working to reduce conflict in separation and divorce.
