Families and divorce

“DIY” divorce application may lead to more adultery accusations

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The divorce laws in England and Wales have recently changes. Please refer to our latest article:‘No fault’ divorce law

A new government form that looks to “name and shame” adulterers is set to make the process of divorce even more complicated, according to a leading lawyer.

Family solicitor Sally Powell, Partner at Tees, based in Bishop’s Stortford, says the latest changes to the application form were meant to streamline the process, but may well have the opposite effect.

“The government has called it a user-friendly form, as it appears simple for couples to do their own “quickie online divorce”. However, we are concerned that the changes could slow down the divorce process. There’s real potential for the form to steer people towards a course of action they didn’t intend – or even expect – by naming a third party in the application. This could slow down their divorce, and make the process even more emotionally fraught.

“As soon as a third party is involved things can get a lot messier than it needs to be,” she added.

The new form will be used by people applying for a divorce in England and Wales. For the first time, it now explicitly asks for the name of the person “your spouse has committed adultery with”.

Although there is no obligation to name people, it seems likely that complainants will automatically fill it in. Small print guidance highlights that it is “not normally necessary” to name the person your former partner committed adultery with.

Sally said: “We think that people may, naturally, think they need to fill out the box and name the third party. It could give the impression that this information is required. There’s a risk that people will miss the small print, or choose to ignore it completely.”

If people name the person a former partner committed adultery with, they automatically become part of the court case. They will be sent copies of the paperwork and given a chance to respond. If they don't reply, proceedings may be delayed and could incur more costs.

“The vast majority of our clients initially want to name and shame but we try and persuade them out of it as it tends to paint the applicants in a very bad light. We know that judges don’t like it when new partners are entangled in a court case. In its current state, we think the form could catch people out,” Sally said.

When people file for divorce on the grounds of adultery or unreasonable behaviour, they often feel that, because they are the ‘injured party’, they should be entitled to a more favourable financial settlement. However, this is a common misconception. In nearly all cases, the reasons for the divorce are not relevant when deciding how the marital assets should be divided. 

The court doesn’t look to apportion blame or penalise either party, save in very unusual circumstances. The Matrimonial Causes Act 1973 sets out the criteria that are to be used when determining how the couple’s assets should be dealt with (in the absence of an agreement), and what the terms of their financial settlement should be.

It’s highly unlikely that the court will take adultery into account when making a decision regarding the financial aspects of the marriage. If you filed for divorce because of adultery, you should not expect to receive a more favourable settlement as a consequence. 

The fact that behaviour isn’t a deciding factor when making a financial settlement should discourage spouses from contesting divorce applications on the grounds of adultery or unreasonable behaviour, therefore speeding up what can be a painful process.

When can I get divorced?

You need to be married for at least a year before you can get divorced.

If your marriage breaks down and you want to get divorced, you need to prove to the court that your marriage has ‘irretrievably broken down’. This is the only legal ground for divorce in England and Wales.

Grounds for divorce

The person who starts the process of getting a divorce is known as the ‘applicant’. The other party is the ‘respondent’. The applicant must prove that the marriage has broken down by establishing that one of the following facts has taken place:

  • Adultery
  • Unreasonable behaviour
  • Desertion (for a minimum of two years)
  • Two years separation (with consent)
  • Five years separation (no consent required)

Unreasonable behaviour is the most common grounds for divorce, and covers a range of complaints, such as a lack of financial or emotional support. Adultery is one of the top reasons couples in England and Wales apply for a divorce. One in seven divorces is granted on the grounds of adultery.

When divorce applications are presented based on the other three grounds (desertion or separation with/without consent) then the timescale to divorce is much longer.

We’re here to help

Our family and divorce lawyers are based in:

EssexBrentwoodChelmsford, and Saffron Walden
HertfordshireBishop's Stortford and Royston

But we can help you wherever you are in England and Wales.

Chat to the Author, Sally Powell

Executive Partner, Families and Divorce, Bishop's Stortford office

Meet Sally
Sally Powell, family law specialist in Bishops Stortford
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