When one person discovers that their spouse has done the dirty on them they are usually heartbroken. Often, by the time they reach the Solicitor’s office a little of the emotion will have subsided and they will be moving towards the stage of feeling angry and resentful. They will want to hit back at their ex in any way possible and sometimes this means that I am faced with a client who is adamant that they will only consider divorcing their spouse on the basis of adultery and they insist that the co-conspirator should be outed and named in the petition.
On a personal level, I quite understand the feelings of any person who has been betrayed in this most hurtful of ways but when I’m wearing my suit I need to think about what is going to be best for this particular client both in the short term and the long term.
The first thing to think about is that to send a petition to Court based on someone’s adultery, you need to prove that there has been sexual intercourse. If your spouse is not going to confess to that then how are you going to prove it to the Judge? Neither the Judge nor the Solicitors want to watch any sordid secretly recorded video and I would never advise that a client should take such a measure – it could land them in seriously hot water. There are ways that adultery can be proven without the confession of the guilty party but they involve things like the birth of a child to the wife with proof that the husband is not the father or a rape conviction of the Respondent to the petition in a criminal court. These things can take time to materialise and often the person sat before me wants to proceed with some degree of fortitude and speed.
I always advise that we write to the proposed Respondent and ask them to sign a confession statement. If you send a petition to the Court without that confession and the Respondent later denies the adultery then you will incur further legal fees to amend your divorce petition. Where no confession is forthcoming the best course of action is to issue a divorce petition based upon allegations of the Respondent’s unreasonable behaviour. In this petition you can give around 4 to 6 examples of what you ex has done that means you should not be expected to live with them. One of the examples could read that they have engaged in an inappropriate relationship and you can explain to the Court in this petition how much their behaviour has affected you.
In terms of naming the third party then other than a potential feeling of satisfaction or revenge for the aggrieved person, there really is little point. If you name the third party in the petition they will be served with the Court paperwork. You then have to wait for them to return a signed form to the Court confirming that they have been served. If they do not return that form (and there is little incentive for them to do so) then you will have to pay a bailiff or a process server to hand deliver further copies of the paperwork to them.
It is quite understandable that someone who finds themselves in this situation will want to exact revenge in whatever way they can. It is the role of a good family Solicitor to put emotions aside and think about what is actually best (and most cost effective) for their client.
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