This is a question we are often asked when a client first comes to us to talk about filing for divorce. Often that client is feeling angry and hurt.
Georgia Smith take a look at this challenging issue.
In simple terms, the divorce petition effectively sets out the petitioner’s reasons as to why the marriage has irretrievably broken down. In cases of adultery, it may be perceived that a third party is the sole reason for the breakdown, which is why the question “should I name the person who my partner committed adultery with in my petition?” is asked.
The straightforward answer is no.
It is not normally in your best interests to name the other man or woman in your divorce petition, even if you are divorcing on the sole basis of adultery. This advice can be a tough pill to swallow for most, who understandably wish to allocate blame after experiencing such feelings of hurt and betrayal.
It is usually enough for the petitioner (the person making the application for divorce) to provide the particulars of when the adultery took place and whether that relationship is ongoing. The respondent will then be served with a copy of the petition and will be asked to complete an acknowledgement of service form, which will ask if they admit to the adultery. Alternatively, your solicitor may request that the respondent complete a confession statement.
However, it may be the case that the respondent refuses to admit the adultery and the petitioner will have to prove the fact on a balance of probabilities.
What if I name the co-respondent?
Naming a third party in your divorce petition will make that person a co-respondent to your divorce. In practice, it is very rare for this to happen, as the Family Procedure Rules 2010 state that the third party should not be named unless the petitioner believes the respondent will contest the proceedings.
Significantly, naming a co-respondent could delay matters, as the third party will be served a copy of the petition and will be asked to fill out a form in response. If that third party proceeds to instruct a solicitor, your costs will only increase.
It is often wrongly assumed that adultery will be taken into consideration by the Court when determining financial settlement. This is not the case, and the judge can often take a dim view of a spouse who insists on naming a co-respondent.
In reality, naming a co-respondent only increases contention and may even cause the respondent to decide to defend the divorce. The urge to ‘name and shame’ can be short-lived and the real victory is in obtaining an amicable and swift divorce.
