It has been reported in the Daily Mail today that the Great British Bake Off judge Paul Hollywood has said that cheating on his wife “was the biggest mistake” of his life. It has also been reported that he hopes to reconcile with his wife, Alexandra despite the fact that she has already issued divorce proceedings.
In England and Wales there is only one ground for Divorce which is the irretrievable breakdown of a marriage. This ground must be evidenced by one of five facts. As Mr and Mrs Hollywood have not been separated for a period in excess of 2 years Mrs Hollywood would only have been able to petition for divorce on the basis of her husband’s adultery or on the basis of his unreasonable behaviour.
To issue divorce proceedings on the basis of adultery, the person issuing the divorce proceedings, the petitioner, must show that the other party to the marriage, the respondent, has committed adultery and that the petitioner finds it intolerable to live with the respondent.
Adultery is defined as voluntary sexual intercourse between two persons of the opposite sex where one or both of the persons are married but not to each other.
The petitioner must be able to prove or infer that the adultery has taken place. Normally a Family Solicitor would ask the respondent to sign a confession of adultery form. Adultery can also be provided or inferred where the paternity of a child can be established, or if the respondent had been convicted of an offence entailing sexual intercourse. In other cases this might be achieved using evidence from enquiry agents showing that the respondent is Cohabiting with a member of the opposite sex.
Once it has been established that the adultery has taken place the petitioner must also show that s/he finds it intolerable to live with the respondent. The test of “intolerability” does not have to relate to the adultery itself but it is based upon the petitioner’s subjective viewpoint.
If a petitioner is able to prove adultery and can confirm that they find it intolerable to live with the respondent there are still circumstances when the petitioner would be unable to rely upon the respondent’s adultery to issue divorce proceedings.
If the petitioner and respondent have lived together for a period, or periods exceeding six months after the petitioner discovered the adultery then the petitioner would be unable to rely upon the respondent’s adultery. This does not have to be a continuous six month period. The relevant date is when the petitioner discovers the adultery, not when the adultery takes place.
If a divorce petition is issued on the basis of adultery it is possible to join the person who committed adultery with the respondent to the divorce proceedings. However, it is usually not advisable to take this step as it is seen to be unnecessarily contentious and it is also likely to increase legal costs.
It should also be noted that if you are in a same sex Civil Partnership the law states that you are unable to rely upon your partner’s adultery to issue dissolution proceedings. You would however be able to dissolve your civil partnership on the basis of your partner’s unreasonable behaviour and within the dissolution petition you could refer to your partner’s inappropriate relationships as an example of their unreasonable behaviour.
By Family Law Solicitor Amy Harris
For more information about Divorce & Separation, please email one of our Family Law Solicitors at firstname.lastname@example.org or call us on 0800 916 9055.