Should you discover that your spouse is having an affair, there are certain things that are inadvisable. While you might be tempted, don’t deliver his valuable wine collection to your neighbours’ doorsteps to be collected with the morning milk. Avoid spreading those rumours about your wife’s coach around the tennis club. And definitely don’t name the “third person in the marriage” on the divorce petition. In this article, top divorce and family lawyer Claire O’Flinn, explains why these things are a no-no.
Whether it involves a dance couple from Strictly Come Dancing or a well-known UK TV personality's messy break up, the issue of whether a marriage is for life and how to deal with it when things go wrong is always a hot topic. Religious and ethical arguments aside, is it a good thing to name and shame third parties during divorce proceedings?
Whilst on a basic human level, naming the co-respondent seems logical. To the spouse discovering the adultery it often seems obvious, even necessary, to name the co-respondent and as a family law specialist I have met with plenty of clients who come to the first meeting with the very intention of doing so. In fact, to be advised against it is sometimes met with abject horror. After all, it is almost a “trump card” causing immense aggravation, possibly embarrassment, to the spouse let alone the co-respondent and the client is mortified that the legal advice is to remain silent.
So, let’s look at why divorce solicitors advise against it. There are good reasons, I promise you, and they are for the client’s long term benefit.
Firstly, a bit of background; there is only one ground for divorce in England and Wales and that is that the marriage has “irretrievably broken down”. That ground has to be supported by one of five facts; adultery, unreasonable behaviour, separation of two years and both parties consent to the divorce, separation of five years and desertion.
It is worth noting that adultery can only be relied upon when a) a party to the marriage has sexual relations with an outside party of the opposite sex; b) that you petition within 6 months of knowing about the affair if you are living with your spouse; and c) you are not the person who has had the affair.
The Family Proceedings Rules 1991 state that there is no need to name the co-respondent unless you intend to make a claim for costs against them – and as those costs are limited to a few hundred pounds there is little mileage in it.
There are good tactical reasons for not naming the co-respondent – by naming them they become a party to the proceedings and therefore have to be served with the divorce papers and acknowledge them. They may try to avoid service and paying for a process server is another expense a client really should avoid. Once received, they may be unlikely to cooperate in returning the papers to the court. If they can cause problems in the divorce they may well want to do so in sheer vengeance for being named in the first place. The whole scenario takes on a bleak perspective and increases costs.
All of this can seem to a client that their divorce solicitor is telling them to “play nicely” at a time when they are having to cope with a situation that they did not want and did not engineer. How can a client turn things to their advantage? Sometimes the spouse who has committed adultery feels guilty. Sometimes, they want to marry the co-respondent and so want a swift exit from the marriage. In between the “why me” therapy sessions and drinks after work with friends to analyse every minute detail of the marriage, it is important to try to focus on the future.
Solicitors cannot help you with the past (although we can recommend counsellors and therapists who can) but we are skilled at guiding you through divorce and financial settlement towards your future. Use your spouse’s guilt, remorse or desire to remarry to encourage a more favourable financial settlement than they may otherwise have intended. However if you have named the co-respondent you have lost this opportunity and an acrimonious divorce may escalate with legal fees eating into the money you should be preserving for your life ahead. Where is the sense in that?
The courts are not concerned with the reason for the breakdown of the marriage when it comes to considering the financial settlement or arrangements concerning the children so why cloud the issue? Keep matters simple, focus on a clean divorce and work towards a prompt financial settlement. Whilst it may feel just to name a co-respondent it will not change the past but may prolong your move towards the future.