Divorcing for adultery? Why naming the co-respondent is a bad idea

The desire to wreak revenge on an unfaithful spouse is, many would agree, an entirely natural one - but naming the person they cheated on you with in your divorce petition is an urge worth resisting.

Whilst it may seem tempting, and entirely fair considering the circumstances, to 'name and shame' this third party - known as the co-respondent - the legal advice is always to remain silent to ensure a clean, swift and amicable divorce, a prompt financial settlement and to keep costs to a minimum.

Background

There is actually only one ground for divorce in England and Wales - that the marriage has 'irretrievably broken down'. This has to be supported by one of five facts, of which adultery is one. The others are unreasonable behaviour, separation of two years when both parties agree, five years if one doesn't, and desertion.

The latest figures from the Office for National Statistics for England and Wales show that around 11 per cent of the 101,699 opposite sex couples who divorced in 2017 did so citing adultery. The most common reason was unreasonable behaviour, cited by 62 per cent.

When it comes to divorcing someone for adultery you have to:

• Confirm that your spouse had sexual relations with someone of the opposite sex;
• Petition for divorce within six months of knowing about the affair if you are living with your spouse;
• Not be the person who had the affair.

So why not stick the boot in?

Even if you feel like you are getting your own back, there is no legal necessity to name the co-respondent when divorcing - in fact, judges take a dim view of it.

All you need is for the respondent, your spouse, to admit adultery.

As soon as you drag in the co-respondent, they become a party to the proceedings and have to be served with the divorce papers. They must then respond, which they may not feel inclined to do, meaning not only delays but possible increased expense for you if you have to pay to get the papers served in person.

The only reason to name the co-respondent is if you intend to claim costs against them - but as this is limited to a few hundred pounds, it is unlikely to be worth the hassle.

Overall, legal experts believe naming the co-respondent merely increases costs, conflict and confusion and more often than not leads to an acrimonious split with money wasted that could have gone in to the pot to be shared out between the two of you.

Latest divorce forms

Section 8 of the latest, newly designed, government divorce form has been criticised for inviting the petitioner to name the person their spouse committed adultery with, although the Ministry of Justice confirms there is no obligation to do so.

Reading the small print alongside Section 7 - Supporting information (Statement of case) - is important and makes this clear.

It states: "It is not normally necessary to name the person your spouse committed adultery with; you should only consider doing so if the petition is likely to be disputed.

"If you include them you must provide their address in section 8 and the court will send them a copy of your petition to give them a chance to respond.

"Your petition could be delayed if they do not respond and it could cost you more money."

For more information and advice about what to do if you considering a divorce, please contact Wards Solicitors Family Law and Divorce team.