A spouse who petitions on the ‘fact’ of adultery has to satisfy the court not only that their spouse has committed adultery but that they (the petitioner) find it intolerable to live with the respondent. Often this is the case, but sometimes the petitioner would have liked a reconciliation – perhaps they are only petitioning for divorce because they have lost their spouse to a new partner – and they don’t at all find it intolerable to live with their spouse but their spouse has taken themselves off and the marriage can’t be saved.
Remember that during the course of the divorce proceedings the petitioner has to swear on oath (or make a non-religious affirmation) that the contents of their petition are true. If you are intending to petition for divorce on the ‘fact’ of adultery, will you feel able to swear on oath (or make a solemn affirmation) that you find it intolerable to live with your spouse? The question may need some thought, and it is best to think about it before starting proceedings.
If you want to petition for divorce on the basis of your spouse’s adultery, you are not allowed to rely on that adultery if you have continued to live together for six months or more after learning about the adultery. The theory is that if you continue to live together for that length of time you have condoned the adultery.
The six months starts from when you learned about the adultery, not when it happened.
You can live together for more than six months and avoid falling foul of the ‘six month rule’ by relying on a more recent incident of adultery. For example, you discover on 5th January that your spouse committed adultery at a New Year’s Eve party. If you delay petitioning for divorce until after 5th June, you will not get your divorce because you have continued to live together for six months or more after learning about the adultery on 31st December. However if you discover on 1st September that your spouse committed adultery again on 1st January, you have got until 1st March the following year to file your petition and still be able to rely on adultery (the second incident on 1st January that you didn’t learn about until 1st September).
The six months can be made up of separate periods between them making six months.
Any periods of cohabitation are ignored for the purpose of determining whether the petitioner finds it intolerable to live with the respondent.
If you are petitioning for divorce on the basis of your spouse’s adultery, you don’t have to name the third party. If you do name them, they have to be served with their own set of divorce papers. That potentially makes it harder for you to proceed with your divorce because you need not only the respondent but also the co-respondent to complete an acknowledgement of service form and return it to the court. It’s generally better not to name the third party. Apart from anything else, it’s usually interpreted as confrontational, which in turn can make it harder to reach agreement on the children or the financial arrangements.