The Split: a family law perspective of episode four

This week’s episode of The Split focused on the drama that unfolded after the hacking of an online illicit dating website, providing Hannah with a potential high profile divorce case.

Mrs Graham is the UK’s foreign secretary. She has just learned that her husband’s name is about to be leaked to the press because he was a user of the online illicit dating website. Mrs Graham is understandably very upset by what she has learned and reacts by telling her husband that she wants a divorce.

Divorce

In England and Wales, a divorce can be applied for where a marriage has irretrievably broken down and that break down must be proved by one of five facts:-

(a) Adultery.

(b) Behaviour (i.e. that the respondent has behaved in such a way that the petitioner/ applicant cannot reasonably be expected to live with the Respondent).

(c) Two years’ separation by consent.

(d) Five years’ separation.

(e) Desertion.

Let’s assume that Mr and Mrs Graham have been married for at least one year. On that basis, Mrs Graham could start divorce proceedings immediately by issuing a divorce petition based on her husband’s adultery or his behaviour.

To establish the fact of adultery, Mrs Graham must prove both of the following:

• Mr Graham committed adultery. Adultery is defined by case law as voluntary sexual intercourse between a man and a woman who are not married to each other but one or both of whom is or are married. Mrs Graham will therefore not be able to simply point to the fact that her husband’s name appears on the list of members of the dating website. Ideally, Mrs Graham should try to obtain a signed confession statement from her husband before starting proceedings. This will save them both the time and costs of any argument regarding whether the adultery took place (although I am sure the press would be willing to assist in that regard).

• Mrs Graham finds it intolerable to live with Mr Graham.

As much as Mrs Graham would probably like to do so, I generally do not advise clients to name the person with whom their spouse committed adultery in the divorce petition as this is likely to cause acrimony between the parties. My advice may differ slightly in Mrs Graham’s case, and this is because the Family Procedure Rules do permit the naming of a co-respondent in circumstances where the respondent has indicated that they intend to contest the proceedings. Generally speaking, naming a co-respondent complicates matters procedurally, as the petition would have to be served on them and they would need to cooperate. Should the co-respondent evade service of the Court papers or otherwise refuse to cooperate, this would result in a needlessly dragged out, expensive and acrimonious divorce.

If Mr Graham refuses to admit the adultery, it would be simpler, less acrimonious and less costly for Mrs Graham to redraft the petition and rely on the fact of his behaviour. I would suggest to Mrs Graham that she provides Mr Graham with a draft divorce petition in the first instance setting out a number of examples of his behaviour. Hopefully these can be agreed between Mr and Mrs Graham before the divorce petition is filed at Court. It is good practice to keep the particulars as anodyne as possible (albeit true) whilst still passing the legal test that is applied.

Mr Graham bellowed across the room at Mrs Graham that he would contest any divorce proceedings. It would be helpful if Mr Graham sought advice from a specialist family lawyer and reconsidered his approach because defended divorce proceedings become rapidly more expensive, time consuming and stressful than they have to be. If Mr Graham chose not to defend the divorce proceedings, it would be a mere paper exercise and neither he nor Mrs Graham would need to attend Court. However, if Mr Graham did contest the divorce proceedings, he and Mrs Graham would be required to attend Court and give evidence and that hearing would be open to the public and the press. Given Mrs Graham’s role as the UK’s Foreign Secretary, this is something that she will be very keen to avoid. This is one of the reasons why my colleagues and I generally advise clients against contested divorce proceedings.

In the end, none of the above issues really came into play due to the fact that Mrs Graham would open herself up to a charge of perverting the course of justice were she to issue divorce proceedings based on Mr Graham’s adultery! Oh well!

If you would like to speak to a family law specialist about any of the issues raised in this blog or featured in The Split, please get in touch.
The Split is broadcast on BBC1 at 9pm on Tuesdays.

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