Your ex committed adultery; should you name the other person in your divorce?
When clients contact us for a divorce because their husband or wife has cheated, they often say that they want to name the other person. Understandable though that is, it’s often not the best course of action.
In any divorce, it is preferable to keep things as amicable as possible – difficult though that might seem at the time. Your ex might be more willing to agree to a divorce if you are willing to keep the other person’s name out of it (and here’s a little tip – for the purposes of your petition, the adultery could have taken place after you separated but while you were still married, which is sufficient for the court and might be more palatable to your ex).
What are the benefits of naming and shaming?
There aren’t any particular ‘benefits’ to naming the other person in your divorce. You might want them to have to take the blame for the breakdown of your marriage, but the reality is that no one else will see the divorce papers (apart from the court staff and the judge, who won’t be shocked by anything in your divorce petition – they’ve seen it all before!).
Putting the blame on your ex and the other person won’t mean that you get a preferential deal when it comes to finances or arrangements for your children either. The court doesn’t take into account who was “to blame” for the breakdown of the marriage when dealing with these aspects.
What happens if you name the other party?
When you name the other person, they have to be ‘served’ with the divorce papers, which means that the documents will be sent to them by the court. You might think that’s a good thing, but actually it means you get another person involved who could potentially object and delay your divorce. If they decide to contest the divorce by saying there simply was no adultery, the whole divorce case will become much more lengthy and costly, and might have to involve court hearings which might otherwise not have been necessary.
Similarly, the other person might simply refuse to sign their acknowledgement to enable the divorce to proceed. Whilst this doesn’t mean they can stop the process indefinitely, it will require you to take further steps, and most likely incur further costs, to try to progress the divorce. It will also mean that your divorce takes longer than it needed to.
How do you prove adultery?
Finally, note that you have to have evidence of a sexual relationship between your ex and a person of the opposite sex for it to be classed as adultery (but note that adultery isn’t an option as a basis for divorce with a same sex marriage or civil partnership). If your ex (and the other person if you name them) won’t admit it, it’s very difficult to prove that it took place. If you can’t prove a sexual relationship has taken place, you can still use the circumstances in an unreasonable behaviour petition (for example, the text messages you saw on your ex’s phone) but again, it’s important to note that if you name the other person anywhere in any divorce petition, they’ll have to become involved in the divorce proceedings.
Overall, there is usually no need to name the other person in a divorce and, in fact, doing so might cause you more stress and heartache in the long run.
Written by Paula Tanner who features in The Hug Directory