In this article Family Law in Partnership consultant, Pamela Collis, and Associate, Carla Ditz, consider the dangers posed by naming the person with whom your partner has committed adultery in the latest form of the divorce petition.

The majority of divorce petitions that proceed through the courts are based on the respondent’s unreasonable behaviour.  The most recent statistics released from the Office for National Statistics in October 2017 show that in 2016, divorce petitions based solely on unreasonable behaviour between opposite sex couples represented 45% of the total divorces in England and Wales. In comparison, a divorce petition seeking to rely on the respondent’s adultery is relatively uncommon at just 11% of total divorces.  In August 2017, the Ministry of Justice released a revised version of the divorce petition which arguably openly invites the petitioner to name the person with whom the respondent has committed adultery. Whilst naming has always been possible, family practitioners argue that the new form could result in more petitioners doing so without necessarily realising the consequences of their actions. This argument becomes yet more compelling when one considers the repercussions of adultery petitions from a religious point of view.

In this article, we will take a look at the implications of the revised court form and in particular, the effect of a divorce petition based on adultery where the parties have married in accordance with Jewish Law.

The divorce petition and irretrievable breakdown

The Matrimonial Causes Act 1973, section 1(1) provides that there is only one ground for divorce, namely that the marriage has irretrievably broken down. Irretrievable breakdown can further be proved by one of five facts (MCA 1973 s1(2)):

1. adultery
2. unreasonable behaviour
3. desertion
4. two years separation with consent
5. 5 years separation

The majority of divorce petitions which currently proceed through the courts are on the basis of unreasonable behaviour. This is currently a hot topic amongst family law practitioners because of the fault based claims that need to be made against the respondent in order to convince a judge that the parties’ marriage has broken down irretrievably. Unless there is evidence of adultery, petitioning for divorce on the basis of unreasonable behaviour is the only immediate action a party can take to commence divorce proceedings (having already provided for the 1 year timeframe which must have elapsed since the parties married). Most parties do not wish to wait 2 years (two years separation with consent) before they can petition without assigning blame to either party nor is it desirable to wait to conclude their financial affairs in the form of a court order when the parties’ relationship has come to an end some time ago.

Adultery and divorce proceedings

Irretrievable breakdown of a marriage may be also be proved if the petitioner can satisfy the court that the respondent has committed adultery and the petitioner finds it intolerable to live with the respondent. In undefended cases, the adultery can be evidenced by the respondent simply admitting to the adultery and signing the Acknowledgement of Service to that effect. Where the respondent does not admit to the adultery, the petitioner will have to prove their case on a balance of probabilities.

Insofar as naming the person with whom the respondent has committed adultery is concerned, a practitioner is only likely to name a co-respondent where there is an indication that the petition is likely to be defended un-meritoriously. In other circumstances, can this ever be said to be helpful within divorce proceedings? Understandably, a petitioner in person may feel strongly about committing such information to paper and may find it hard to resist the temptation to name the third party. But it often only serves to prolong matters and increases costs, as the now co-respondent is joined to proceedings. This does not, of course, take into account the possible repercussions for the third party where they themselves are married and the impact on their relationship with their spouse arising from such a revelation. For these reasons, solicitors will seek to dissuade their clients from naming the person with whom their husband/wife has committed adultery.

In addition to solicitors taking an active role to discourage clients from naming this third party, this is further referred in the Family Procedure Rules 2010.

Practice Direction 7A, Family Procedure Rules 2010 provides:

2.1          Where the application refers to adultery or to an improper association with another person, that other person should not be named in the application unless the applicant believes the other party to the marriage or civil partnership in question is likely to object to the making of a matrimonial or civil partnership order on the application.

Resolution’s Guide to Good Practice on Drafting Documents 2017 also acts as a reminder that naming a co-respondent is “likely to cause further tension and conflict between the parties and will also increase costs and time as a further party will be involved in the proceedings.” As such, it is not necessary to name a co-respondent in the divorce petition.

The revised divorce petition

So why the sudden interest in the news about divorce petitions based on the fact of adultery? A copy of the new version of the standard divorce petition (Form D8) introduced in August 2017 can be found on the Ministry of Justice website.

Section 8 of the form clearly states that where the petitioner has provided the name of the person with whom the respondent has committed adultery in section 7, that person’s details must be provided so that a copy of the divorce petition can be served on them. Whilst this in itself is nothing new – it has always been possible to name this person in the divorce petition (and prior to 1991, it was in fact compulsory where the identity of the person was known) – it is argued that the revised form makes it easier or perhaps far too inviting to name names and we could see an increase in the number of adultery divorce petitions. The old form of the divorce petition simply asked the petitioner at the end of the document whether or not there was a co-respondent and then for a name and address to be provided. In contrast, the new version has a whole section entitled ‘Adultery’ which certainly draws one’s attention.

The revised form has caused concern from family lawyers who feel that the inclusion of a third party can only lead to added complexity in a case as well as added conflict from the outset of the case. It can also mean that the timeframe for a case to complete could be extended due to the additional party involved who will have to be served with documents and, in turn, respond where necessary. A respondent is also likely to be incensed by the naming of a co-respondent for any number of reasons.

But whilst family lawyers are aware of the potential harm caused by naming the third party, with an increasing number of litigants choosing not to instruct lawyers to assist with their divorce (current statistics suggest one in three divorce petitions are completed without seeking legal advice), a litigant acting without legal advice may take a look at the new form (without necessarily reading all the small print) and complete all sections without realising that they do not in fact have to do so. This could give rise to an increased number of co-respondents in adultery petitions. This is despite the fact that the Ministry of Justice guidance and notes which accompany the divorce petition state that it is not normally necessary to name a co-respondent in adultery petitions and warns the petitioner that naming a co-respondent may lead to delay and additional cost.

Adding fuel to the fire?

So, whilst the intention of the revised form is to make it simpler for those completing it, it could be said that the unintended consequences will be to add fuel to the fire if more petitioners name the person with whom their husband/wife has committed adultery not to mention an increase in complexity and delay.

Jewish law (‘Halacha’) and adultery

“You shall not commit adultery” – The Ten Commandments (Deuteronomy 5)

In Judaism, adultery is considered to be one of the gravest of sins. Whilst the labelling as an adulterer and naming of a co-respondent will undoubtedly cause distress, hostility and general upset between the parties to a divorce, most will be able to move on with their lives after the divorce, putting the whole experience behind them.  However, for those who marry in accordance with Jewish law, the problems resulting from such actions can endure for the rest of their lives. Where adultery is committed (ie sexual intercourse between two people, one or both of whom are married but not to each other) those two people are not permitted to remarry each other in a synagogue notwithstanding a valid Jewish divorce (or Get). Critically, there may also be repercussions for the religious status for any child born to the accused adulterer, something which can be potentially disastrous for that child (and future generations) in the Jewish community.  There is a potential elephant trap for parties and their lawyers which we seek to highlight.

The implications of adultery and divorce

As far as the Jewish community is concerned, what are the implications associated with an adulterous relationship (where all parties involved are themselves Jewish) and divorce? As a general rule:

1. Where adultery is committed, the adulterer may not re-marry in synagogue unless the woman has obtained a Get from her husband. It is however forbidden for the woman to marry the man with whom she has committed adultery.  If a petition names a co-respondent, a vengeful petitioner could use it to persuade the Jewish authorities that the respondent and co-respondent may not remarry in synagogue.
2. Where the woman becomes pregnant with another man’s child whilst she is still married (whether or not the Get is subsequently received) the child is considered a ‘mamzer’ (a term for a child who is born as a result of a forbidden act, such as adultery) the consequence of which is that this child, and future generations, are very limited in whom they may marry (only another ‘mamzer’ or a convert).  For some, the notion of a ‘mamzer’ is a sufficient deterrent to committing adultery.
3. The stigma associated with adultery can result in the adulterer and their child becoming outcasts in the community.

The above represents the position at the Orthodox end of the religious spectrum. Within Judaism, there are different denominations or movements. Broadly these are (in order of strictness and rigid adherence to Jewish law): Orthodox, Masorti, Reform and Liberal each of which have their own interpretations of Jewish law and levels of observance. The position as to the above may therefore differ depending on the views of each denomination with the more liberal movements being, in some respect, more permissive or moderate in modern society. For example, the Liberal movement openly states that they do not require a woman to obtain a Get should she wish to remarry in the Liberal synagogue due to their egalitarian stance (although this does not preclude a wife from trying to obtain the Get or the husband from giving it). In any event the non-orthodox communities will often encourage women to obtain their Get in order to avoid potential difficulties with the orthodox communities further down the line.  Further, the concept of a ‘mamzer’ in the Liberal movement is vehemently rejected. Within the Orthodox movement however, the position of a ‘mamzer’ is more strictly adhered to. For a woman who has committed adultery, receiving the Get from her husband will be key, should she wish to re-marry in the faith. As mentioned above, she cannot marry the man with whom she has committed adultery although, again the more liberal movements may be more lenient.

The existence of civil marriage alongside religious marriage has also presented a modern day conundrum as an adulterer can of course still re-marry in a civil ceremony following a civil divorce. With any child born subsequent to that civil marriage being identified as a ‘mamzer’ (with a Get not having been received and/or where the biological mother and father of that child choose to marry in a civil ceremony), this will divide Jewish society and indeed have an impact on the population of the future Jewish community as the civil marriage does not automatically sever the religious marriage. Seeking advice from a Rabbi or relevant Beth Din, (Jewish Court) is always advised when a party finds themselves in this position. Interestingly, the revised version of the divorce petition does now contain a note on page 1 to say that a civil divorce does not necessarily dissolve a religious marriage and advises that guidance is sought from the relevant religious authority.

Pulling the strands together, if the revised divorce petition from the Ministry of Justice does indeed result in an increase in the number of petitions based on adultery, then by implication, we may also see an increase in problems within the Jewish community with respect to marriage and divorce if the taint and religious significance of adultery proves hard to overcome.

Closing remarks

It is imperative that family law practitioners are aware of the religious implications involved in claims of adultery where the parties have been married in accordance with Jewish law and should they wish to re-marry or have children in the future. As with any client who is seeking to divorce, drafting a petition on the grounds of adultery and naming a co-respondent should be discouraged in any event so as to limit any additional complications or heightened conflict from the outset of the case. If a petition is received naming a co- respondent the lawyer will need to take great care by consulting with the rabbinical authorities and seeking the amendment of the petition or other resolution of the problem. On a practical note, clients should always consult with their Rabbi (or Beth Din) about how to seek to resolve what can seem like an impossible situation.

Further information on divorce and its impact on Jewish law can be found in the recently revised booklet, ‘Jewish Family Law and Custom’ published by the Board of Deputies of British Jews. This contains excellent information on divorce but also many other areas that may be the subject of civil family law proceedings, such as contact arrangements, religious events for children, and many others.

Source

¹ ONS: Divorce England and Wales 2016 Statistical Bulletin

https://www.ons.gov.uk/peoplepopulationandcommunity/birthsdeathsandmarriages/divorce/bulletins/divorcesinenglandandwales/2016

About the authors:

Pamela Collis is a consultant at Family Law in Partnership. She is a very senior and highly regarded family lawyer having specialised in family law for over 35 years. Pamela is known for her pragmatic and constructive style and her strategic vision. Contact Pamela at E: pc@flip.co.uk or T: 020 7420 5000.

Carla Ditz is an associate at Family Law in Partnership. She advises on all aspects of divorce, children and cohabitation matters. Carla also has a keen interest in religious divorce, in particular the Jewish Get, and advises clients on what steps need to be taken and at what stage during the civil divorce process. Contact Carla at E: cd@flip.co.uk or T: 020 7420 5000. 

This article first appeared in Family Law Journal, December 2017 and is reproduced by kind permission.