Adultery question

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The Grounds of Divorce and Dissolution

The grounds for invalidity of a civil partnership mirror those of marriage – a civil partnership cannot thus be valid if the parties are

  • Of different sexes
  • Under 16
  • Within the prohibited degrees of relationship
  • Already in a civil partnership
  • Incapable of understanding nature of civil partnership
  • Do not give consent to the marriage
  • However, as in marriage, the parties cannot claim that there was tacit withholding of consent at time of constitution of partnership and so the marriage is not valid.

Adultery

By S1(2)(a) of the Divorce (s) act 1976, irretrievable breakdown of marriage is established if “since the date of marriage the defender has committed adultery”

Statutory ground but A itself defined by common law

  • DSA 1976, s1(2)(a) & s1(3A)
  • IB is estab’d by proof of A since date of marriage
  • A not a ground for dissolution of CP as such [impossible – A is gender specific, voluntary vaginal sexual intercourse by a married person with another person of opposite gender who is not their spouse]
  • Civil P’ship – vaginal sexual intercourse with another probably constitutes intolerable behaviour in context of CP. And homosexual activity too.
  • Same sex mge – vaginal sexual intercourse with person of opposite sex you are not married to is A
  • Same sex mge – homosexual activity with another not A by definition but probably intolerable behaviour

Sands v Sands, OH, 1964 S.L.T. 80, Lord Walker

  • W brought a fresh action for divorce on the grounds of cruelty & adultery.
  • W had previously been granted divorce on the ground of cruelty but that that decree had been reduced on the ground of personation & perjury.
  • The adultery of the H committed between the raising by H of the action of reduction of the former decree of divorce and the date when decree of reduction was pronounced.
  • H pleaded that the averments relating to his adultery were irrelevant inasmuch as at the date when the adultery was alleged to have been committed the decree of divorce had not been reduced and no matrimonial guilt could be attached to his actings.
  • Held, that the averments of adultery were relevant and proof of adultery allowed.

Hunter v Hunter 1899 7 SLT 152

  • H went to Canada for work, eventually he stopped answering mail etc
  • After some years, W believed H dead & re-married in good faith on her family’s advice…..but H resurfaced later.
  • W sought divorce due to H’s Desertion but Ct refused as W’s adultery justified H’s non-adherence!
  • Adultery despite good faith.
  • [No bigamy prosecution due to W’s good faith but made no difference re-adultery]

 

Defences to adultery

Lenocinium –  s1 (3) of the divorce (scot) act 1976. Essence of defence is that the pursuer actively promoted the defends adultery or was art and part of the defence. E.g. pimping

Gallacher v Gallacher  1928

  • H’s first action for divorce failed as he’d written to W urging her to do something to give him grounds for divorce, so she took a lover!
  • Held she wldn’t have done this but for H’s urging! No divorce.
  • But 6 years later, H tried again, succeeded as W now shacked up with lover.
  • H’s letter didn’t give W perpetual licence to commit adultery!

Another defence is Condonation s1 (3) – arises when the pursuer knows of the adultery and continues to live with the defender, and amounts to legal forgiveness. The 1976 act encourages reconciliation and thus, a period of resumed cohabitation of up to 3 months is permitted without a defence of Condonation arising s2(2). In addition, where the court believes there is a prospect of reconciliation and continues the case, no resumption of cohabitation during that time will bar an action of divorce s2(1)

McKellar v McKellar 1977 SLT (N) 70

  • Spouses wed 1950, sep’d 1974.
  • H committed adultery from 1968 to date.
  • [W committed adultery variously too.]
  • Spouses raised cross actions for adultery divorces, both admitted adultery but W claimed H condoned her’s as they had contd to cohab – but separate bedrooms & no sex, only slept together when visiting friends.
  • Held no Condonation by H [altho in principle, sex was not essential]. Here H indifferent to W’s adultery but that not Condonation.
  • Parties were estranged despite living under same roof. H viewed W as housekeeper.

 Behaviour

By s1(2) of the divorce (s) act 1976 and s 117(3) a of the civil partnership act 2004, irretrievable breakdown in CP or marriage is “ since date of marriage or reg of cp, the defender has at any  time behaved in such a way the pursuer cannot reasonably be expected to cohabit with the defender”

A mere physical condition does not per se constitute behaviour. E.g. if a defender is incontinent that’s not behaviour however if he refuses to wear protective underwear, that’s behaviour.

In Thurlow v Thurlow 1975 – it has been accepted in English and Scots law that as a result of a debilitating illness a spouse is unable to fulfil the obligations of marriage, this failure is behaviour.

Stewart v Stewart

  • W accused H of adultery but it could not be proved.
  • H stayed out late often instead of coming home after work,
  • W didn’t mind until W heard H kept company of same woman on these occasions……..??!!
  • Held to be intolerable behaviour but not adultery.

No specific defences.

Non-cohabitation for 1 year

S1 (2) (D) of the Divorce (scot) 1976 act “ there has been no cohabitation between parties or CP at any time during one year of the marriage  or cp and immediately preceding the bringing up on the action”.

The defender must positively consent to the granting of the decree. Consent can be withdrawn at anytime before decree.

Non cohabitation for 2 years

S1 (2) (e) same as above…

The difference is the year and also consent is not required. The original 1976 act provided “if in the opinion of the court the grant of decree would result in grave financial hardship to the defender (s.1(5)). That defence was abolished by the Family law scot act 2006 s13.

Termination of Adult Relationships

  • Death
  • Actual and presumed
  • Presumption of Death [S] Act 1977
  • any p with T&I may raise action
  • if spouse/CP not known to have been alive for 7 years
  • presumption is rebuttable by proof up to granting of Ct decree
  • marriage/CP dissolved & does not revive but parties may re-marry each other or others etc if free to do so

Gender Recognition certificate – Gender Recognition act 2004

A post-operative transsexual can apply for a GRC when the acquired gender will be recognised as the applicant’s sex. Where the applicant is married or in a CP only an interim GRC could be issued until the applicant divorced or the CP was dissolved. S1 (3b) of the divorce act provides that the right to obtain a divorce which arose when the Interim GRC was issued does not lapse when the full certificate was granted.

Read further at http://www.familylawweek.co.uk/site.aspx?i=ed81249