Adultery

Content on this page was prepared by the Law Department at St. Brendan's Sixth Form College. This page is no longer updated, and no responsibility is accepted for it by St. Brendan's College or LawTeacher.net

A person commits adultery if he or she has voluntary sexual intercourse with another person, one or both of them being married to someone else. The intercourse must involve some penetration but need not be complete. Oral and anal intercourse are probably not adultery in themselves, but between a man and a woman may give rise to an evidential presumption of vaginal intercourse as well; they may also amount to "behaviour ..." under s.1(2)(b).

The first of the five facts involves a two-part test. It is not enough to show that the respondent has committed adultery; the petitioner must also show that she finds it intolerable to live with the respondent. The petitioner's own adultery is not a ground for divorce, and if the petitioner as well as the respondent has committed adultery it may be difficult to convince the court that it is intolerable for them to continue living together.

Barnacle v Barnacle [1948] P 257, Wallington J
A woman W petitioned for divorce, but the King's Proctor intervened to argue that the decree nisi should not be made absolute because W's petition had not admitted her own adultery. Evidence was given that when W's solicitor's clerk asked W whether she had committed adultery he had not been too explicit, and W said she understood adultery to mean having a child by someone else. Accepting this evidence and allowing the decree to stand, the judge said he had personally met otherwise well-educated men who thought it was not adultery if the woman was over 50, and the King's Proctor had come across people who thought it was not adultery during the daytime.

Clarkson v Clarkson (1930) 143 LT 775, Merrivale P
A sailor H returned from foreign service to find his wife P pregnant, and petitioned for divorce on the grounds of W's adultery. W claimed to have been raped by a stranger, and there was some corroborative evidence. The judge said adultery required voluntary intercourse; he accepted W's story and therefore refused a decree.

Redpath v Redpath & Milligan [1950] 1 All ER 600, CA
While H was on active service abroad, W returned to her parents' home one evening and complained she had been raped by X. X was tried for rape and was acquitted, and H subsequently petitioned for divorce on the grounds of W's adultery. The judge dismissed H's petition because H had not shown the admitted intercourse was voluntary, but the Court of Appeal, granting the decree sought, said the onus was on W to show that it was not.

Preston-Jones v Preston-Jones [1951] 1 All ER 124, HL
A woman W gave birth to an apparently normal child, twelve months after her husband H had gone overseas and six months after he returned to the UK. There was no other evidence that W had committed adultery, but the House of Lords said H's petition for divorce should be granted: there was no other reasonable explanation but that some other man was the father of the child.

Sapsford v Sapsford & Furtado [1954] 2 All ER 373, Karminski J
H petitioned for divorce on the grounds of W's adultery with X. Granting a decree nisi, he judge said that if (as X claimed) no more had happened than mutual masturbation, that would not amount to adultery in law; but he was satisfied that there had been actual intercourse (albeit perhaps not "full and complete" as required for consummation of a marriage), and that was enough.

Barnett v Barnett & Brown [1957] 1 All ER 388, Temple-Morris QC
W petitioned for a divorce on the grounds of H's cruelty and his adultery with W's young sister S, then aged 12. Granting the decree nisi, the Commissioner said there was clear evidence that H had committed adultery with S, even though S was too young to give effective consent and so could not herself be guilty of adultery with H.

Goodrich v Goodrich [1971] 2 All ER 1340, Lloyd-Jones J
H petitioned for divorce on the grounds of W's adultery and was granted a decree nisi. The judge cited with approval a passage in Rayden on Divorce that it is what "the petitioner finds" intolerable that is the primary consideration. But it is not enough, he suggested, for a petitioner simply to say "I find it intolerable": some reason, explanation or justification for this assertion should be given so that the court can satisfy itself of the truth of the petition.

Roper v Roper [1972] 3 All ER 668, Faulks J
W petitioned for divorce on the grounds of H's adultery with a neighbour X, but her petition was dismissed. The judge said the statutory requirement that "the petitioner finds it intolerable" does not mean merely "the petitioner says that she finds it intolerable"; he did not believe W found it intolerable to live with H at all, but only that there was another man who was more sexually attractive. (H's cross-petition based on W's adultery with X's husband, which had happened first, was allowed.)

Cleary v Cleary [1974] 1 All ER 498, CA
W went to live with another man X and committed adultery with him. W subsequently returned home to H for a few weeks, but continued to correspond with X, went out at nights, and finally went to live with her mother. Allowing H's petition for divorce on the gounds of W's adultery, the Court of Appeal said the two requirements of s.1(2)(a) are separate, and disapproved dicta to the contrary in Roper and elsewhere. The statute does not require that the plaintiff finds it intolerable to live with the respondent because of the respondent's adultery. H had shown that W had committed adultery, and that (because of her subsequent behaviour) he found it intolerable to live with her, and that was good enough. Obiter, however, Lord Denning MR and Scarman LJ agreed that the court must satisfy itself of the truth of the petitioner's assertions as to intolerability.

Back To Family Law Resources

Secure your law degree, order your family law essay right now!

Adultery

Secure your law degree, order your family law essay right now!

Order Now. It takes less than 2 minutes.

Law essay writing

Law resources

Law essays

Law dissertations