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Published: Fri, 02 Feb 2018
Adultery | Free Family Law Essay
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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  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.
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