10 points to consider before filing for Divorce based on Adultery
1. There are two elements that need to be proven. Firstly, the plaintiff must prove that adultery has been committed by the defendant. Secondly, the plaintiff must prove that this has made it intolerable to live with the defendant.
2. A plaintiff who alleges adultery has the burden of proving that adultery has been committed by the defendant on a balance of probabilities. To this end, the courts have adopted a high threshold in discharging the burden of proof. Thus, a better solution would be to engage an experienced divorce lawyer to determine if there are alternative grounds, such as unreasonable behaviour, to base the divorce proceedings on.
3. Sexual intercourse must have taken place between the defendant and third party for adultery to be present. Here, sexual intercourse refers to penetration. It is therefore insufficient if the plaintiff alleges that the defendant had communicated intimately through text messages and emails or engaged in intimate activities falling short of sexual intercourse (i.e. kissing or hugging) with a third party. However, evidence of such activities remains relevant as indirect evidence to prove adultery.
4. An adultery can only be committed between the defendant and a third party of the opposite sex. This means that if the defendant had engaged in intimate relations with another party of the same gender, adultery will not be the appropriate ground to seek a divorce. Instead, the plaintiff should consider other grounds of divorce.
5. Apart from proving adultery, the plaintiff must also show that it is intolerable to live with the defendant. To determine this, the courts will consider whether a reasonable person in the plaintiff’s position would find it intolerable to live with the defendant. The courts will also assess the circumstances and personalities unique to the parties. To this end, the courts have adopted a low threshold which is relatively easy to surpass upon a finding of adultery.
6. A plaintiff will not be able to get a divorce if he/she had continued to live together with the defendant for more than six months upon finding out about the adulterous relationship. Therefore, once a plaintiff has confirmed suspicions about his/her spouse engaging in an adulterous relationship, he/she should commence divorce proceedings as soon as possible if he/she wishes for it to be on the grounds of adultery.
7. A finding of adultery will not affect the separation of marital assets. Therefore, a plaintiff cannot expect the court to separate marital assets in his/her favour merely because the defendant has been found to be an adulterer. Similarly, a finding of adultery will not affect the custody of children. However, the adulterous relationship may be relevant in certain circumstances to show that it is not in the best interests of the children to be in the custody of the defendant in certain circumstances. For example, where a defendant is involved in an adulterous relationship with multiple partners, the court may consider that it is not in the best interests of the children to be placed under the custody of the defendant. This will be determined on a case-by-case basis, depending on the circumstances of the case.
8. A plaintiff will not be able to commence divorce proceedings if he/she has been married for a period not exceeding 3 years. This means that even if a plaintiff finds out of his/her spouse’s adulterous relationship a few months into the marriage, he/she will be unable to file for divorce on the grounds of adultery. Given that there is a 6-month limit for filing for adultery upon discovering it (refer to point 6), an alternative would be to engage a specialist divorce lawyer who will be able to advise the plaintiff on exceptional circumstances in which the court may grant divorces even if 3 years have not passed since the date of the marriage.
9. The plaintiff may elect to name the 3rd party, who is alleged to be in the adulterous relationship with the defendant, as a co-defendant in the divorce proceedings. However, this is not mandatory and there are no additional benefits for doing so.
10. Once an adultery is proven, the court may order the defendant to pay for the costs of the divorce proceedings. Further, if a private investigator was hired by the plaintiff to prove the adultery, the court may order the defendant to pay the fees for hiring the private investigator. However, this is entirely up to the court’s discretion.