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Divorce-difference of who divorces who?

  • treaclepie
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15 Nov 13 #413697 by treaclepie
Topic started by treaclepie
Hi, can someone please try and clear something up for me.
There seems to be a bit of confusion regarding the start of my divorce. Basically My ex went to the solicitor the same time as me, he thinks I started the divorce on him for adultery-I think he has started the divorce on me for seperation of which I disagreed with. Does this make a difference who started the process or who pays in regards to the reasons. I do have a solicitor but feel a bit silly and intimidated by asking questions all the time that seem to confuse me. I know I have to deal with that but would like to know this first.:S

  • .Charles
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15 Nov 13 #413712 by .Charles
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It is possible for each party to present a Petition each with different case numbers.

The easiest way of dealing with this is for one party to apply to have their petition dismissed. If you both consent to this, the application can be made ''on paper'' without a court hearing.

In your case I assume your spouse issued a petition based on 2 years separation by consent? If so, the petition is destined to fail provided that you do not give consent.

In your case, you must be able to demonstrate that adultery has been committed otherwise your petition will be an uphill struggle.

Charles

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16 Nov 13 #413793 by treaclepie
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No, the Petition was not based on 2 years seperation by consent. BAsically he moved out more than two years ago but becasue he maintained family life still by coming to the home it is classed more as partial seperation and therefore as he is evidentially with the girlsfriend now and we are stil married it is classed as adultery.

  • MrsMathsisfun
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16 Nov 13 #413794 by MrsMathsisfun
Reply from MrsMathsisfun
What Charles is saying is that both of these forms of divorce need the other party to agree and it sounds like your stbx won''t agree to being divorced due to adultery and you wont agree to 2 year separation so neither approach will work and the divorce petition fail on both sides.

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16 Nov 13 #413797 by u6c00
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The rules on adultery as grounds for divorce are pretty strict.

You have to prove a sexual relationship which was the cause of the breakdown in the marriage. You also have to act within 6 months of discovering the adultery.

Accepted proof is a confession from the respondent, photographs of the act (probably taken by a private investigator) or a child from the relationship. If you don''t have one of these, you won''t be successful in your divorce.

It''s not clear from your post that your relationship broke down because of adultery. If he moved out and then met his girlfriend later then the adultery didn''t cause the breakdown of the marriage. Just living with another person of the opposite sex is not sufficient proof of adultery, and especially not if he started living with her after the marriage had already broken down.

Acting within 6 months means either that you initiated the divorce or separated within 6 months, no longer living together. If you''re arguing that you weren''t completely separated to avoid his 2 years with consent, you won''t be able to convince a judge that the adultery caused the breakdown of the marriage if you carried on living together after 6 months.

From the sounds of it, your adultery Petition would be going nowhere, but it would cost you the court fees and your solicitor''s time to pursue an expensive waste of time.

If you''re insisting on divorcing him over a point of pride, you could use unreasonable behaviour citing an inappropriate relationship with a third party as one of your grounds for divorce.

Unless there is some factual evidence that you have been living together in the last 2 years, wouldn''t it be better to let him initiate the 2 years separation with consent, meaning he pays the court fees? 2 years separation is a "no fault" divorce, meaning that each party will meet their own costs.

  • treaclepie
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16 Nov 13 #413800 by treaclepie
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I understand what you are saying. My ex did not leave a few years ago to be with a woman he left this january. He does not live with her he has a one roomed property. My solicitor has said that it can not be on seperation becasuse although he has had a room for some time he slept there but was with us every day, shared food etc, weent on holiday etc.Basically he had left me in his head and I did not really accept that.I think he will now accept adultery but he is in abetter financial position to pay for the court costs than I am. Im wandering if I should contact the CSA or would this make things worse?

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16 Nov 13 #413801 by u6c00
Reply from u6c00
If it were me I would write to your ex, or get your solicitor to, outlining that you don''t consider that you have been separated 2 years and asking whether your ex would admit to adultery.

If he agrees then go ahead with it. If not then you know not to waste your time with it. You can still Petition for unreasonable behaviour and ask for him to pay the costs even if he doesn''t agree to it.

It sounds at the moment like you''re heading for a situation where you each pay £1000 and both petitions fail.

About the CSA, he has a statutory obligation to pay child maintenance, but you don''t have to use the CSA (and there''ll be a charge for you to do so). Why don''t you look at mediation? You could work it all out there, including the petition problems.

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