Section 9 of the Adultery and Enticement Act 1988 sets out what answers a defendant.
A defendant to an action under this Act may, without prejudice to any other defences which he may raise, raise any or all of the following defences —
(a) that the person entitled to bring the action has, prior to the commission of the act of adultery or enticement, consented to it; or
(b) that the person entitled to bring the action has, after learning of the act of adultery or enticement, forgiven the defendant; or
(c) that the defendant believed on reasonable grounds that the spouse with whom the act of adultery or enticement was committed was not married.
Where, on evidence, a defence is established under subsection (1), the Court shall dismiss the action.
Reading the defences
| Defence | Timing | Whose state of mind |
|---|---|---|
| (a) Consent | Before the act | The complainant’s |
| (b) Forgiveness | After learning of the act | The complainant’s |
| (c) Reasonable belief | At the time of the act | The defendant’s |
Both look at the aggrieved spouse. Paragraph (a) asks whether they agreed in advance; paragraph (b) whether they forgave afterwards.
Paragraph (b) is carefully worded: forgiveness must be given after learning of the act. A general statement of forgiveness made in ignorance of what happened is not within it.
These have close analogues in divorce law. Sections 27 and 28 of the Matrimonial Causes Act (Chapter 282) make condonation — forgiveness — and connivance — consent or encouragement — bars to a decree.
A person who has an affair with someone they reasonably believe to be unmarried has done nothing to interfere with a marriage they knew nothing about.
The belief must be on reasonable grounds — an objective test. A defendant who suspected the truth and did not ask, or who ignored obvious indications, is unlikely to satisfy it.
Paragraph (c) is available only to the outsider. A spouse sued under section 4(1)(a) can hardly claim to have believed they themselves were not married.
The defence is important given how wide the definition of “spouse” is: section 1 includes a party to a relationship between a man and a woman which can reasonably be considered as a subsisting relationship having the status of a marriage. A person may be a spouse for the Act’s purposes without any ceremony or certificate — which makes reasonable belief a real question.
“Without prejudice to any other defences”
Section 9(1) expressly preserves any other defences which he may raise, and a defendant may raise any or all of them together.
The act was not voluntary. Section 2 requires voluntary sexual intercourse. A person who did not consent has committed no act of adultery.
The complainant was not a spouse. Section 1 requires a subsisting relationship. If the marriage or relationship had already ended, there is no spouse and no action.
The action is out of time. Section 7 — six months, extendable to nine on reasonable cause.
The act did not occur. The complainant must prove it on the balance of probabilities — section 19.
No persuasion or attempt. For enticement under section 3, the defendant must have persuaded or attempted to persuade.
Section 9(2) — “shall dismiss”
Where a defence is established on evidence, the Court shall dismiss the action. It cannot make a reduced award, or dismiss as against one defendant while awarding against another on the same footing.
The words “on evidence” matter. A defence must be proved, not merely asserted — to the civil standard, since section 19 applies proof on the balance of probabilities to proceedings under this Act generally.
Compare section 29 of the Matrimonial Causes Act, where the analogous matters are discretionary bars: the Court may refuse a decree, or may grant it despite them.
The defence in the sequence of a case
Compensation may be ordered where —
(a) mediation under section 10 has failed; and
(b) the Court is satisfied on the hearing that the act of adultery or enticement was committed; and
(c) a defence under section 9 has not been established.
So a section 9 defence is the third of three hurdles between a complaint and an order. Where it succeeds, the action is dismissed and no question of compensation or of assessment under section 16 arises.
Sources
- Adultery and Enticement Act 1988 — ss 1–3, 7, 9–11, 16, 19
- Matrimonial Causes Act (Chapter 282) — ss 27–29
Before relying on anything here, read the current text of the Marriage Act (Chapter 280) and check for later amendments. If a decision matters to you, get advice — start with the Office of the Public Solicitor, or find a firm in the law firms directory.