Section 17(a) of the Matrimonial Causes Act (Chapter 282) is the oldest and most frequently pleaded ground.
Section 17(a)
That, since the marriage, the other party to the marriage has committed adultery.
“Since the marriage”. Conduct before the marriage is irrelevant, however recent.
No minimum period. A single act suffices. Contrast desertion (two years), cruelty (one year) and separation (five years).
The other party. The petitioner must prove the respondent’s adultery. The petitioner’s own adultery is a discretionary bar under section 29(a).
One of three grounds available within three years
Section 31 does not require leave for proceedings on one or more of the grounds in section 17(a), (c) or (e), and on no other ground.
So adultery, wilful and persistent refusal to consummate, and rape, sodomy or bestiality may be relied on within three years of the marriage without leave — but only if no other ground is also pleaded.
Section 33 — joinder of the alleged adulterer
Where, in a petition or in an answer, a party is alleged to have committed adultery with a specified person — whether or not a decree is sought on the ground of the adultery — that person shall, except as provided by the Rules, be made a party to the proceedings.
Naming a person as the adulterer brings them into the litigation as a party. They may be served, may appear, may be represented, and may face a claim for damages under section 32.
Section 33(3) gives them a way out: after the close of the case for the party alleging the adultery, the person may apply to be dismissed from the proceedings if the court is satisfied there is not sufficient evidence that they committed adultery with the other party.
Section 33(2) applies a lesser rule where rape or sodomy is alleged against a specified person: they are served with notice and are entitled to intervene, rather than being made a party.
The requirement is subject to the Matrimonial Causes Rules — see the Rules.
Proving adultery
Section 80 governs the standard of proof in matrimonial causes.
Section 83 deals specifically with evidence as to adultery, and section 82 with evidence of non-access.
Section 81 deals with the evidence of husbands and wives, and section 85 with evidence of rape.
Direct evidence is rare. Adultery is ordinarily proved by inference from opportunity and inclination — cohabitation, hotel records, admissions, and the birth of a child to whom the respondent cannot be the parent, which is where section 82 on non-access operates.
The bars that apply to adultery
| Provision | Bar | Absolute or discretionary |
|---|---|---|
| s 27 | Condonation or connivance at the adultery | Absolute |
| s 28 | Collusion with intent to cause a perversion of justice | Absolute |
| s 29(a) | The petitioner’s own adultery, uncondoned or revived | Discretionary |
| s 29(b)–(d) | Petitioner’s cruelty, desertion, or conduct conducing to the ground | Discretionary |
Section 27 prevents a decree on any ground in section 17(a) to (k) where the petitioner has condoned or connived at the ground.
Condonation is forgiveness with knowledge, followed by resumption of the relationship. A spouse who learns of the adultery and continues to live with the other as husband and wife may be held to have condoned it — though section 29(a) contemplates that condonation may be revived by subsequent misconduct.
Damages and the separate statutory action
Section 32 allows a petitioner who pleads adultery to claim damages from the person named, subject to conditions — including that no damages may be awarded for an act of adultery committed more than three years before the date of the petition, and that section 32(5) abolishes the action for criminal conversation.
Separately, the Adultery and Enticement Act 1988 provides a standalone statutory action for compensation that does not depend on any divorce proceeding, and is available to spouses of a customary marriage as well — see who may bring an adultery action.
Sources
- Matrimonial Causes Act (Chapter 282) — ss 17, 27–33, 80–85
- Adultery and Enticement Act 1988
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.