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Ask Clare Your Own Question
Clare, Solicitor
Category: Law
Satisfied Customers: 34233
Experience:  I have been a solicitor in High Street Practice since 1985 with a wide general experience.
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I met my husband 10 years ago, we have been married for 5

Customer Question

I met my husband 10 years ago, we have been married for 5 years.
My husband works as a solicitor in Barcelona, and my work has always been based in the UK, so we have lived seperately during the week, and he returns home every weekend.
Two years ago I found out that he had an affair, he promised to end the affair immediately, which I believe he did, and since his behaviour has been faultless.
We attempted a reconciliation and he continued his normal pattern of working in Barcelona during the week, and flying home every weekend, this has continued over a period of 2 years. However, it hasn't worked out.
I have been told that since finding out about the adultery we cannot have lived together for 6 months afterwards if I want to use adultery as a ground for divorce. However, if we lived seperately during the week, is it only the weekends that count towards the 6 month period?
I have now asked my husband to move out of our UK home, which he has done. As far as I am aware I don't think he has returned to the UK since.
If I cannot use adultery what other options are available to me? In addition, although he confessed to adultery to me, I am worried he won't to the court. If that occurs can I rely on unreasonable behaviour based on the inappropriate relationship with another person, or do I need to prove that too? Are there any defences available to him?
What are my best options to deal with the breakdown of my marriage?
I am getting lots of correspondence from his solicitors so I would appreciate the answers stating where the legislation can be found in the UK law, as obviously he is trying to confuse me with all the legal terminology, and obviously thinks it all goes over my head!
Submitted: 4 years ago.
Category: Law
Expert:  Stuart J replied 4 years ago.
Do you have a specific question?
Customer: replied 4 years ago.

Yes, I have several...

Can I use adultery for a ground for divorce, even though I agreed to reconciliation after finding out. We attempted this over a 2 yr period, although he was working in Barcelona, so only home at weekends. As I can only cohabit with him for 6 months after finding out about the affair, is it only the weekends that will be counted towards this 6 month period (in which case I will be under that) or the entire 2 yrs (even though only seeing each other at weekends)?

If he does not admit to adultery to the court, I presume it is impossible for me to prove it. In that situation can I base it upon unreasonable behaviour? Although I have to admit he has not behaved badly, apart from the affair. Howevver, am I going to face the same problems due to reconciliation of 2 years, albeit at weekends?

Expert:  Stuart J replied 4 years ago.

On these facts, if you raise
the issue, you would struggle with adultery, purely because of your
reconciliation. Just because it was weekends only is immaterial

Unless he admits adultery, my
suggestion would be to forget that is grounds for divorce, reconciliation or not.

The fact that continues to
live in Barcelona and will not return to the UK to live as husband and wife
might be grounds for unreasonable behaviour and to be frank, it is not
difficult to put together a case for unreasonable behaviour.

It might be worth having a
chat with him because remember that a petition for adultery is short, sharp and
to the point, and there is no reason to mention anybody's name. You petition
for it, and he agrees to it. Bang, done and dusted.

In addition, any solicitor's
costs are possibly going to be lower because there is no arguing.

Mention to him also but it doesn't
matter why you get divorced and who is at fault, any financial settlement is
exactly the same. The court does not apportion blame.

If you are unreasonable,
speaking terms, by all means, show him this thread, or ask him to post a
question if he thinks that you may not be altogether straight with him

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The thread remains open for us to continue this exchange

Customer: replied 4 years ago.

Thank you for your reply.

I have been searching the internet and law websites all day, to find out that it says in s.2(1) of the Matrimonial Causes Act 1973 that if after finding out about adultery you live with them for more than 6 months, OR A PERIOD EXCEEDING 6 MONTHS, that will be a bar to me using adultery.
Where in the legislation does it say that cohabitation is still classified if 1 spouse lives abroad, the law implies they have to live together under the same roof. Surely the weekends need to be added up to see if they exceed 6 months? If that is not the case, where is the legislation/case law determining this?

When searching I have seen it is relevant to cases of divorce on desertion and living apart for 2 or 5 yrs, but cannot for the life of me find any legislation in the MCA 1973 relating to couples who have attempted reconciliation but live seperately for the majority of the time. All legislation in this respect seems to deal specificaly with couples, that although live seperately are classified as cohabiting until one spouse comunicates to the other this is not the case.

I do not want to wait the 2/5 yrs so I would be grateful if you could find where in the MCA 1973 it states that working abroad spouses are still classed as living together for the purpose of reconciliation prior to divorce on grounds of adultery.

Expert:  Stuart J replied 4 years ago.

The weekend only
reconciliation has nothing to do with it. A long-distance lorry driver might
only be home on Saturday night and Sunday night, but that does not mean that he
is living apart from his spouse.

It is not a case of adding up the days to see if it makes six months.

If you dont want to wait 2/5 years, divorce for unreasoanble behaviour.

If he wont admit adultery, you will struggle with that ground in any event.

You seem determined to divorce for adultery for some reason.

Customer: replied 4 years ago.
Thank you, ***** ***** is the legislation containing that? S.6(2) MCA states what you are saying but only in relevance to desertion grounds for divorce. Where does it say you are still classed as cohabiting for the purpose of reconciliation after adultery?
Expert:  Stuart J replied 4 years ago.
It is decided by the court. Not every legal decision is written in statute. Each case is looked at on the facts
Customer: replied 4 years ago.
Which in turn is based on precedent .... There must be some case law supporting this then?
Expert:  Stuart J replied 4 years ago.

It is uneconomical for me to research extensive caselaw.

Opting out.

Expert:  Shantal-Mod replied 4 years ago.


It seems the professional has left this conversation. This happens occasionally, and it's usually because the professional thinks that someone else might be a better match for your question. I've been working hard to find a new professional to assist you with your question, but sometimes finding the right professional can take a little longer than expected.

I wonder whether you're OK with continuing to wait for an answer. If you are, please let me know and I will continue my search. If not, feel free to let me know and I will cancel this question for you.

Thank you!


Expert:  Clare replied 4 years ago.

Hi My colleague is correct - the issue is not whether or not you were physically living together on each day but whether or not you considered yourself still to be living together as husband and wife during this time. The Court will give you short shrift if you try to argue that you only counted the days you were together. In any event without his specific admission to physical intercourse then the Petition will fail.

Far better to rely on Unreasonable Behaviour - since none of us are perfect it is very easy to prove