This week, a reader writes that he has just found out that his wife of seven years has committed adultery and he wants to know how soon he can file for divorce. This seems like a rush decision so I would first ask the reader to halt.
There is no rule that a man or woman must wait and find out when his or her spouse has committed adultery before he files for divorce. The writer did not indicate what he called adultery, but if we were to give the word adultery its ordinary meaning, we can assume what the writer believes his wife had some sexual or inappropriate sexual contact with another man. A woman may also be in the picture, but that might not be called adultery in our society.
Private affair
I believe the first approach after seven years of marriage is to seek counselling. It is recognised that some people are very private and might not wish to discuss their personal affairs with someone else but the offended party must try and talk it over with an approved counsellor, your pastor, a family friend or just someone who is respected by both parties.
In fact, section 11 of the Matrimonial Causes Act (hereinafter called the Act) provides that "Where proceedings for dissolution of marriage have been instituted by a party to a marriage, the court shall give consideration to the possibility of a reconciliation of the parties". Even if the matter goes to court, the judge has the power to adjourn the proceedings so as to give the parties a chance to consider reconciliation. The court may also nominate an approved marriage counsellor to assist the parties. The point here is that the law contemplates that parties to a marriage will have problems and where there are problems, it is not always desirable for one party to rush to the divorce court before an opportunity for counselling and reconciliation.
The reader must also consider that a marriage sometimes involves children and/or properties and, therefore, these factors must be taken into consideration as the effect of separation on the children can be devastating, especially a young child who might not understand and appreciate the complexities of adult life.
Time limit
For completeness, let me say that the section 8 of the Act provides that "No petition for a decree of dissolution of marriage shall be presented, without the leave of the court, unless at the date of the presentation of the petition two years have passed since the date of the marriage". This is not a problem for the reader who has been married for seven years.
The next hurdle is that you must be separated for one year and this one-year period could be part of the two-year period mentioned above. However, this petition should only be presented on the grounds that the marriage has broken down irretrievably. The real test is whether or not the one act of adultery or perceived act of adultery is sufficient to say that the marriage has broken down irretrievably.
It seems that marriage requires the parties to understand each other, it requires tolerance and sometimes requires one party to 'play the fool' without turning a blind eye. Adultery is a serious concern in a marriage but there are some great comeback stories in marriages and yours could be one of them.
Go to a counsellor. Talk it over until there is a solution.
Keith N. Bishop is an attorney-at-law and partner in the firm of Bishop & Fullerton. He may be contacted by email at knbishop@gmail.com.
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