However, Tanya would have the burden of proving adultery under the MCA (Probert, 2006). The legal definition of adultery was established in the case of Clarkson v Clarkson ((1930 143 LT 775) as being the voluntary or consensual sexual intercourse between a married person and a person of the opposite sex not being the other’s spouse. Tanya would have the onus of proving adultery and that she find it intolerable to live with this on the balance of probabilities. Additionally, in cases involving adultery, section 2(1) of the MCA provides that the parties must not continue to cohabit for more than six months after the petitioner discovers the respondent’s adultery.
If they do so, they cannot rely on adultery as evidenced of irretrievable breakdown. Nevertheless a couple can be considered as living together whilst in the same house for example in Hollens v Hollens ( 115 SJ 327 the couple were found to have been effectively living apart under the same roof as they didn’t speak, eat or sleep together. Moreover, in the case of Mouncer v Mouncer ( 2 All ER 289) the spouses were on speaking terms and occasionally ate together, however they still were held to be living apart for all other intents and purposes as a married couple for the purpose of the section 2(1) MCA provisions regarding post infidelity cohabitation.
Nevertheless, section 2 of the MCA provides that new incidents of infidelity will refresh the six month period every time a spouse discovers an infidelity. Before considering Tanya’s need to prove adultery, it is important to mention that in addition that in petitioning Max on this ground, Tanya would need to establish that living with him was intolerable and the test for this is subjective (Bond et al, 2008).
The Court of Appeal has determined that the intolerable requirement is not solely as a result of the adultery and in the case of Cleary v Cleary ( 1 WLR 73) the Court of Appeal found intolerability as a result of the wife’s subsequent conduct and attitude after her husband forgave her affair. Additionally, in Carr v Carrr ([1974) 1 All ER 1193), it was held that the intolerability requirement was satisfied as a result of the husband’s mistreatment of the couple’s children.
Moreover, in the Cleary case, the Court of Appeal determined that the intolerability has to be genuine and Lord Denning MR asserted that it was not sufficient that the petitioner simply preferred to live with someone else. Therefore in the current scenario whilst Tanya’s cohabitation with Ian will satisfy the living apart requirement, her desire to live marry Ian will be irrelevant to demonstrating intolerability.
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