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Vardags Family Law Essay competition 2023/24 | Anisah Uddin

Anisah Uddin - University of Roehampton

Family Law Topic: To bestow legal rights and General damages to the victims of adultery to compensate for the psychological harm endured.

Going through a divorce is an emotional and draining process for both parties, but when a spouse has committed adultery the betrayal is harder to navigate and come to terms with. The No Fault Divorce Act 2022 is useful for helping parties gain a divorce without needing to assign blame or prove poor behaviour of their significant other, but has also created the delusion that one party cannot be the primary cause in the breakdown of a marriage and allows partners who commit adulterous acts to deflect blame for their immoral actions. My proposition for reform in UK divorce law is not to demolish the No Fault Divorce Act but instead allow people who have been cheated on in their marriage to sue for emotional damages. This aims to be a financial sanction for the party who did commit adultery and provide justice for the victim. I believe the false paradigm of making the reason for a divorce irrelevant as unfair to the innocent party and should be rectified. This is because downplaying one partys suffering to prevent the deceitful party from the harsh reality of their actions is unjust and undeniably favouring one persons emotions over another.

Marriage is the most important contract a person can sign and therefore the same consequences for breaking this contract should be implemented. When a party signs a marriage contract, which is legally binding, then breaks the terms in the contract they should be charged for negligence in the same way a party who has breached a regular contract should such as specific performance, termination of contract or financial compensation. Specific performance is the court compelling a party to fulfil their contractual obligations. This is unconstitutional for clear humanitarian reasons as you cannot force a person to stay married to another person. Divorce is already a direct termination of a marriage contract but when sexual infidelity is committed within a marriage it causes emotional distress and can destroy a partys financial and emotional state. For example if a wife or husband is completely reliant on their significant other financially and is blindsided by the adultery that has taken place, they would be cut off from his/her primary provider. Even though an ex partner is entitled to alimony and child support (if they have a child) they also have to pay an equal or immense amount of court fees for the divorce. This is incredibly unfair to the party who has been betrayed and did not break their end of the contract. For this reason a financial compensation given to the victims of adultery is a justified request. This sanction should not interfere with any prenuptial or postnuptial agreements and is merely a financial consequence for breaking the contract of marriage in which both parties legally and morally abided by.

Compensatory damages were created to give a sum of money to a party to compensate for losses relating to or resulting from the termination of the contract. Special damages and general damages are terms used in contract law to identify the types of damages a claimant can sue for. Special damages were created to cover the cost of any immediate consequences resulting from the breach of contract such as medical treatment for injuries. However, general damages cover the cost of any financial losses indirectly caused by the breach of contract which cannot be mathematically reviewed meaning claimants can sue for personal damages such as emotional distress, mental health conditions and loss of consortium. Claiming damages for the psychological harm an unfaithful ex partner has endured on you during and after a divorce is settled can link to general damages. This is because adultery causes indirect,psychological consequences to the victim that damages their self esteem and mental capacity to enjoy/complete everyday tasks for a long period of time.

If a claimant can sue for emotional distress after their contract has been neglectfully breached by the defendant, why shouldnt a party in midst of a divorce have the same right after adultery has taken place?

Dr Dennis Ortman is a private psychologist specialising in those who suffer from emotional problems, addictions and wrote the book Transcending Post-Infidelity Stress Disorder: The Six Stages of Healing in 2009, where he explains Post-infidelity stress disorder (PISD) and the emotional trauma which comes with it. PISD is an anxiety disorder triggered by adultery whereas PTSD is an anxiety disorder triggered by traumatic events such as war. Even Though these disorders are triggered by different experiences, Dr Dennis Ortman states PISD has similar, equally severe symptoms to PTSD such as having flashbacks, obsessions with the event that caused them trauma, distrust of others, loss of sleep and paranoia. He states living with these symptoms prevents a person from living a good quality of life as their mental health would worsen and they would lose interest in activities they enjoyed previously. Therefore, parties who suffer from PISD have higher anxiety in everyday life and are likely to become mentally and physically ill. After discovering a partners adultery in marriage, 30% to 60% people experience symptoms of depression and anxiety which leads to long term negative effects on their mental health and quality of life. This statistic showcases the immense amount of people who are negatively affected by adultery, suffer from PISD without even knowing and shows this disorder is currently going unnoticed by the general public. Even though PISD does not happen to everyone who is a victim of adultery, the symptoms caused because of it can last for weeks or even years after the adultery took place, making them stuck in the traumatic event with no help or compensation to get out.

The Armed Forces Compensation Scheme (AFCS) provides soldiers, who have PTSD or injuries because of their PTSD, financial compensation for the permanent, emotional damage their service has caused them even though they voluntarily participated in war and knew the risks which came with it. As medical professionals such as Dr Dennis Ortman regard PISD and PTSD symptoms as similar and equally damaging to a persons mental health, a claimant should be given the same opportunity to sue for emotional distress caused from the infidelity in their marriage. The fallacy that there should be equal blame in a divorce is a delusion which contradicts with the reality of a breakdown in a marriage and the causes behind it. If one spouse has caused emotional distress to the other party by being disloyal, they should simply take accountability for their actions. The AFCS acknowledges they are responsible to compensate for the general damages caused by PTSD, meaning the UK legislative system also accepts that claiming general damages for PTSD is not a delusional request to ask but instead is virtuous and fair to those who are burdened with the traumatising symptoms of PTSD everyday. Because of this, parties should also have the opportunity to sue for general damages in a divorce after being cheated on as specialised psychologists fight for the recognition of PISD and argue that the negative symptoms of PISD are indistinguishable from PTSD symptoms and effects.

Furthermore, infidelity can be seen as a form of domestic violence (DV) as it is harmful, emotionally manipulative and similar to emotional abuse which causes long term consequences on the victims mental health and well-being. Many cheaters gaslight their significant others through manipulation to ensure they do not discover their deceit and use methods such as blame shifting,verbal abuse and emotional abuse. Blame shifting is a common method used by cheaters to deflect accountability of their actions onto their partner by degrading them and twisting the reason for their infidelity from temporary lust to a plea for help. Making a person feel it is their fault for their partner seeking an escape or companionship from a third party outside of their marriage can make a person have more self doubt and increases the risk of a mental breakdown. Another strategy used is verbal abuse which is degrading a person to make them feel unworthy of love and respect from others. Cheaters may use this type of abuse to trap their significant others in the relationship by making them think they can not do better or they are at fault for acting a certain way. Emotional abuse is very similar to verbal abuse and blame shifting as it relies on gaslighting your partner to get your way, such as denying the cheating ever happened and instead accusing the faithful partner or adultery or being paranoid. In many DV cases, where the same type of abuse is experienced, the victims have the right to go to court for financial compensation for the emotional control they have experienced from their former partner. In 2015 Nick Clegg - the UK Deputy Prime Minister from 2010 to 2015 and the Liberal Democrats Leader from 2007 to 2015 - stated DV is not limited to physical violence and can be classified through many other types of abuse such as psychological, sexual,emotional and financial as 91% of DV victims are psychologically and emotionally abused. Adultery can be classified as a form of DV due to the similarities I have provided above of the common methods used by abusers and cheaters to maintain control and the almost identical effects this has on their victims. For this reason, those who are a victim of adultery should be categorised as victims of DV, giving them the right to sue for compensation for the abuse they experienced and the mental repercussions caused from the abuse as well.

Legislation condemning adultery is not uncommon as many countries share the view that unfaithfulness in marriage is unacceptable and justifiable to be brought as a civil case. According to Forbes six states in America allow parties to sue for alienation of affection: North Carolina, Hawaii, Mississippi, New Mexico, South Dakota and Utah. Alienation of affection allows a party who is or was currently married to sue a third party for interfering in their marriage and causing it to break down. Often these claims are brought against the affair partner for interfering in the marriage and can be seen as a homewrecker law. Alienation of affection is a civil claim meaning a party would file a suit to gain compensation for the interference in their marriage by an affair partner. This law can be seen as impractical and outdated as the UK no longer allows this civil suit, but in the states they still believe in protecting both parties in the marriage and recognise compensation for the faithful partner as justifiable. The most recent civil cases for alienation of affection was in North Carolina 2019 where a man was awarded $750,000 from his ex wifes lover for the affair which took place and in 2018 an affair partner was ordered to pay $8.8 million to the husband after the defendant had an 16 month affair with his wife. I understand any law made for victims of adultery can be taken advantage of by the public, difficult to charge and challenging to calculate as well as being incredibly emotional, but this law and any law created do and should have strict guidelines and requirements in order to to sue therefore preventing any misjustice to occur. Because of the immense amount of marriages ending due to adultery legislation allowing parties to claim compensation is necessary, especially for those who are diagnosed with PISD.

Furthermore, In the military and many conservative Bible Belt states in America such as Arizona, adultery is a chargeable offence that has been codified into state and military articles. For example the Military Justice Article 134 classifies adultery as a disorder and neglect,making it an indictable offence. If a service member commits extramarital sexual conduct they can be fined, discharged from their service and have the possibility of serving time in jail. Even though these charges are not consistently given out, the US government and military do condemn these acts and see adultery committed by members of the military as an indictable, morally inexcusable offence. Therefore gaining compensation after being cheated on by your partner for the emotional trauma the infidelity has caused is not an idealistic, far fetched idea and instead is a fair solution to an emotionally traumatising situation, which is used frequently by military organisations and various American states.

Adultery is clealy a grey patch within UK divorce law where help for the victims of adultery who suffer from PISD is near to non-existent and underdeveloped. Divorce is an emotional and personal process to its core, so legislation created to deal with this issue should also be built on emotions and morals rather than objective views and dismissive legislation. To conclude, the idea of permitting parties, who have been cheated on by their spouse, to sue for emotional damages is a sensible approach for helping victims of adultery deal with the psychological trauma they are burdened with and acts as a sense of atonement and restitution for the claimant.

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Bibliography (Secondary sources):

Websites:

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Textbooks:

  1. P. Nicholas, S. Ann & W. Richard, Pearson BTEC National Applied Law (2017)
  2. P. Nicholas, S. Ann & W. Richard, Pearson BTEC National Applied Law (2017)
  1. P. Nicholas, S. Ann & W. Richard, Pearson BTEC National Applied Law (2017)
  2. P. Nicholas, S. Ann & W. Richard, Pearson BTEC National Applied Law (2017)
  3. P. Nicholas, S. Ann & W. Richard, Pearson BTEC National Applied Law (2017)
  4. P. Nicholas, S. Ann & W. Richard, Pearson BTEC National Applied Law (2017)
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