Legal grounds

Affairs and other grounds for divorce

Many people still believe that the courts are interested in the grounds for divorce. This is a common misconception because the truth is, the courts do not care about the reasons for divorce.

When filing a petition for divorce, all that is necessary is that ‘the marriage has irretrievably been disrupted’. This is a catch-all term covering anything that can cause the end of a marriage. This includes an affair, abuse or simply irreconcilable differences which make it impossible to remain married.

Affair and divorce

For many people, an affair is the worst thing that can happen in a marriage. In our practice, of course, we understand this and we are always willing to lend an ear. Life in general, and divorce in particular, is an emotional matter. Someone who is still dealing with the immediate emotional aftermath of a decision to get a divorce, whether or not the decision was their doing, is not always entirely objective. Even less so they can be expected to make sensible decisions in such a fragile emotional state. Often, the first time they come to see us, people just want to offload and at first we try to not talk too much about the details of the divorce process. A recent ruling by the Court of Appeal in The Hague is interesting in light of the above.

Case law

The facts of the case are as following: 

A man and a woman are in a relationship (but not yet married) and they are living together in the man’s house. The woman then discovers she is pregnant and they decide to get married. Before the wedding, they have a prenuptial agreement drawn up by a notary. One of the stipulations of the agreement was: “that, in the event of divorce, the home and the mortgage on it will be included in the divorce settlement”. In 2010 they get married and the baby is born. One year later, a DNA test reveals that the man is not the baby’s father and he promptly files for divorce. The husband feels deceived; he entered into the marriage under the assumption that he and his wife were expecting their baby.

In the divorce proceedings, the husband argues that he cannot be held to the prenuptial agreement, invoking the grounds of reasonableness and fairness. His reasoning is as follows:

  • His wife used her pregnancy to trap him and persuade him to marry her, under the misapprehension that he was the father;
  • The wife was interested only in a financial gain (she was a gold digger, in other words) because the stipulation about the home was included in the prenuptial agreement at her explicit request;
  • His wife should have told the husband about her adultery.

In short, the husband states that the wife misbehaved and that he would never have married her had he known he was not the baby’s father. The court sides with the husband, but the wife appeals.

Court of Appeal

The Court of Appeal takes an entirely different view of the case. The Court argues that the husband had failed to prove that he was not aware of the wife’s deceit at the time of marriage. Therefore he had reason to suspect that he may not be the child’s father. The Court makes this assumption despite the fact that the husband submitted numerous witness statements to the proceedings. What comes to light during the hearing? The husband knew that the wife had already deceived him on a number of occasions. Also, while she was in a relationship with him, the wife had twice fallen pregnant by other men. So, the Court argued, the husband was forewarned when he entered into the marriage.

Perhaps unnecessarily, the Court also considers that, even if it had already been established that the husband was not aware of the wife’s deceit at the time of marriage, the decision would have been no different, because none of the circumstances of this case are so unusual that they justify waiving the prenuptial agreement on the grounds of reasonableness and fairness. The Court believes there is no connection between the prenuptial agreement and presumed paternity.


The only possible conclusion is that, if one party enters into a marriage under false pretenses, little can be done about it. From a legal perspective, that person is treated no differently than the other person who enters into a marriage with the best intentions.

If you have any questions, please do not hesitate to contact us.

Update article: December 2017.