Life at the Bar – Discretion Statement.

Inner templeBefore the law on Divorce altered in the early 1970’s the petitioner – that’s the person seeking the divorce- had to establish one of a number of matrimonial offences. Cruelty, adultery, or separation for two years were the main causes I remember. And because it was an equitable relief, the clue is in the word petitioner, the husband or wife seeking the divorce had to come to the court ‘with clean hands.’ In practice this caused a lot of problems as very often the petitioner was in another relationship and so the courts had established the procedure known as the discretion statement. In effect, the erring party asked the court to grant their petition for a divorce notwithstanding their own adultery.

Soon after I qualified as a solicitor I had just such a case. The wife, Helen Broad was a glamorous blonde, and she had left her husband and was living with another man. She and I discussed at length how to deal with her discretion statement and agreed on a wording that essentially said she had entered into another relationship and had committed adultery on numerous occasions over the preceding two years. The statement was signed by her and placed in a sealed envelope, as was the practice.

On the day of the hearing of Helen Broad’s petition, we met the barrister, David Fox, I had instructed to appear on her behalf, in the waiting area of the County Court. He towered over both me and the client, as I introduced her to him.

Helen was wearing a pale camel coat, her long hair was loose and she had bright red lipstick. She was the best-looking woman in the room and David took her hand and held onto it for a little longer than necessary, before directing us to a quiet a corner where he could discuss the case and try to put Helen at ease. David manoeuvred his not inconsiderable bulk down onto a chair and pulled it up close to where we were sitting on a bench.

‘Is there a discretion statement?’ he said.

I searched through my file and handed him the brown envelope containing the carefully crafted disclosure. He opened it, his heavy fingers tearing the paper apart and rather more carefully opened the piece of paper inside. He fished his glasses out of his top pocket of his dark pin-striped suit and began to read. The petitioner watched him, her mouth in a wide smile but the eyes suggested she was a little wary.

David looked over the top of his glasses, ‘Don’t you know how many times you have committed adultery?’

Helen Broad looked him straight in the face and said, ‘I don’t count, do you?’

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About scribblingadvocate

Born in Lancashire, Law degree from Sheffield University and MA in Creative Writing from Exeter. A barrister for twenty five years, who appeared in the Crown Courts in and around London. When I retired we moved to live in Devon, first on Dartmoor, more recently overlooking the Exe Estuary. After twenty years I still feel an exile from London. Married, no children but own an affable Springer Spaniel. I love reading, walking and travel. I completed an MA in Creative Writing at Exeter University and have written three books, Crucial Evidence, Reluctant Consent and Legal Privilege, all set in London. You can email me

One response to “Life at the Bar – Discretion Statement.”

  1. David Hutchins says :

    What I remember about discretion statements in the 1960s is that they were contained in a sealed brown envelope which you had to file with the divorce petition at the Divorce Registry in Somerset House(Room 38). At the same time you filed the marriage certificate. When checking the papers you were filing, the clerk would specifically check whether the petition contained, in the prayer, a request for discretion in respect of the petitioner’s own adultery. If that was there, there had to be a brown envelope. Otherwise the petition could not be filed. At the hearing, usually undefended, the judge opened the envelope and read the statement. He would usually make no comment except to say that he was exercising the court’s discretion accordingly. On one occasion, not my case, the judge said that he was exercising the court’s discretion “in respect of the petitioner’s disgraceful fornication with prostitutes”. The petitioner was, or had been, a merchant seaman! Everyone in court was stunned.

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