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How Adultery Affects Divorce: 5 Questions You Were Afraid To Ask

06/02/2017 09:19 EDT | Updated 06/02/2017 09:19 EDT

As a divorce attorney, I've seen marriages dissolve for reasons that run from the trivial to the deadly serious. But there's one cause of divorce that seems to draw the most attention: adultery.

Perhaps because we consider marriage to be a contract of love, adultery seems like the most serious abrogation of a couple's vows to each other.

Naturally, people are curious how the law treats this subject, but I've noticed that my friends and acquaintances are afraid to ask about it for fear that it'll make them look bad.

With that in mind, I decided to compile a list of the five biggest questions people have about adultery, divorce and the law. You might think of this as everything you've ever wanted to know about adultery, but were afraid to ask.

adultery

In Ontario (as elsewhere in Canada), the laws relating to divorce based on adultery are governed by the federal Divorce Act which provides that a "breakdown of a marriage is established only if the spouses have lived separate and apart for at least one year or the spouse against whom the divorce proceeding is brought has committed adultery or treated the other spouse with physical or mental cruelty." (Note that it must be the other party who commits the act; a spouse cannot apply for a divorce based on his or her own adultery.)

Adultery, then, is one of the established grounds for divorce in Canada. But the questions often arise as to whether the duration, extent or nature of the adultery matters when it comes to the right to obtain a divorce.

1. Does it matter how long the affair was going on?

No. Provided that it can be proven that adultery has been committed by one of the spouses, the other spouse can ask for a divorce. However, it should be noted that the adultery must have occurred before the petition for divorce is brought.

2. What if the extramarital sex occurred only a single time? What if the spouse is remorseful?

A single act of adultery is a sufficient basis on which to bring a divorce action. And technically speaking, as long as the adultery was committed by one of the spouses, the other spouse has legal grounds under the Divorce Act to proceed with a petition. Whether or not the spouse actually wants to do so, in light of prospects of forgiveness and reconciliation, is a personal decision.

3. Do you need clear proof of an affair? Is it enough to suspect that something is going on?

In order to prove adultery, there is no prerequisite that the other spouse gets "caught in the act," or that there be photos or other physical evidence of the affair. Instead, as with all civil actions, a court must be satisfied on a "preponderance" of credible evidence that adultery has taken place. (For example see Nelles v. Nelles).

This can take place by inference, that is, where the facts and circumstances lead to the reasonable conclusion that adultery has indeed taken place. However, a mere suspicion of adultery is not enough, nor is evidence that the other spouse had the opportunity to cheat (see Doucette v. Doucette).

Also, there is no requirement that the party with whom the adultery is taking place must be named or identified.

In order to qualify as "adultery," there must be an actual, physical sexual relationship between one of the spouses and a third party to the marriage.

Finally, it is the spouse who wants to bring the divorce action who must bring forward the convincing evidence that adultery actually took place. There is nothing unusual about the type of evidence required; however, the evidence will be considered sufficient if the adulterous spouse admits to the affair (see for example d'Entremont v. d'Entremont), or if the third party with whom the spouse is having the affair gives evidence attesting to the fact (see Vickers v. Vickers).

4. What if the husband had an affair with another man? Or the wife cheats with another woman?

Yes. Historically, Canada's Divorce Act defined adultery along the same lines as the former definition of "spouses," which involved only people of the opposite sex. Adultery was similarly defined by the courts as consisting of voluntary sex outside of marriage, between a spouse and someone of the opposite gender.

However, both the definition of "spouse" and the concept of adultery has been expanded by the courts to encompass same- sex relationships. In a 2005 case called P. (S.E.) v. P. (D.D.), a B.C. woman was granted a divorce after it was shown that the husband had committed adultery by having an affair with another man.

5. What about cheating over the Internet and emotional affairs?

In order to qualify as "adultery," there must be an actual, physical sexual relationship between one of the spouses and a third party to the marriage. Phone sex and other forms of sexually- charged activity -- if conducted "from a distance," so to speak -- do not generally qualify as "adultery" as that term is used in the Divorce Act.

Although these cases are often interesting and quite sad, for most Family Law practitioners in Ontario these circumstances do not form the basis for their clients' divorce claims. The court does not want spouses to focus on fault and blame, but rather resolution. For the most part, blame does not improve or diminish one's property rights or entitlement to share family property in Ontario. And the practical reality is that an application for divorce based on cruelty or adultery may take a few years before the matter is finally determined if a full hearing is required. If this is the case, then the party seeking the divorce could also likely rely on the fact that he or she has lived separate and apart for one year and use this as the basis for the divorce claim.

This is an excerpt from Russell Alexander's new book, "The Path to a Successful Divorce: Russell Alexander's Guide to Separation, Divorce and Family Law".

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