Divorce can be an unfortunate event but a necessary step for people in an unhappy marriage. Still, if adultery is involved, it can be a whole different case.
There can be a certain level of animosity involved as the spouse who was cheated on may take it as a massive betrayal and seek revenge or punitive measures against the adulterer.
However, you may be wondering how does adultery affect divorce in Canada? Well, in this article, we answer that and more. Read on to learn more.
What are the Grounds for Divorce in Canada?
Couples cannot obtain a divorce just by agreeing to do so. The breakdown of the marriage must be proven to the courts.
Marriage breakdown is the sole ground for divorce, and it can be proven in three ways:
A spouse can seek divorce at any point if their partner has committed adultery, even if the spouses have been separated. Having voluntary sex with someone else can be used as valid grounds for a divorce.
A spouse can also look for divorce at any point if they were treated with cruelty by their spouse. Cruelty can include physical violence and mental distress caused by the other spouse. The applicant must prove that the cruelty took place, that its effects were severe and that it made a living together close to impossible.
Separation of one year or more
Both spouses may apply for divorce because of a marriage breakdown resulting from a separation of a year or more. It does not need to be a joint decision. As long as one spouse wants the divorce and they have been separated for over a year, that is enough.
Although a divorce petition can be filed before one year elapsed, the court will not hear the case before that year. Applying early means the case can be heard quickly after the separation period but note that the petition must be filed after the couple is separated.
What is Adultery?
Although you may understand what adultery is, in the courts, adultery is defined very strictly. To qualify as adultery, there must be a physical and sexual relationship between one of the spouses and a third party to the marriage.
Phone sex, sexting or any other sexually charged activity from a distance cannot be considered adultery under the Divorce Act.
How Does Adultery Affect Divorce Settlement?
Many are under the assumption that if their spouse is guilty of adultery, it may entitle them to a larger divorce settlement as they believe they are a victim and therefore deserve a favourable financial settlement.
However, this is a misconception. In almost all cases in Canada, the financial settlement for divorce is the same. The court only looks to see if the grounds for divorces have been met.
Here are the impacts of adultery in divorce settlements:
Impact on spousal support
Adultery may have little to no impact on the spousal support arrangement, but that depends on whether your spouse has moved in with their lover or not. If they have, it can be used as grounds to deny them payment. Theoretically, they are getting some financial support from that person.
Impact on child custody
Divorce resulting from adultery in Canada does not impact child custody. No matter what the spouse has done in terms of adultery can affect the child custody process and the amount of child support to be paid. The right to visitation will not be impacted as well.
Impact on property settlement
While it may seem unfair, adultery will not impact the settlement of the property. You cannot seek to take a more significant share or even all of the property to seek revenge against your spouse. If you seek to follow this path, you will make it harder to settle and thus lead to a more expensive divorce.
You and your spouse are entitled to 50% of the marital property no matter what happens. However, if your spouse has moved in with their lover, you may use this to improve your bargaining position. But you won’t get a large majority of the assets. The division will still be close to 50/50.
Expenses incurred during the affair will be attached with the alimony
If the spouse who committed adultery used family money to fund his lifestyle, the other spouse might claim compensation from the court. If the court finds sufficient evidence to this effect, they may add further payments to be attached with alimony payments.
What to Consider When Filing for Divorce on the Grounds of Adultery?
When filing for divorce on the grounds of adultery in Canada, there are a few things you must consider:
- The courts will require proof that adultery took place, either in the form of an affidavit or testimony
- Just the suspicion of adultery is not enough
- A single act of adultery is a sufficient basis for divorce
- It is not important how long the affair took place
- The adultery must have taken place before the divorce filings were brought
- There need to be actual physical and sexual relations to be considered ‘adultery.’
- The person the adultery was committed with can choose to be unnamed in the proceedings
Although what has happened is unfortunate, when it comes to adultery divorce cases in Canada, the court is not out to assign blame for a divorce.
Their primary purpose is to resolve the issue. Many spouses believe they are entitled to a higher share of the marital property, but in most cases of divorce due to adultery, the property is split evenly. Child care and alimony are also the same as in any other divorce.
Instead, it can be said that a divorce case based on adultery can be a long and arduous one which can also be quite expensive when all is said and done.
Frequently Asked Questions
You may have a few common concerns like many others who faced a similar situation. Therefore, we have answers to the most frequently asked questions regarding how adultery affects divorces in Canada:
Does the duration of the affair matter?
No. If it can be proven that one of the spouses committed adultery, then the other can seek a divorce. However, the adultery must have occurred before the divorce petition.
What if the extramarital affair occurred only once and the spouse is remorseful?
Even a single instance of adultery is sufficient to seek divorce. As long as adultery was committed by one of the spouses, the other spouse has grounds to proceed with a petition but if they decide not to pursue this course of action is their prerogative.
Is suspecting that adultery has taken place enough?
You do not have to provide physical evidence in photos or video or even ‘catch them in the act’ to prove that adultery occurred. Instead, just like in all civil actions, the court needs to be satisfied with a ‘preponderance’ of evidence that adultery has occurred.
This means that if there is other evidence, you can infer that adultery has occurred, such as hotel bills or questionable behaviour. Just the suspicion that adultery took place nor evidence that the other spouse had a chance to cheat is not evidence enough.
If the other spouse admits to having committed adultery or if the person with whom they committed adultery comes forward and attests to the fact, it is enough for the court.
What if the spouse commits adultery with someone of the same sex?
Although historically, Canada’s Divorce Act only considered adultery if the people of the opposite sex were involved. However, the definition of spouse and adultery has been expanded to include same-sex relationships.
A recent case saw a woman be able to prove to a court that her husband had cheated on her by having an affair with another man.
What about cheating over the internet and emotional affairs?
For a relationship to be considered adulterous, there must be an actual physical relationship between one of the spouses and a third party. Phone sex, sex over a video call, sexting, or other sexually charged activity that does not involve physical touching and takes place from a distance does not qualify as adultery as per the Divorce Act.