My Spouse is an Adulterer — Does that Entitle Me to Everything?

Husband Holding Hands With Girlfriend's Friend Sitting On Bench Outdoor

The unfortunate circumstance of ending a marriage because your spouse is an adulterer can be a painful reality for many people. Whether it ended because of a single affair, multiple affairs or a secret second relationship, you probably are wondering how this will affect the entire divorce process. 

The laws in Ontario are governed by the federal Divorce Act and there are multiple sections that can be applicable to such a case, depending on the circumstances. Understanding the main criteria and if it is applicable to you should be discussed with a lawyer. With a significant amount of experience in divorce law, Epstein and Associates will be able to address any questions or concerns you may have during a challenging time like this. 

Cheating Spouse & Divorce

Within the Divorce Act, there are multiple stipulations around if adultery is grounds for a marriage termination. A court of competent jurisdiction may, on application by either or both spouses, grant a divorce to the spouse or spouses on the ground that there has been a breakdown of their marriage. A breakdown in the marriage constitutes as: 

  1.  the spouses have lived separate and apart for at least one year immediately preceding the determination of the divorce proceeding and were living separate and apart at the commencement of the proceeding; or
  2. the spouse against whom the divorce proceeding is brought has, since the celebration of the marriage,
  3. committed adultery, or
  4. treated the other spouse with physical or mental cruelty of such a kind as to render intolerable the continued cohabitation of the spouses.

This statement means that a cheating or adulterous spouse is a direct means for a divorce being granted. 

Having said that, there are some evidentiary issues in proceeding with a divorce based on adultery that cannot be overlooked, and in fact, may make the divorce process more complicated.

Cheating Spouse & Child Custody

If you do share children with a soon to be ex-spouse, there are certain rules within the Divorce Act that specifically prevents the consideration of the past conduct (i.e. cheating) of a parent in making a custody access order. 

The only variance here is if the conduct of the said parent is relevant to the person now being unable to parent the child, then other measures and custody laws come into play. For example, if a parent has a history with drugs or alcohol then that can affect child custody.  For the most part, in Ontario, the laws surrounding separation reflect a no fault system. 

Since no two divorce cases are the exact same, it is very important to speak with a lawyer about your situation and have them advise on your case. There are many cases where rules are applicable but not highlighted or easily understood from online resources and this is something that will be determined by your lawyer. 

Cheating Spouse & My Funds

If your spouse’s actions have already shown them to be deceitful and dishonest, it would warrant taking quick action to protect your finances as well. If that is the case then it may be best to request a court order to freeze assets.

This will prevent anything from being removed without permission and taken from you without your knowledge. The account will remain frozen until it is appropriate to release the funds, or until the two of you have agreed upon the division of the funds in the account.

Conclusion

When it comes to a cheating spouse, if your goal is divorce, your first step should be to have a discussion with legal representation. 

If you have any questions or would like to speak with anyone from the Epstein and Associates team please feel free to contact us now.