This post was originally published on August 21, 2019, and has been updated as of January 3rd, 2023.
Adultery can complicate a divorce case and may affect how decisions are made regarding child custody, property division and spousal support. For example, if a spouse has committed adultery during the marriage, courts may take this into account when considering an uneven split in property division.
In some cases, a spouse’s adultery can be used to deny them spousal support and the court may not consider their contribution to the family’s financial affairs and resources. However, each case is unique and it is important to seek legal counsel for advice on your specific situation.
The federal Divorce Act governs what happens in divorce cases in Canada. According to the Act, adultery is considered one of the grounds for divorce, alongside other elements such as physical or mental cruelty.
Grounds for Divorce In Canada:
- You have been living apart for one year or more
- Adultery – where the spouse against whom the divorce is brought, has committed adultery
- Physical and Mental Cruelty – where the spouse against whom the divorce is brought, has treated the other one in either a physically or mentally cruel manner
What happens if you file for Divorce on the Grounds of Adultery?
If you file the divorce, you can do so without having to wait to be separated for a year, so in this respect, if the divorce petition is uncontested by the other party, you might be able to finalize a divorce more quickly.
In the case of any divorce, however, you will legally have to wait 31 days after the divorce was granted before it takes effect so you will not be able to remarry until after this time period at which point you can get a divorce certificate as legal proof of the dissolution of the marriage.
If you file on the grounds of adultery and the divorce is contested by the other party, this is where matters become a little more complex and you will usually need to consult a divorce lawyer to represent you in court.
How do you Prove Adultery in a Divorce?
The court has to be satisfied that the adultery took place. Either the accused spouse needs to admit it took place, the third-party with whom they had the affair gives evidence admitting to the affair, or the spouse bringing forth the divorce has to provide convincing evidence which leads the judge to the reasonable conclusion that the adultery did in fact take place.
This is not to say that the accused has to be caught red-handed or that there needs to be physical evidence of an extra-marital affair, but when all the facts and circumstances are considered, the court needs to agree that it happened.
What If the Adultery is Condoned?
In some cases, a spouse can decide not to proceed with the divorce even though there may be clear evidence or an admission of adultery. This can happen if the spouse is willing to forgive the other and is willing to continue living with them. This is known as ‘condonation’ and it essentially prevents a divorce on the grounds of adultery from being granted.
If you are considering divorce due to adultery, it is important to consult with an experienced divorce attorney who can help you understand your rights and options.
Under the Canadian Divorce Act, one single act of sexual intercourse can constitute grounds for divorce. This needs to be a physical act; interestingly, online or telephone exchanges do not constitute the sufficient definition of “adultery”.
Although you will not have to be separated for a year before filing for divorce on the basis of adultery, if things are drawn out in court, it can take a long time and be very costly to resolve if there isn’t sufficient evidence to prove an affair. Be mindful that it’s not enough to merely suspect your spouse of an affair, nor will it be accepted just because they had the ‘opportunity’ to cheat.
Being awarded a divorce based on adultery will not entitle you to a greater amount of spousal or child support and conversely, if you’re the one whose infidelity ended the marriage, you won’t need to pay any more either. It usually won’t have any bearing on the custody of any children involved, unless the past behaviour of the cheating spouse is relevant to their ability to parent the children.
Couples in a contested adultery divorce spend a lot of time and energy embroiled in proving or disproving claims and this can be detrimental to the well-being of themselves and their children. Keep in mind that the party with whom the adultery occurred will become a party to the divorce case and have an opportunity to defend themselves from the accusation as well.
Contact our Experienced Divorce Lawyers
If you need some help to determine what reason should be cited on your divorce application or you’re unsure as to whether you have enough circumstantial evidence to prove adultery, one of our professional divorce lawyers would be happy to help you in a free consultation.
This blog is made available by the law firm publisher, Epstein & Associates, for educational purposes. It provides general information and a general understanding of the law but does not provide specific legal advice. Any specific questions about your legal concerns please contact us now and speak to an expert today.