The Role of Adultery in Divorce

By Valerie L. Brown of Brown Law Firm Professional Corporation

One of the surest ways to end a marriage is for one of the spouses to engage in an extramarital affair. It is a breach of trust that spouses may never be able to forgive, and certainly forget. Some spouses are able to work through the emotional aftermath of an affair and continue with their relationship. For others, it is the death knell of their marriage.

While it is clear that an affair will affect spouses emotionally, it is important to understand that an affair will not necessarily play a role in the spouse’s divorce.

Section 8(2) of the Divorce Act allows spouses to obtain a divorce upon the breakdown of their marriage. One of the means of proving a breakdown in the marriage is if a spouse committed adultery. A spouse cannot rely on their own adulterous conduct to obtain a divorce; rather, it is the innocent spouse who is entitled to claim a divorce on these grounds.

Although the Divorce Act permits this claim, quite often the spouse who is alleged to have engaged in the affair will contest the divorce on these grounds, and in any event by the time the issues are determined, the spouses will have been separated for one year, which is the more common reason spouses seek a divorce. So, although adultery may have a role in providing grounds to obtain a divorce, on a practical level it may not be worth it given the time and legal expense involved.

In matters of custody and access, although a spouse may not be a good husband or wife, this does not mean they are not a good parent and an affair does not preclude them from having custody of the children or being very active in their lives. In all cases, such issues are determined based on the children’s best interests.

There is often a feeling that the spouse engaging in the affair should have to pay for their conduct. This is a natural emotional reaction, but one that has no place in family law. An affair will not entitle a spouse to more child or spousal support, which issues are determined based on the parties incomes, the needs of the children, the needs of the spouses, and the roles adopted during the marriage.

An affair will have limited impact on property issues as well. Section 5(6)(d) of the Family Law Act permits an unequal division of property where there is an intentional or reckless depletion of property. It will be rare when the consequences of an affair will support an unequal division of property. This will be the case even where a party has not only a mistress (or paramour), but has hired escorts, has adult website memberships, has purchased jewelry or other similar expenses. While a spouse, and even the court, may consider such conduct to be morally repugnant, it is the financial consequence of the conduct that is important, and not the conduct itself.

It is not sufficient to prove that the spouse engaging in the affair spent money on it; the innocent spouse will not be reimbursed an amount equivalent to what was spent on the affair. Instead, the spouse seeking the unequal division must prove that the affair actually had a significant effect on the parties’ debts, liabilities, or property. It must be shown that the affair resulted in a depletion of net property, that the depletion was done intentionally or recklessly, and that an equalization of net family properties would be unconscionable in the circumstances.

It is understandable that following an affair the innocent spouse may be emotionally driven. However, before making claims based on an affair, legal advice should be sought to understand whether the affair may actually influence the legal outcome. Making a claim without this understanding can be an expensive endeavor for everyone, and can only serve to escalate an already very emotional situation.

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