Next season, one of our episodes will be on the topic of “Life After an Affair” and will address what, if any, legal ramifications exist when adultery occurs in a marriage.
Societal attitudes towards adultery generally lead people to believe that engaging in an affair should carry negative consequences for the offending partner. This belief is often extended into the legal realm, where there is a pervasive assumption that the presence of adultery in divorce cases can have negative legal ramifications for the unfaithful spouse. In reality, extra-marital affairs have little impact on the legal issues that arise from a marriage breakdown. Except in very rare circumstances, courts generally do not take the adultery of one spouse into account in their consideration of things like the division of assets, spousal support, child support, and child custody. Since divorce is “no-fault” in Canada, the fact that one partner has had an affair does not usually provide any advantage to the other partner in legal proceedings dealing with these issues.
What legal impact can an affair then have on a marriage? Perhaps most significantly, adultery is a ground for divorce in Canada pursuant to s.8 of the Divorce Act. It is important to note that the word adultery in this legal context carries a fairly specific definition that does not necessarily align with the varied ways we might commonly conceive of an affair.
Adultery, as legally defined grounds for divorce, must be physical and sexual contact between one of the spouses and a third party. Generally speaking, phone sex, cybersex, and acts such as flirting and kissing are not considered to constitute adultery in this sense. For the purposes of the Divorce Act, the adulterous conduct need not be an ongoing and continuing affair. A single adulterous act suffices. If the adultery occurred in the past, the court may examine whether the non-offending partner already knew about it and had forgiven their spouse. If so, there is a chance the conduct may not suffice as acceptable grounds for divorce. The definition of adultery was expanded in 2005 to include extra-marital affairs between same sexes.
The spouse who did not commit adultery must be the partner who initiates any action for divorce on the grounds of the adulterous conduct. The court must also be satisfied that the non-adulterous spouse did not condone their partner’s adultery in order to obtain a divorce. These requirements seek to keep people from committing adultery simply in order to obtain divorces.
In divorce proceedings on the adultery grounds, the initiating, non-adulterous spouse carries the burden of proving on a balance of probabilities that an affair occurred. The standard of proof on a balance of probabilities means that the initiating spouse must convince the court that it is more likely than not, or more than 50% likely, that the adultery occurred. The easiest way for this to succeed is if the offending spouse credibly testifies to the affair. If not, other evidence such as other witnesses, bills and receipts, emails, and photographs must be presented to persuade the court that the conduct occurred.
It is important to note that even if the allegedly adulterous spouse is willing to testify as to the affair, obtaining a divorce on adultery grounds can yet be a taxing, drawn-out and costly process. If the adulterous spouse is not willing to testify, it can be emotionally draining and difficult to prove to the court that an affair happened. Divorce proceedings are more frequently initiated on separation grounds, where spouses have lived separately and apart for at least one year. This separation can occur concurrently with adultery but is generally an easier alternative to prove in court.