How Committing Adultery Affects Divorce
Divorces are granted in Canada on the grounds that there has been a breakdown of the marriage. There are precisely three grounds for a breakdown in marriage in Canada:
- There are no-fault divorces where the spouses have been living apart for at least one year before the divorce is granted, which signifies an irretrievable breakdown in the marriage.
- If there was mental or physical cruelty in the marriage
- If one spouse in the marriage committed adultery (the spouse against whom the divorce is being sought)
How to prove adultery in a divorce
Adultery is simply when one spouse steps outside of the marriage and has another lover. It’s not enough to just have suspicions that your spouse cheated; the court will need adequate evidence that adultery did, in fact, take place. This isn’t to say that there needs to be physical evidence of the affair, but all the facts and circumstances will need to be provided for the court to reasonably conclude that the adultery occurred.
The accused spouse may openly admit that adultery took place. In other cases, the third party who was involved in the affair may also present evidence admitting to it. The party that is accused of infidelity is given an opportunity to defend themselves of the accusation. If the spouse who allegedly committed adultery doesn’t respond or contest the claim, the court may conclude that adultery occurred because he/she did not contest it.
The negative side of divorces based on adultery
Divorces based on adultery are, most often, the hardest to prove. They may also have a negative impact on the proceedings and resolution process. This is often because most divorces that involve adultery tend to focus on that issue instead of the real issues that need to be resolved, such as children in the marriage, custody and access as well as division of property. The couple may be caught up in a blaming match instead of handling the important and central issues at hand. It may also take a long time, and often cases, a lot of money to resolve divorces based on adultery because of the process of proving an affair. This is often detrimental to the well-being of the parents and children involved.
How long will the divorce process take?
You don’t have to be separated for a year before filing a divorce based on adultery. You can apply for a divorce on the basis of adultery immediately after your separation. You will have to wait 31 days before the divorce is granted.
One common misconception is that when one is awarded a divorce based on adultery, they are entitled to a greater amount of child/spousal support. Divorces based on adultery don’t have any weight on the custody of children involved unless the person who committed infidelity cannot fulfill their parenting obligations.
If you need help determining how to file your divorce application or ensure you have adequate evidence for a divorce on the grounds of adultery, one of our professional divorce lawyers can help.