What is “Adultery”, Anyway?

Last week, in the context of the ongoing Bill Cosby scandal, I wrote about the available grounds for divorce in Canada, which include separation for a year, physical or mental cruelty – and of course adultery.

You might be surprised to know that over the years, various Canadian cases have examined the concept of “adultery” for the purpose of satisfying the threshold requirement in the Divorce Act.   In this context, if you are relying on adultery as grounds for your divorce, here’s what you need to know:

• Your spouse’s affair may be short or long – the duration is irrelevant;
• Nor does it matter how frequent his or her adulterous conduct may have been, and even a single incident will qualify. Whether or not your spouse is remorseful is also not a factor;
• The gender of your spouse’s affair partner does not matter (e. an affair may be conducted with a same-sex partner);
• Legally speaking, a single incident of adultery is no different from multiple occasions – both are equally valid grounds under Canadian law;
• You need more than a mere suspicion of your spouse’s adultery, but on the other hand it’s not necessary to catch your spouse “in the act” or provide photographic or other physical proof; and
• Flirting over the Internet, ”sexting”, “phone sex”, or a purely emotional affair – without more – is not sufficient because the law currently requires an actual, physical sexual relationship.

Incidentally, if you are the spouse wanting the divorce, then you must put forward evidence to convince a court that adultery took place sometime before your divorce petition is filed.   (And your spouse may certainly admit to the affair, in which case your job becomes easier). Either way, your spouse’s affair partner does not need to be named or specifically identified in your divorce petition.

Do you have questions about what constitutes adultery for the purposes of getting a divorce? Contact us for a consultation.