Can a spouse profit from adultery (...or at least use it to get a divorce)?

According to the recent ruling of Justice McGee of the Ontario Superior Court of Justice, a partner cannot engage in adulterous actions as grounds for filing for a divorce.

In the case of Niyazov v. Tkatch [2014] O.J. No. 4099, the court was faced with a joint Divorce Application where the ground claimed was adultery. The husband, as co-Applicant, filed an affidavit swearing:

"I hereby admit that I have committed an act of adultery during my marriage to Olga Tkatch." 

The court began its analysis by quoting section 8(1) of the Divorce Act that provides:

8(1) A court of competent jurisdiction may, on application by either or both spouses, grant a divorce to the spouse or spouses on the ground that there has been a breakdown of their marriage. 

8(2)Breakdown of a marriage is established only if 

(a) the spouses have lived separate and apart for at least one year immediately preceding the determination of the divorce proceeding and were living separate and apart at the commencement of the proceeding;

or 

(b) the spouse against whom the divorce proceeding is brought has, since celebration of the marriage, 

(i) committed adultery, or 

(ii) treated the other spouse with physical or mental cruelty of such a kind as to render intolerable the continued cohabitation of the spouses."

A spouse cannot use their own adulterous actions as reason for filing for a divorce

The court found that the language of section 8(2)(b) prevented an adultering party from acting as an Applicant for divorce. 

In denying this couple a divorce, the court stated "it has long been held that a party must not be allowed to use his or her own misconduct as the basis for a petition for a divorce."

As for the underlying policy objectives, the court stated:

"...the institution of marriage is of sufficient importance to the public interest that it is regarded by the law as requiring special protection. It is not merely the private concern of the parties, and although such sentiment may be at first glance strike the reader as antiquated, it remains alive and well within the present-day preamble of the Family Law Act…

The jurisdiction of the Court in divorce matters differs from that in other litigation adventures. The Court is vested with a peculiar duty of protecting the sanctity of marriage and the family in the exercise of its responsibilities, in so far as it can."

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