Can a divorce based on adultery be granted on a joint application?

The short answer is no. 

Section 8(1) of the Divorce Act provides that a court 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. 

Section 8(2) of the Divorce Act provides that a 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.

In the case of Niyazov v. Tkatch 2014 ONSC 5143, the husband and wife jointly sought an order for divorce on the grounds of adultery. The parties had no children together.  The husband filed an affidavit in which he stated that “I hereby admit that I have committed an act of adultery during my marriage …”. 

The Honourable Madam Justice McGee considered whether she could grant a divorce based on adultery on a joint application. Her Honour found that the relevant sections of both the Divorce Act and the Family Law Act operate to prevent a co-applicant from seeking an order for divorce based on adultery. 

Specifically, Her Honour referenced section 8(2)(b) of the Divorce Act which states that a divorce based on adultery can only be brought by the innocent spouse against the party that committed the adultery, and not by the guilty spouse.  In a joint-application, the guilty party would be one of the co-applicants bringing the application, which is not permitted under section 8(2)(b). Her Honour went on to state that:

Courts will not grant divorce where an applicant uses their own misconduct as the basis for separation

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.  Within Keats v. Keats and Allen, is quoted the sanguine words of Scrutton L.J. in Hyman v. Hyman; Hughes v. Hughes:

“The stability of the marriage tie, and the terms on which it should be dissolved, involve far wider considerations than the will or consent of the parties to the marriage.  The Court does not, as other Courts do, act on mere consents or defaults of pleading or mere admissions by the parties.”

As a result, Her Honour dismissed the parties’ joint filing for divorce based on adultery. 

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