Married and cheating: Is adultery a legally valid basis for divorce?

The data breach and mass disclosure of subscribers at Ashley Madison, an extramarital affair website, caused a whirlwind of media attention and speculation. 

Dozens of divorce lawyers and marriage counsellors were interviewed by the media on the consequences of publication of the identity of subscribers to this extramarital affair website. Of course, management at Ashley Madison went into damage control and issued a number of press releases to calm the waters.  

Firstly, the company urged, the names that were revealed were not necessarily actual members of this website as some members used fictitious names or appropriated the names of other persons when creating their account. 

Secondly, membership did not necessarily result in an act of adultery. Thirdly, for those members that made a connection, very few of them pursued a sexual encounter. Fourthly, most members joined the network out of curiosity and intrigue, and not necessarily to commit adultery. 

Although these statements were all fairly accurate, with 30 million subscribers, even a small percentage of marriages ensnared in this debacle was catastrophic. That is what made this topic so newsworthy.

So what is the state of the law in Canada on adultery and the rights of the innocent spouse?

What Canadian law says about adultery

Until 1968, there was no uniform federal divorce law in Canada. There were different divorce laws in the different provinces. For example, prior to 1930, there was no divorce law in Ontario and spouses wanting a divorce had to apply to parliament for a private bill of divorce. The year 1930 brought the Ontario Divorce Act permitting divorces in the courts of Ontario.  

 

In 1968, The Government of Canada passed the first federal Divorce Act. But it was the new grounds for divorce that fundamentally changed the law in Canada. 

 

The 1968 legislation widened the grounds for divorce to include adultery, cruelty or a 3-year separation. Parliament lowered the separation period to one year in 1986. That is, as of 1968, Canadian spouses could divorce for any reason. This was a fundamental change in the recognition and acceptance of marital breakup.  

As a nation, Canadians began accepting that spouses did not need to commit a transgression in order to end their marriage. No longer were cruelty or adultery the only bases for granting a divorce. Canadian couples could end their marriage by simply claiming that they were no longer compatible. 

Divorce could be granted one year after the spouses declared to be separated (which could have begun while still cohabiting, and even sharing a bed, provided that they both admitted to being separated on that date). 

Done were the days of needing to prove culpable conduct in order to obtain a divorce. Even for those spouses who were victims of cruelty or adultery, the ease of obtaining the divorce based on separation rendered the fault-based grounds for divorce unnecessary and irrelevant. 

Coupled with the above, federal law were provincial statutes that declared conduct (better known as misconduct) irrelevant to the determination of legal rights. What is known as corollary relief is the set of laws that determine the rights of custody to, and access of, children, child support, spousal support, rights to a matrimonial home and property division. 

Adultery was declared irrelevant and inapplicable to the determination of one's corollary relief. That was (and remains) the state of the law, as applied in courts throughout Canada.

But how does the court of law differ from the court of public opinion and how does adultery actually influence divorce settlements?

Marriage and divorce as emotional constructs

Marriage, separation and divorce are emotionally charged institutions. The decisions leading to the wish to marry, or the decision to separate, are often not intellectual or logical, but rather personal and emotional. 

As for divorce, it is common for one or both spouses to experience a myriad of emotions through the often protracted and successive stages of separation. 

Dr. Bruce Fisher identifies the many stages that spouses experience through a breakdown of marriage including denial, fear, loneliness, guilt, rejection, grief, transition and freedom in his book “Rebuilding When Your Relationship Ends”, Impact Publishers, 2000. Because this process is guided by the heart and not the mind, so too are divorce settlements. 

It is all too common for the guilty spouse to forgo rights, or assume excessive obligations, so as to vindicate their sense of guilt.  The spouses who are victims of adultery often seek out revenge through unreasonable demands. 

Cheating spouses are often shamed into consenting to divorce

The possibility of the children discovering that their parent cheated, in many cases, is enough to influence the guilty parent to stifle the other spouse with a quick and generous divorce settlement. Of course, nothing can be a greater influence than the fear of public shame, particularly among family members, employers, professional colleagues or their social or religious community.  

Even though in 2021 divorce is a societal norm, adultery remains unacceptable for married spouses and shunned by society. In an open court system, where a spouse can list adultery as grounds for divorce, and even name the paramour in the court documents, humiliation and shame are a large driver of settlements. 

Even in cases where adultery is not used to obtain a divorce, the spouse applying for a divorce can announce the discovery of adultery including the details of such acts and the emotional distress that it caused the innocent spouse and children. 

In fact, in the Supreme Court of Canada decision in Leskun v. Leskun [2006] 1 S.C.R. 920, the wife claimed that she was so traumatized by her discovery of infidelity that she was unable to function and return to her normal life. In that case, the court recognized that, even though adultery is not relevant for the purposes of determining corollary relief, the consequences of adultery (eg. inability to achieve economic self-sufficiency) were indeed relevant. 

So in the court of public opinion, and in the closed-door negotiation of divorcing spouses, the threat of public shame of an extramarital affair in court documents, or just the threat of doing so, can have significant influence and pressure on the guilty spouse. 

Although the legal principle providing that adultery is not necessary for the granting of a divorce, nor relevant for the determination of corollary relief, once in the arena where emotionally charged spouses are negotiating a settlement, infidelity is a major ingredient in the outcome of a divorce. 

For all the drama and trauma that Ashley Madison caused, its debris in the private arena of marriage and divorce will remain unknown. 

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