How Does Adultery Impact My Divorce Case?

Adultery impacts divorce cases far less than most people think. While it’s natural to assume that you should get “more” out of the divorce because the other spouse “wronged” you, the truth is that the courts are not particularly concerned with who caused the breakdown of the marriage. Legally, both parties are assumed to be somewhat responsible.


So when it comes to the division of assets and debts, courts treat adultery as basically immaterial. They return to the raw numbers of an equitable distribution based on the length of the marriage, the roles each person played in the marriage, and the assets the couple has gathered during their marriage.


That doesn’t mean that adultery has zero effect on your divorce. Here’s what you need to know.


Adultery as a Grounds for Divorce


In most Canadian provinces, you have to be separated for one year before you can file for divorce. Adultery is one of the exceptions that allows you to get an immediate divorce, without waiting.


Unfortunately, using adultery to get around the year-long wait period can be a little bit tricky. First you have to prove that the adultery happened at all, which can be tricky if your partner does not also want an immediate divorce.


Second, you have to prove you didn’t assist or condone the adultery in any way. For example, if you knew about the affair for six months but kept your mouth shut, the courts may rule that you cannot use it as a grounds for getting a divorce.


Many couples find it easier to just draw up a separation agreement and live apart for one year.


Adultery’s Impact on Child Custody


An affair, in and of itself, will not impact custody, access, or child support agreements in any way.


Yet if the adulterous partner is sleeping in their new lover’s home, lives with them, or allows them to be around the children then this can change. The courts will then have to consider the paramour’s character and likely impact on the child’s well-being.


Adultery’s Impact on Spousal Support


Adultery also won’t have much of an impact on spousal support. Spousal support is about creating some manner of short-term economic equity between spouses so the disadvantaged spouse has a chance to get on their own feet. Whether or not that spouse created the problem by having an affair is immaterial.


Again, this changes if the affair wasn’t a one off, or if the adulterous spouse moves in with their lover. At that point the courts may deny spousal support altogether on the grounds that the adulterous spouse is receiving support from a new partner.


Need Help?


It’s natural to get angry when your spouse has hurt you so deeply. Yet in a divorce case, it’s best if cooler heads can prevail. Consult with one of our experienced family law lawyers today. While we can’t help you with the pain of living through your spouse’s affair, we can help you craft a strong settlement that helps you move on.

About Donald I.M. Outerbridge

Donald became the Executive Director of Merchant Law Group LLP starting in 1993, nearly 30 years ago. His experience managing law firms at various levels and in multiple provinces across Canada goes back even further to 1981.