When there is infidelity in marriage, a legal question arises as to whether it will affect:
- the process; or
- other aspects
of divorce and separation.
To understand this, first, we need to understand the legal requirements of divorce.
What Do You Need to Obtain an Order for Divorce?
A divorce order formally terminates a couple’s legal status as married. It allows you to remarry.
S. 8(1) of the Divorce Act provides that, “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.”
S. 8(2) of the Divorce Act provides that the breakdown of a marriage can be established only if:
- You’ve lived separate and apart for at least one year, OR
- Your spouse committed adultery, OR
- Your spouse treated you with cruelty making it intolerable to continue living together.
So, adultery is a valid ground for divorce, but proving it can be difficult, expensive, and emotionally draining. That’s why most people in Ontario use the one-year separation route instead. We will address this in greater detail later in this blog.
An Order for divorce does NOT resolve support, property or child related concerns that arise on the breakdown of a marriage. These other issues are called corollary issues. So how might infidelity affect corollary issues?
Will Cheating Affect Property Division?
Short answer, no, with rare exceptions.
In Ontario, the treatment of property on the breakdown of a marriage is governed by Ontario’s Family Law Act. The goal of the Act is to equalize the property accumulated by the parties during the marriage, subject to certain adjustments identified in the Act. Under the Act, one party must pay to the other a sum of money to equalize their respective net family properties. Simply described, a party’s net family property is the growth in his or her net worth during the marriage, with some adjustments identified under the Act.
Even if your spouse has an affair, they are generally still entitled to the division of net family property, regardless of who cheated.
However, there is a qualification to this general principle. If your spouse uses funds to support an affair (e.g. hotels, gifts, vacations), this could be used to support a claim for unequal division of net family property, in rare circumstances. The cheating spouse would have to be shown to have recklessly depleted his or her net family property or recklessly incurred debt in bad faith, by directing funds to affair-related expenses. The threshold for successfully making such an argument is very high. Thus, affair-related expenditures would have to have a significant impact upon the standard property outcome under the Act for a Court to consider such a claim. A skilled family law lawyer can help you to evaluate whether your circumstances might fall within this exception.
Will Cheating Affect Spousal Support?
Generally, no. Spousal support in Ontario is based on:
- Financial need and means
- Length of the relationship
- Roles during the marriage (e.g. stay-at-home parent, primary breadwinner, etc.)
- Ability to become self-supporting,
among other factors.
The court doesn’t usually consider bad behavior like cheating, unless it has a serious economic or emotional impact on the cheated-upon spouse or the children.
Examples of circumstances where cheating might affect support might include:
- The affair results in emotional distress which significantly impacts the affected party’s ability to provide for themself and/or the family or results in job loss.
- The cheating spouse cohabits with their new partner, which may reduce their support needs, if they were the spouse entitled to support.
This is where working with a knowledgeable divorce lawyer really matters — they can help you determine what’s relevant and what’s not.
Will Infidelity Affect Decision-Making for the Children or Parenting Time?
Rarely. Family courts are focused on the best interests of the child and not on which parent cheated.
However, parenting could be impacted if:
- The cheating spouse exposed the children to unsafe or unstable people, in the form of their new partner.
- The affair disrupted the children’s routines or emotional wellbeing
Cheating alone is not enough to deny custody or parenting time. A skilled family law lawyer can help present your concerns in such a way that the court would consider them.
So, Should You File for Divorce on the Grounds of Adultery in Ontario?
You can but you don’t have to. Filing a divorce based on adultery will let you skip the one-year period of separation that is the generally employed ground for divorce, but you will be required to prove the adultery in the court with sufficient evidence. This may extend and complicate your case.
Most clients choose the one-year separation route, even after infidelity, to avoid additional stress and cost.
A good divorce lawyer will help you understand your entitlements and decide whether to raise the issue of adultery in the court. The divorce lawyer will also help you navigate the issues of support, property division, and parenting, and assist you in presenting your case in court in a manner that will maximize your chances of success.
Conclusion
Adultery can have devastating effects on the relationship, but the legal system is not designed to punish the unfaithful. Instead, it focuses on just and equitable financial resolution, the advancement of the needs of the children and the termination of the marriage, with a view to moving forward to new horizons.
It is always better to not make assumptions about when or how to proceed with a divorce or to wait for the “right time”. Early discussion with an experienced family law lawyer will help you carve out a plan for separation and divorce that is best suited for your situation.
Adi Choudhary
Associate Lawyer
Adi Choudhary, a Family Law Lawyer at Bair Family Law, brings empathy, insight, and steady guidance to his work. With a calm and client-focused approach, Adi supports individuals and families navigating separation, parenting disputes, and financial conflicts with clarity and compassion. Read More
The information contained in this blog is provided solely for general interest; may not reflect current legal developments and should not be relied upon or construed as legal advice. Online readers should not act upon any information in this blog without first seeking professional advice. The sending or receipt of this information does not create a solicitor-client relationship between the reader and the content creator. For specific, comprehensive and up-to-date information, or for help with a particular factual situation, you should seek the advice of a family law lawyer.