One of the most common questions I’m asked is what effect, if any, adultery has on the divorce process.

The short answer? Not much.

The majority of divorces in Canada are granted on a no-fault basis. That is to say that the breakdown of the marriage (the sole grounds for divorce) has been established by the parties having been separated for a minimum of one year.

The two fault-based grounds to establish the breakdown of a marriage are Adultery and Cruelty. If you are relying on Adultery or Cruelty in your Application, a divorce can be granted as soon as the matter can be heard in court.

Adultery has been defined as voluntary sexual intercourse of a married person with one of the opposite sex, however changing social norms have made the modern definition much more broad.

Adultery does not have to be proven by direct observation. The court may infer that adultery transpired based on the familiarity of the respondents and the opportunity they had to commit the offence. For example, evidence that the respondents spent a night in a hotel room together may be accepted as proof of adultery, especially in the absence of any denial from the respondents.

Due to a statutory protection that protects parties in divorce proceedings from being compelled to provide admissions needed for proof of adultery, applicants generally have to have independent evidence of adultery available at trial. This is usually in the form of a witness who can corroborate the applicant’s claim. Some judges will grant a divorce after hearing an admission from the adulterous spouse. Many will not, as it creates an opportunity for spouses to unjustly speed up the divorce process without waiting for the one year separation period to elapse.

There is a reason that most divorces are granted on the grounds of a one year separation. The process of presenting evidence of adultery to a judge is an emotional and expensive venture that many divorcing spouses would just as well avoid.

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