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Here are the top five lesser-known points to know: 1. An affidavit admitting to adultery with an unnamed party is sufficient for Divorce Act purposes. In the right circumstances, adultery can be condoned.
Adultery may occur if there is “[i]ntimate sexual activity outside of marriage may represent a violation of the marital bond and be devastating to the spouse and the marital bond regardless of the specific nature of the sexual act performed.” 2. For example, if out of love and a desire to make the marriage work one spouse takes back an adulterous cheating spouse, then he or she may not be able to ask for a divorce based on the earlier adultery.
Most recently, it has been alleged that Arnold Schwartzenegger fathered a child with the housekeeper employed in the home he shared with his wife of 25 years; prior to that, Tiger Woods has admitted to having sexual trysts with at least 14 women outside of his relatively short marriage.
Leaving aside the intriguing question of how adultery affects couples psychologically and emotionally (and why such powerful, successful people would jeopardize their marital relationships in this manner), the legal effect of adultery is quite clear.
Instead – as with all civil actions – a court must be satisfied on a “preponderance” of credible evidence that adultery has taken place. where the facts and circumstances lead to the reasonable conclusion that adultery has indeed taken place.
Whether or not the spouse actually wants to do so, in light of prospects of forgiveness and reconciliation, will be a personal decision. In order to prove adultery, there is no prerequisite that the other spouse gets “caught in the act,” or that there be photos or other physical evidence of the affair.
The only ground for divorce in Canada is the breakdown of a marriage.
This can be proven in three ways: (1) The spouses have lived separate and apart for one year (no fault); (2) The spouse against whom the divorce proceeding is brought has committed adultery (at fault); (3) The spouse against whom the divorce proceeding is brought has treated the other spouse with physical or mental cruelty (at fault) It is rare for family law practitioners to file for a divorce using the circumstance of adultery for the following reasons: 1) At fault divorces such as adultery and cruelty can be costly; 2) No further evidence is necessary when filing under the ground of living separate and apart, making this no fault basis more appealing; 3) It can take more than a year for the courts to decide the issue of adultery and by that time you may have already established the ground of living separate and apart for one year. Malandra, where the court found that – for the purposes of deciding whether their Net Family Property (NFP) should be unequally divided – the husband should not be held solely accountable for certain bad business investments.
By concealing the extent and timing of his “financial perdition” (as the court called it), the husband deprived the wife of an opportunity to prevent his destructive behaviour, or to prepare herself for retirement. In this case, the court also ordered that the husband had engaged in reckless and intentional depletion of the NFP and that there should be an unequal division.
The court found that the husband had “taken advantage of the [wife’s] selfless act of placing herself in a position of vulnerability in the best interests of her children.” An unequal division of NFP was ordered. Spending Money on an Affair Partner Finally, in a case called Hutchings v. One of the grounds on which divorce can be granted to spouses in Canada is that of adultery.
He had forged the wife’s signature, and had borrowed from credit cards for which she became liable without her knowledge.