Adultery and unfaithfulness continue to seem to be one of the leading causes for separations in Alberta. While it is often the cause for a separation or divorce, and emotions will often be very high, many are surprised to learn it typically will not have a significant impact on the divorce.
The Divorce Act does list the specific grounds that can be relied upon to seek a divorce, which includes committing adultery. However, in practice divorce is rarely granted based on adultery. The more common ground for a divorce to be granted is if the spouses have lived separate and apart for one year, even if adultery has also occurred.
Alberta, and Canada more broadly, have what is sometimes referred to as “No Fault Divorce.” Some foreign jurisdictions do penalize spouses financially for adultery or extramarital affairs but this is not the case in Canada. Spouses are not punished for cheating or extramarital affairs in regards to parenting, support or property issues, although in some circumstances the adultery may be relevant to the matters at hand.
Adultery and Property, Support and Parenting
Adultery does not impact the division of property. Each spouse’s entitlement to the family property is independent to any cheating that may have occurred. There may however be questions raised as to the spending of family property on an extramarital affair or new partner. In the event the spouse that commits adultery was spending family assets on items (or people) outside of the family regime and not for the benefit of the family, they may ultimately be liable to their spouse for dissipation of those assets.
Adultery also does not have an impact on child or spousal support, or at least in regards to being the reason for an entitlement to support. However, the living situations of the parties, potential re-partnering, or a number of other factors related to the extramarital relationship can have an impact on entitlement and quantum of support. While the fact that adultery was committed is not relevant to parenting of children, the best interests of the children is always considered in determining parenting for children. In these situations, it may sometimes be necessary to consider the circumstances of the cheating, the involvement of the new partner, where the spouses are living and with whom, and other factors related to the adultery when determining the best interests of the children.
Written by Michael Ross