Why Is Cheating Rarely Used for Divorce? The Surprisingly Difficult Task of Proving Adultery

There are three grounds for divorce under The Divorce Act. Section 8(2) says that the three grounds of divorce, adultery, treated with physical or mental cruelty, or if the couple has been separated for a year or more. However, in practice, family law practitioners use the separation grounds as that evidential burden is much lower than adultery or cruelty.

Commencing a divorce on any of the three grounds is a difficult decision. Trust a Stokes Law LLP team member for the best advice to manage your divorce.

Practitioners take the “less messy” route so that the divorce can actually proceed. If there isn’t sufficient evidence for cruelty or adultery, the divorce may not proceed to the client’s wishes or in a timely manner. But that leaves a clear disconnect between what goes on in society and the legal process for a Divorce. There is a substantial amount of literature that outlines how adultery and cruelty are undeniably prevalent in relationships today. So, why the use of separation even though adultery is prevalent?

The Difference in Alberta

In Ontario, Smith v Smith established that adultery is determined on a balance of probabilities. Smith also says that circumstantial evidence could be used to help determine that balance, but that evidence has to convince the court the adultery was likely committed.

In British Columbia Adolph v. Adolph says that the evidential burden of adultery is whether, based on the balance of probabilities, adultery occurred. This is a contrast to the Alberta legal.

Although the two cases above both support the use of circumstantial evidence, evidence that gives rise to suspicion is not enough. The Nova Scotia case of Doucette v. Doucette says that suspicious activities alone does not amount to the evidence to prove adultery.

In Alberta, the cases for adultery are rather scarce and typically relied on Canadian authorities such as Smith. With that being said, the Government of Alberta says on their website that “adultery must be proven in court, either with:

• Evidence, or
• An affidavit signed by the person who committed adultery”

The key phrase here “must be proven in court…”, which means that the evidential burden for adultery is at the level of proof, not a balance of probabilities.

What Changed? – Amendments to the Divorce Act and No-fault Divorce

The biggest change to the Divorce Act for the principles of adultery was when the Divorce Act of 1985 introduced the concept of “no-fault divorce”. Previously, the Divorce Act 1968 set out that a divorce needed a break of the marriage where there was, sexual assault, adultery, desertion, bigamy, a separation of three years, or a homosexual act. The 1968 act had a mixed approach to divorce, where section 3 was the fault-based grounds, the wrongful acts of the partner onto the other, and section 4 was the separation ground.

In 1985, the Divorce Act was changed many of the rules, and one of the more notable changes was a shift to focus on no-fault divorces. The Divorce Act 1985 summarized the fault-based acts as cruelty and adultery and significantly shortened the separation timeline from 3-years to 1.

What the 1985 changes did in practice was allow those that experienced cruelty or adultery, or even felt as though they were wronged, to seek a divorce without having to risk proving the acts. It comes to no surprise that people who commit adultery are probably not going to sign an affidavit saying that they did so.

For example, your spouse goes out one night for an event with his friends. You have suspicion that your spouse will be unfaithful, but you let them do as they please. A few months go by and there is a substantial change in the dynamic to the relationship. They are more distant, they go out more often, and when you bring up your concerns, they dismiss the concerns and call you delusional.

Prior to 1985, you would have to either have enough evidence to convince a court that your spouse was unfaithful, or have to be separated for 3-years before you can get a divorce. And as we noted previously, suspicion is not enough to convince the court that adultery took place.

Now, your suspicion and discomfort can provide you with a divorce in 1/3^(rd) the time with the current Divorce Act. But this is also the reason why adultery is, firstly, uncommon, and secondly, rarely used.

Your partner being unfaithful does not affect corollary relief, property division, or parenting time. In fact, improperly made allegations of adultery could even prompt the Courts to award costs to alleged party. The risk versus the reward is simply not worth the claim of adultery.

Conclusion

There is a disconnect between how divorce is in practiced legally commenced, and the general understanding of adultery. Legally, adultery has a significantly higher bar to prove rather than the no-fault divorce of separation, and even if you prove adultery, the advantages do not outweigh the cost of proving adultery.