Brahm Siegel: Adultery is not all that relevant in court

Tiger Woods, Jesse James, David Letterman. John Edwards. Jon Gosselin, allegedly. Cheating and adultery —  it’s back in style.

What’s also fashionable is dumping on the adulterous spouse:

“How could he?”

“What was he thinking?”

“He’s made her look like such a fool, I hope she takes him for everything.”

These are all common reactions I’ve heard.

But the adultery factor has far less of an effect on a family law than you’d think.

Under Canada’s Divorce Act, a party’s “conduct” is irrelevant to a child custody or child access case unless it affects that parent’s ability to parent. Usually that means adultery plays almost no role in deciding who gains sole or joint custody. It also means that an aggrieved spouse cannot rely on the adulterous behaviour to deny the other parent visitation.

What about divorce? Again, the Divorce Act has the answer. The law provides that the parties must be separated for one year before a divorce can be granted. Absolutely no reason needs to be given by a spouse wishing to divorce other than they have been separated for one year. This “no-fault” system effectively forces spouses to carefully consider their options for twelve-months before tearing their union asunder.

However, if adultery has occurred, a spouse can be awarded a divorce at any time prior to the 12-month period. I guess the thinking is that adultery is so offensive it strikes at the heart of marriage, so there is no point in waiting a year. I’m not so sure that’s the case in 2009, but that’s still the law.

There are five reasons why, in 99.9 per cent of my cases, my clients choose to wait out the year before starting the divorce even when adultery has occurred:

1. A divorce based on adultery is a lot of work. The spouse seeking to divorce on grounds of adultery has to prove it, which means dragging the person with whom the spouse was adulterous into the court case. That means extra work for the lawyer, which means extra cost.

2. It’s risky. What if the person denies the adultery? Usually there is no proof, no “smoking gun.” Unlike Jon & Kate, Us Weekly photographers aren’t following around the spouses of my clients with telephoto lenses.

3. There are usually far more important issues to worry about. Most of my clients are mature enough to realize I need to focus on more pressing issues. They are usually quite content for the divorce to come after one year and focus, for the time being, on sorting out the parenting, support and property issues. Where these issues cannot be resolved without litigation, they know that a divorce case can be commenced in court at any time — remember, it’s just the divorce that must wait one year. A judge can make a ruling on any and all other issues the day after a separation.

4. Credibility. A party that insists on pushing the “adultery” issue runs the risk they will be perceived by the other side (and more importantly the court) as being motivated purely by anger or revenge — not the best qualities you want your client to show. Above all, you want your client to be focused on the children and their best interests, and that means steering them away from the hurt feelings or damaged ego he or she may be feeling as a result of the adultery.

5. It matters not. As mentioned above, adultery plays little to no relevance in parenting issues. It matters even less in support or property issues. A cheating spouse does not forfeit her rights to claim child support under any circumstances. With respect to spousal support, unless the spouse is living with the new partner or sharing expenses with him or her, the adultery will not play much of a role at all.

The law recognizes that cheating is usually not the cause of a breakup or a sign that that person is a good or bad parent or that they deserve to forfeit their rights. It is, sadly, nothing more than a sign that the marriage was in bad shape, at least from one party’s point of view. I often say to clients that adultery is simply a symptom of a marriage at risk, not the cause. Not prolific but probably pretty accurate.

Brahm Siegel is a partner in the law firm of Nathens, Siegel LLP, a Toronto law firm restricted to family law matters. Brahm has experience in all aspects of divorce and family law and devotes much of his time to assisting clients with custody and access dispute. He can be reached at (416) 222-6980. View his firm’s Divorce Magazine profile and website.

This article originally appeared in Metro News Canada.

2 comments

  1. I am totally surprised Tiger’ ex-wife talked to People . My opinion of Elin just changed, dramatically, for the worse.

  2. Manager of this blog - Martha Chan Martha Chan says:

    I am hoping this is truly her first and last interview.

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