Nunatsiaq Online
COMMENTARY: Nunavut August 17, 2017 - 4:00 pm

Legal Ease, Aug. 17

Adultery is rarely relevant to who gets what, when couples split

JAMES MORTON

Canada has a no-fault family law system.

What that means is, with one significant exception, misconduct during marriage—basically adultery—is not relevant to determining who gets what and where the child lives.

Sometimes people say that’s not fair—why should adultery be ignored? Well there are several reasons.

First, the entitlements that people have coming out of a relationship are not lost because of bad behaviour—the right to share in family property is not based on being faithful but rather on the fact the property was acquired together.

Second, family law is already emotional enough. Going back to the days of looking for a “bad guy” will just aggravate the situation. Yes, sometimes one party is blameless and the other a rat, but usually a bad relationship is a joint effort.

The exception where adultery matters is as one of the grounds for divorce. In most cases, divorce is granted on the basis that the couple has lived separate and apart for a year, without planning to get back together.

But another basis for a divorce is adultery. “Adultery” for these purposes is precisely what most people think it would be.

That said, I have never done a divorce based on adultery—it is far more complex than a divorce based on being separated and there is no advantage to proceeding on adultery—except maybe for a lawyer who can charge a bigger fee!

Beyond this single point, however, marital misconduct is not significant in family law.

Specifically, past conduct of a parent is irrelevant in determining issues of custody or access, unless that conduct is relevant to the person’s ability to act as a parent to the child.

Adultery, by itself, will not have any impact on child custody. That said, if someone is so taken up with their new flame that they ignore the children, then that is a significant issue.

But that would also be true if, for example, someone suddenly became so involved with a new job that they ignored their kids.

Adultery has no impact on your entitlement to spousal support. Spousal support will not be reduced because the person getting support had an affair.

Similarly, your ex will not have to pay you more if your ex cheated on you. Division of family property will not be affected by adultery. Property is divided the same way regardless of why the relationship came to an end. 

Of course child support is entirely unaffected by adultery. The child cannot be seen to have been a participant in the marital misconduct.

And here it’s important to remember that the children should never be made pawns in a battle between ex-partners. The children are blameless and even if you hate your ex you should always be respectful and work with them for the sake of the kids.

James Morton is a lawyer practicing in Nunavut with offices in Iqaluit. The comments here are intended as general legal information and not as specific legal advice.

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