When you apply for a divorce you need to show the court that there has been a breakdown in your marriage. The three ways of doing this were outlined in our Grounds for Divorce in BC article. This article will give you a more detailed review of proving marriage breakdown due to adultery.
Who can apply for the divorce in an adultery situation?
Only the spouse who did not commit adultery can use it to argue for a divorce. In other words, you can’t go out and commit adultery and then apply for a divorce based on your own cheating.
You also can’t make a plan with your spouse for one of you to commit adultery for the purpose of getting a divorce sooner than one year after separation. The court will reject the application and you’ll have to wait until you’ve been separate and apart for one year.
When can the application for divorce be made?
You don’t need to be separate and apart or to wait for a year in order to get a divorce based on adultery. You can apply right away and the divorce can be granted without delay.
What do you need to prove to the court?
The definition of adultery is voluntary sexual intercourse between a married person and someone other than his or her spouse. Historically, only sex outside marriage with a person of the opposite sex was considered adultery, but in 2005 the courts changed this. Today, adultery is sexual intercourse outside of one’s marriage with a person of either sex.
A single act of adultery is enough to prove this ground for divorce. There need not be any long affair or pattern of cheating.
You also don’t need to have caught your spouse in the act. Instead, you have to give the court enough evidence that it seems, on the balance of probabilities, that the act took place. This standard is lower and easier to prove than the well-known criminal standard of “beyond a reasonable doubt.” However, mere suspicion is not enough on its own to prove adultery.
In the more straight-forward cases, the offending spouse will have admitted to the act or the person that he or she committed adultery with will testify credibly in court to the affair. In other circumstances, you will need to bring some evidence that there was both intimacy and opportunity. This could include other witnesses, bills and receipts, emails and voice mails, or photographs.
Once the spouse making the application has proven intimacy and opportunity, it’s up to the one being accused of adultery to present evidence that proves otherwise. If he or she doesn’t, then the court will accept that adultery happened. If evidence is presented on both sides, then the court will decide whose story the evidence most favours.
What about other acts or phone/cybersex?
Generally, there must physical sexual relations between the parties for it to count as adultery. Flirting, kissing, cybersex, phone sex or other similar acts aren’t usually enough.
What if the adultery was a long time ago?
It depends. If you knew about the adultery and forgave your spouse and continued living with him or her, then you will probably not be able to use this ground for divorce. However, if you’ve just recently discovered a past act and haven’t forgiven it, then it could be the ground for divorce.