Divorce and Adultery: How It Can Impact Your Case

The law is straightforward for divorce and adultery: If you cheat, your spouse may divorce you. But as with everything in legal circles, this simple-sounding rule is more complex in practice than you might expect. For one thing, the legal definition of adultery may not match your expectations.

Books and movies have trained us to think of it as a long-running affair between two furtive lovers. But legally, even a single act of adultery is enough to launch a divorce. The only requirement is that the adultery has to have taken place before the divorce petition was brought. The standard of proof is also lower than you might expect. There is no requirement that a spouse get “caught in the act” or that there be photos or physical evidence.

Instead, a judge will simply decide if there is a “preponderance of evidence,” basically whether it’s more likely than not that adultery happened. It’s not enough that the other spouse merely suspects that adultery is going on or that the spouse had the opportunity to cheat.

But for neither is hard evidence required. A judge could decide adultery occurred simply by inference—that the facts and circumstance lead to a reasonable conclusion—and there’s no requirement that the person with whom the spouse is cheating be identified or named. Of course, if either the cheating spouse or the other person admits to the affair, or submits evidence of it, then that’s more than sufficient.

Even if adultery is proven, there is still one more hurdle. In the right circumstances, adultery can be condoned. For example, if out of love and a desire to make the marriage work one spouse takes back an adulterous, cheating spouse, then he or she may not be able to ask for a divorce based on the earlier adultery. In this scenario, the innocent spouse may be considered to have condoned the adultery for divorce purposes.

The Changing Face of Divorce and Adultery 

Changes in society have also led to changes in how adultery is defined. A few years ago, Canadian law defined adultery the same way it defined marriage—as occurring between two people of opposite sexes. But in a 2005 case, a woman in British Columbia was granted a divorce after she showed that her husband had committed adultery with another man, and the definition is now much broader.

The internet has also changed the kinds of behaviors that can lead to a divorce. From cell phones to text messages to webcams, spouses with a wandering eye have a lot more ways to get into trouble. But the law, so far, has not changed: For it to be considered adultery, there must be actual physical contact.

Regardless of the details, adultery is not always the best grounds for divorce. In fact, it can take so long for cases involving adultery to be heard that the divorcing spouses may have already lived apart for more than a year—a much simpler basis for getting a divorce.

This is an excerpt from Russell Alexander’s new book, The Path to a Successful Divorce: Russell Alexander’s Guide to Separation, Divorce and Family Law.