The breakdown of a marriage and divorce can cause emotional and financial hardship to all parties involved, especially if adultery has been committed.
In British Columbia (BC), the Divorce Act governs the divorce process.
The following article provides an overview of the procedure for obtaining a divorce as well as your rights relating to Spousal Support.
Grounds for Divorce in BC
A Court may grant a Divorce Order if grounds exist that prove there has been a breakdown of the marriage.
According to section 8(2), there are three ways to establish a breakdown of their marriage:
- Separation For at Least One Year
If you and your spouse have been living “separately and apart” for at least one year, you may have sufficient evidence to establish a breakdown of your marriage. If proven, a Court can grant a Divorce Order.
Generally speaking, this is the most common ground for divorce, as it is (arguably) the most straightforward to establish.
In most cases – You do not need to wait for the full year to come to an end before you commence legal proceedings. You may begin the legal proceedings before this period ends, and once the one-year period of separation has passed, the Court can grant the Divorce Order.
If there are children of the marriage, you will need to ensure that parenting arrangements and Child Support are dealt with prior to the Court granting the divorce.
- Physical or Mental Cruelty
If an individual is exposed to a level of cruelty that renders cohabitation with their spouse intolerable, this may be grounds to establish a breakdown of marriage. If proven, a Court can grant a Divorce Order.
However, this can be a difficult way of pursuing a Divorce Order because cruelty is subjectively understood. You will have to provide examples of the unnecessary cruelty that you have experienced.
If the Court is satisfied that it is not merely superficial conflict, then it may grant a Divorce Order. An example of what may be used to satisfy a Court of this ground for divorce is if your spouse has been criminally charged for assault.
- Adultery
If you have sufficient evidence to show that your spouse has committed adultery, this may be grounds to establish a breakdown of your marriage.
Although you may not be expected to have “caught them in the act” or to identify the person with whom your spouse committed adultery, you will need to have adequate proof that the affair did, in fact, take place. Mere suspicion of adultery is generally not enough to prove the claim.
In most cases – The most accepted way of providing this evidence is to have your spouse admit to the affair in an affidavit. However, this may be difficult as not every individual will agree to admit to this in a legally sworn court document.
In order to obtain a divorce immediately, you must be able to prove that there was adultery, or mental or physical abuse during the marriage.
Spousal Support
When one spouse is ordered by the Court to pay money to the other spouse after separation, this is known as Spousal Support or Spousal Maintenance.
You are not obligated to provide Spousal Support as an automatic consequence of your separation or divorce. You must apply for it.
You may be eligible to apply for Spousal Support in the following circumstances:
- if you and your spouse were previously married;
- if you lived together in a relationship similar to that of a marriage (for example, a common-law relationship), for at least two years; or
- if you lived together in a relationship similar to that of a marriage for less than two years, but you share a child/children with your former spouse.
Some examples of when the Court will consider awarding Spousal Support include:
- where child care obligations preclude you from working full-time to support your family;
- if you gave up job possibilities throughout your marriage so that your former spouse could pursue his/her desired career path; or
- where the separation caused financial difficulties.
Does Adultery Affect Your Spousal Support Claim?
In BC, there is a “no-fault” divorce system. Essentially, this means that the law doesn’t seek to punish someone who, for example, committed adultery.
Accordingly, the Divorce Act prevents the Court from considering the behaviour of either spouse during the divorce proceedings – unless it is considering their ability to parent their child/children.
Adultery will therefore have no bearing on your eligibility or entitlement to claim Spousal Support.
Generally speaking – A British Columbia Court will only consider the misconduct of a spouse when granting an order of spousal support in the circumstance listed in section 166 of the Family Law Act.
Specifically, a Court is entitled to consider the misconduct of the spouse if the spouse’s affair “arbitrarily or unreasonably” provokes or draws out the need for Spousal Support, or if it affects the ability to provide Spousal Support.
For example, in the case of Leskun v. Leskun [2006] S.C.J. No. 25, the wife insisted that she was so devastated and distressed by her husband’s affair that she was not able to return to her everyday life. In that case, the Supreme Court of Canada found that the husband’s adultery was relevant, in this case, to her inability to attain financial independence.
Key Takeaways
The law that governs divorce proceedings in British Columbia has a no-fault policy. This means that (in most cases) adultery will have no effect on whether or not you are entitled to claim Spousal Support, nor will it affect the amount of Spousal Support you can claim.
Adultery is one of the more difficult ways to demonstrate to the Court that there has been a breakdown in your marriage because you are required to provide sufficient proof that the affair took place.
It is important to discuss your individual circumstances with a lawyer so that you can be properly informed of all your options.
If you have any questions about divorce proceedings or spousal support, contact the family law lawyers at Solimano Law today!
Disclaimer – The information contained herein is of a general nature. It is not intended to be legal advice and it is not intended to address the exact circumstances of any particular individual or entity. No one should rely on or act upon such information without receiving appropriate professional advice and without a thorough examination of their particular situation. Please contact our office if you have any questions with respect to the content of this entry, this website, or our Terms and Conditions .