I am often consulted by a husband or wife when their relationship is not going well or they feel they have run out of steam trying to keep it going. Economic pressures, work problems, family issues – these can all put huge stress onto a relationship. Some people try relationship or marriage counseling with mixed success. Others don’t see the value of counseling and refuse to go. Statistics suggest that marriages are ending much earlier than they used to. Whether this is a product of generational changes in expectations is something I am not qualified to comment on.
Some break-ups are clearly related to the “mid-life crisis” and a desire for change which flows into every aspect of the crisis sufferer’s life. Children growing up and becoming more independent may also trigger the “I want a divorce” conversation in many cases. An extra-marital relationship with a person who seems much fresher and more interesting than one’s partner, can also bring on the end of a marriage.
Most people, I like to think, would prefer to approach their divorce with common sense, objectivity and civility. Canadian divorce law is designed to help parties try to maintain this approach. The Divorce Act (Federal not Provincial law) sets out the only grounds accepted by our courts for divorce. The Act requires one or both spouses to establish the breakdown of the marriage by referring to one of three possible grounds: 1. The spouses have lived separate and apart for at least one year before the divorce order is granted and were living separate and apart when the divorce proceedings were started; 2. The respondent spouse has committed adultery; or 3. Physical or mental cruelty of such a kind as to make continued cohabitation intolerable.
None of the grounds make the divorce more advantageous for one spouse or more disadvantageous for the other when it comes to child or spousal support or even getting the divorce order itself. This is the “no fault” aspect of divorce in Canada. If there is an allegation of adultery, or physical or mental cruelty, that allegation will not appear in the divorce order. Rarely is the third party boyfriend or girlfriend of a spouse added as a co-respondent to a claim, and in most cases, it seems to me that our courts would find this addition to be unnecessary and a mark of vindictiveness. Only if one spouse is seeking the earliest possible divorce might the fact of adultery or physical or mental cruelty be of assistance (i.e. the one year living separate and apart does not apply in such cases).
Because of the broad allegations and nasty accusations that are often made back and forth in divorce cases, many of which are never actually tried or tested in court, there is no public access to the court file: only the parties and their lawyers and agents are authorized to access the court file. So, alleging that your spouse is an adulterer and having that fact before a judge at some point in the proceeding may make you feel better (temporarily) but it won’t affect the outcome.
