Canada Vs The US: How Adultery Effects Divorce Law

Canada Vs The US How Adultery Effects Divorce Law

For the first time in Canadian history, there are more unmarried than married people above the age of 15, reflecting a huge change over the years in how people view matrimony and divorce. After peaking at 41 percent during the 1980s, the divorce rate dipped to 37 during the 1990s, before returning to a rate of about 40 percent in the previous decade.

In the United States, the divorce rate surged to about 50%, before stabilizing over the past decade. The trend within the states suggests that the divorce rate may dip to as low as 33% in the near future, should current trends hold.

Many of these divorce cases in Canada and the United States started because of adultery, which has long been considered an irrefutable cause for the dissolution of marriage. The main differences in the way adultery are treated stems from the fact that Canada has a federal divorce law while the United States allows individual states to determine how adultery affects family law.

Adultery In Canadian Divorce Law

Canadian divorce law has changed drastically over time, resulting in a system that has become fairer for all parties involved. One of the more significant changes to divorce law in Canada took place in 1985 when parliament lessened the required separation period to twelve months. Previous to this change, lawmakers slowly implemented the idea of a “breakdown in marriage” being the sole requirement for divorce, beginning in 1968, when Canada’s first divorce law was established.

As a result, “no-fault” divorce has been in place for decades in Canada, although estranged spouses may also seek to file a divorce that places the blame on the other spouse. In these cases, the spouse pointing the finger needs to prove malfeasance, whether it’s adultery, physical or emotional distress.

Considering the fact that divorce proceedings that are dragged through court tend to be very expensive, initiating a divorce that blames one partner over the other tends to be performed either for protective or punitive purposes. In cases where a spouse has been abused or fears that their ex-spouse will refuse to pay alimony or child support, court proceedings may provide legal protection post-marriage. On the other side of the coin, spouses may simply be attempting to punish their ex through the judicial system, which rarely results in an amicable settlement.

Divorce Law For Adultery In the United States

There is no federal divorce law that covers all of the United States, unlike Canada, which specifically sets consistent rules and regulations throughout the country. Instead, the U.S. allows individual states to legislate divorce law, which results in each jurisdiction setting its own precedents.

Although not prosecuted, adultery is technically considered a crime in some states, while others don’t include adultery in their criminal code. The same differences may be found in divorce laws across state lines. Some states punish those who have caused divorce through adultery, while others only consider adultery a grounds for divorce. Depending on the state, spouses may opt for a no-fault divorce instead, similar to the Canadian system.

However, adultery becomes an important part of divorce proceedings when a spouse “has used marital assets to support the extra-marital relationship”. In terms of custody, adultery matters when the children have been exposed to questionable situations. If one spouse ends up transmitting a disease that’s sexual in nature because of adultery, many states will allow for an interspousal tort case based on personal injuries incurred.

Protect Yourself During Legal Proceedings

Regardless of whether or not adultery is a cause of your divorce, it’s important that you obtain expert family law counsel when you’re dealing with the breakup of a marriage.

Galbraith Family Law lawyers are trained in Collaborative Practice, and we have been named the top firm by the Barrie Examiner multiple times. Our legal insights have also been featured in the Globe and Mail, as well as Lawyers Weekly.

Click here to contact us, or to schedule a consultation. Or you can call the local office listed at the top of the page.


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Brian Galbraith

Brian Galbraith is the owner and founder of Galbraith Family Law Professional Corporation. Brian is known in the legal community for his commitment to efficiently practicing family law using technology and streamlining the divorce processes.

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