Just Like Ashley Madison, Adultery in Divorce is Confidential (Sort Of)

In family law, claims of adultery are generally irrelevant to any issue other than whether there has been a breakdown of the relationship. Adulterers continue to have all of the rights and obligations found in the Family Law Act.

On July 20, 2015, CBC reported that Ashley Madison, the popular infidelity website which encourages married men and women to cheat on their spouses, was hacked. The hackers message threatens to “release all customer records, profiles with all customer’s secret sexual fantasies, nude pictures, and conversations and matching credit card transactions, real names and addresses, and employee documents and emails” if the Ashley Madison and Established Men (a brother site) websites are not shut down. The owners of Ashley Madison and Established Men declined to shut down the websites.

While adultery is not a new threat to the institution of marriage, sites like Ashley Madison have made it easier for married men and women to find other like-minded married people cheating on their spouses. If and/or when cheating results in the end of a relationship, British Columbia courts have said that if you and your spouse have been separated for a year, adultery committed by either of you is wholly irrelevant to obtaining a divorce.

In order to obtain a divorce in British Columbia, there is one ground: that there has been a breakdown of your marriage. In order to establish that there has been a breakdown of your marriage, the Divorce Act lists three scenarios:

S.8 (2) Breakdown of a marriage is established only if:

(a) the spouses have lived separate and apart for at least one year immediately preceding the determination of the divorce proceeding and were living separate and apart at the commencement of the proceeding; or

(b) the spouse against whom the divorce proceeding is brought has, since celebration of the marriage,

(i) committed adultery, or

(ii) treated the other spouse with physical or mental cruelty of such a kind as to render intolerable the continued cohabitation of the spouses.

Pursuant to s.8 (2)(a), if you have lived separate and apart from your spouse for more than one year there has been a “breakdown of the relationship”, therefore claiming divorce on the grounds of adultery or cruelty becomes unnecessary.

In MacPhail v. MacPhail, 2001 BCCA 250, the BC Court of appeal found that the court may award costs when spouses have lived separate and apart for one year but one spouse insists on pursuing another ground. In that case, the husband insisted on pursuing a claim for divorce on the basis of cruelty despite the fact that the spouses had not lived together for a period of one year or more. At paragraphs 10-11, the court says,

[10]The clear trend of the law in domestic relations is to remove fault from most issues. As it usually takes a year to bring a contested matter to trial a divorce can usually be given on the ground of one-year separation. In those circumstances a cruelty allegation is unnecessary and will likely prolong the hostility between the parties. A cruelty finding bears a stigma; it should be avoided when no useful purpose is served….

[11] In the present matter I think, with respect, that it would have been better if the trial judge had proceeded with the divorce on separation only and declined to hear the cruelty issue.

More recently in Acquilini v. Acquilini, 2013 BCSC 217, Mr. Justice Smith cites McPhail and extends the proposition to those pleadings which allege adultery as the basis on which to claim the breakdown of the relationship. Beginning at paragraph 52, Justice Smith states:

[52] While adultery may no longer carry a public stigma, it can still be a highly emotional issue for the parties. Like the cruelty allegation that was before the court in McPhail, continued reference to it is likely to increase hostility and make all issues more difficult to resolve.

[53] There is no dispute on the pleadings that the parties have been separated for more than one year. Assuming one or both confirms that fact with sworn evidence at trial, marriage breakdown will be established and the court will be in a position to grant the divorce. Any evidence of adultery will be unnecessary. Counsel for the claimant has not suggested any other issue to which adultery evidence would be relevant.

[54] I take McPhail to be a clear direction from the Court of Appeal that I should decline to hear evidence about the alleged adultery at trial. As the evidence will not be admissible at trial for the purpose of divorce and it has not been shown to be related to any other “matter in question”, the respondent should not compelled to answer those questions on discovery.

It is estimated that the Ashley Madison site has 37 million members. It appears that those members may soon be in grave danger of no longer being able to maintain anonymity if the hackers release the information they have threatened to release. If any of the 37 million members need to obtain a divorce, so long as they have lived separate and apart from their spouse for more than one year, they may be able to maintain anonymity in relation to the reason for their divorce or seek additional costs.

If you’re the mistress or paramour on the other side of an unfaithful spouse who is going through a divorce, the Supreme Court Family Rules in BC specifically do not allow either party to name the alleged adulterer so your personal choices may remain undisclosed.

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