The issue of adultery has certainly been in the news recently. An increasingly common question is how cheating during a marriage impacts each spouse’s rights and obligations in a divorce proceeding. For example, does a cheating spouse have to pay more in spousal support or receive less of the parties’ property?
The short answer is no.
Our system is often referred to as ‘no-fault divorce’. This means that the courts do not consider whether either party has committed adultery when assessing entitlement to spousal support or division of property. Practically, this means that if you have been cheated on, you are not entitled to more spousal support or a larger share of the family property as a result. Conversely, if you have been unfaithful, a court will not order you to pay more spousal support, prevent you from receiving spousal support or award you less property as a result.
Adultery will also generally not affect whether a party is awarded custody or access to a child, or the amount of child support payable.
One of the only ways that adultery can materially effect a divorce proceeding is that it may allow the parties to file for divorce without waiting the usual one year period of living separate and apart. However, filing for divorce on the grounds of adultery is a more involved process and many parties will still chose to file under the one-year living separate ground, despite the fact that adultery has taken place.
Dealing with adultery in your marriage can be upsetting and confusing, from either perspective. A family lawyer can help you understand your rights and advise you on how best to protect your interests while considering your next steps.