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GENERAL PRINCIPLES REGARDING DIVORCE ON THE GROUNDS OF ADULTRY

January 2, 2015

Niyazov v Tkatch, 2014 ONSC 5143

This case addresses the issue of the general principles regarding divorce.

Background

In this case, the Husband admitted to committing adultery during the marriage. Consequently, the Husband and Wife brought a joint application for divorce on the grounds of adultery.

Analysis

Section 8 of the Divorce Act provides the following:

8(1) A court of competent jurisdiction may, on application by either or both spouses, grant a divorce to the spouse or spouses on the ground that there has been a breakdown of their marriage.

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

•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

•the spouse against whom the divorce proceeding is brought has, since celebration of the marriage,

•committed adultery, or

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

The Court found that a divorce “can be granted on the grounds of adultery in an uncontested proceeding where the respondent has provided an affidavit admitting to the adultery” (paragraph 5). However, the issue remains whether a divorce based on adultery may be granted on a joint application.

The Court held that jurisprudence has long established that a “party must not be allowed to use his or her own misconduct as the basis for a petition for a divorce” (paragraph 8). The Court found that the Family Law Act provides the Court with a “peculiar duty of protecting the sanctity of marriage and the family in the exercise of its responsibilities, in so far as it can” (paragraph 10). As such, the Court found that the Divorce Act and the Family Law Act operate in such a fashion to “prevent a co-applicant from seeking an order for divorce based on adultery” (paragraph 11).

Section 8(2)(ii) of the Divorce Act provides that a divorce based on adultery can only be brought by the innocent spouse against the party that committed the adultery. “In a joint application, the guilty party would be one of the co-applicants bringing the application, which is not permitted under s. 8(2)(ii)” (paragraph 11). In so finding, the Court dismissed the Application for divorce.

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