Can A Spouse Sue for Adultery in Alberta
In Canada, divorce is governed by the Federal Divorce Act. There are no provincial laws governing marriage or divorce. The Divorce Act provides for three “grounds”, or reasons, for which a divorce will be granted. These are:
- adultery
- cruelty
- living separate and apart from your spouse for one year.
Of the three grounds, by far the most commonly used is that the spouses have been separated for a year, even if the real reason for the divorce is that one of the spouses committed adultery. Our Edmonton divorce lawyers can help you determine the best way to claim a divorce in your situation.
Do you still have to wait a year to get divorced?
When can a spouse sue for adultery in Alberta? You do not have to wait any length of time to either file or obtain your divorce if the ground you claim is adultery (or cruelty). However, this will probably only enable you to obtain a divorce quickly if your spouse agrees to sign an affidavit admitting that they committed adultery.
If you need to have a trial to prove the adultery, it is likely that you will end up having to wait at least a year for your divorce order.Therefore, many people find it more practical to file for divorce based on one year of separation.The court requires less evidence, so it is easier and cheaper - unless your spouse is willing to cooperate and provide all the evidence relating to the adultery.
What is adultery?
Adultery occurs when one spouse voluntarily has sexual intercourse with a person other than their spouse during the course of the marriage. Adultery has not occurred, and a court will not grant a divorce if:
- you lie and say you committed adultery when you really didn't (collusion)
- you encouraged your spouse to commit adultery so you could obtain a divorce (connivance)
- you forgave your spouse for the adultery they committed and agreed to continue the marriage (condonation).
If you forgave your spouse for a particular incident of adultery and then they committed adultery again after that, you can still claim a divorce based on adultery, as long as you did not give them permission to commit adultery on an ongoing basis, such as in an open marriage.
How can a spouse sue for adultery in Alberta?
In order for an Alberta court to grant a divorce based on the ground of adultery, the court must have evidence that the adultery occurred. If the spouse who committed adultery is willing to admit to the adultery in court, they can sign an affidavit swearing to the adultery.
If the spouse who committed adultery is not willing to admit to the adultery, it can be more difficult to prove. In order to prove adultery at a trial, you will need a witness who can testify about the adultery based on something they saw or did themselves. Someone who heard about an affair between two other people but did not witness it first-hand cannot provide evidence that the affair happened.
Contact our Edmonton divorce lawyers for legal assistance today
Our Edmonton divorce lawyers will provide you with the advice you need to determine if you can, or should, claim adultery as a ground for divorce. Let us help you protect yourself and your family. Get in touch today! We are proud to represent Albertans with their legal needs and a member of our legal team will be pleased to speak with you.
Disclaimer: Please note the content contained in this article is not intended to act as legal advice as each matter is different. Please consult with an Alberta lawyer for specific legal advice on this topic