It’s his fault! He should pay more! (No-Fault Divorce)

Jill suspects Jack has a new girlfriend, possibly pre-dating the separation.  Jill wants to obtain a divorce and she is wondering what gains she can make as a result of Jack’s indiscretion…

In Canada, we have since 1986 what we call a “no-fault” divorce regime.  This means two things.  Firstly, you can ask for a divorce without having to demonstrate misconduct by either spouse, so long as you can show that you have been separated for at least one year.  It is the most common method of obtaining a divorce in Canada.  Divorce is an emotionally and financially taxing process and fault-based grounds of divorce (adultery, cruelty) require proof, which may intensify an already painful and expensive process.  Additionally, the law recognizes that family relationships are complex and matrimonial misconduct is not always the cause of the breakdown of a marriage.

Secondly, “no-fault” divorce means that your rights and obligations following a separation will be the same regardless of “whose fault” the separation is.  In other words, whether you separated amicably by mutual consent or whether you separated as a result of your partner’s adultery or other type of marital “misconduct”, the financial end result (division of property and financial support) will be the same.  Proving adultery, for instance, will not get you a bigger financial settlement.

So is there any benefit to proving cruelty or adultery within a marriage?  Beyond granting a divorce, the court will seldom (if ever) consider adultery or cruelty when making decisions regarding financial issues.  However, the courts may consider these as factors surrounding matters relating to children, if they influence the spouse’s ability to parent.  For instance, if a spouse has anger management issues resulting in domestic violence, this will obviously affect his ability to parent his children. However, it will not result in a higher spousal support (alimony) award. There is also a possibility of claiming damages as a result of an assault, but this requires a clear demonstration of injury and its

consequences. 

By choosing a no-fault basis for divorce (even if you feel that there has been some marital misconduct by your ex-spouse) you will alleviate some of the major stress of the process with regards to time, financial burden and emotional turmoil.  You may also be able to move on from the relationship without drawing out the process, particularly since there is no real advantage to be gained from the fault-based process.