SHOULD ADULTERY ALONE BE A GROUND OF DIVORCE
In Canada, Section 8(1) of the Divorce Act sets the ground of divorce as living separate and apart for adultery and cruelty for one year. However, for one to bring a divorce, he/she must be ordinary residents in that community. As stated in Hinter v. Hinter (1996) 23 RFL (4th) 401, 1996, the Court quoted MacPherson, Ontario CA 1976. It stated that a person’s arrival in a new locality to make a home in that locality could qualify one as an ordinary resident.
Before 1968, the grounds of divorce varied from one locality to another but cruelty, adultery and desertion were the grounds of divorce. And the enactment of the Divorce Act, 1985 provided for both fault and no-fault based ground of divorce. The fault grounds of divorce are cruelty and divorce, whereas the no-fault-based divorce is living separate and apart for one year. Drawing from the Divorce Act of 1985 and Section 91(26) of the Constitutional Act, 1967, adultery alone should be a ground for divorce.
The Court in Halpern v. Toronto (2003), while considering the legality of marriage, held that marriage is the lawful union of two persons to exclude all others. One spouse engaging in adultery means violating the promise and sanctity of marriage, which is supposed to be the union between two people by excluding all others. Based on this, adultery alone should be a ground for divorce. In P. (S.E) v. P. (D.D.) 2005 BCS 1290 (B.S S.C), the Attorney General of Canada intervened to support that adultery is not limited to sexual relations between people of the opposite sex; it also extends to people of the same sex.
Secondly, adultery alone should be a ground for divorce because the Criminal Code, section 293, terms polygamy as an indictable offense. Polygamy is the condition of having more than one spouse or marriage partner at one time. If the Criminal Code terms polygamy as an indictable offense, then adultery alone should be a divorce ground. However. In countries like South Korea, where polygamy is legalized, it was reasonable to abolish adultery as a crime because of the Country’s changing morals and a growing emphasis on individual rights. In South Korea, adultery is no longer a ground of divorce. Therefore, if Canada allows polygamy, then adultery cannot be allowed as a ground for divorce.
Thirdly, adultery alone should be a ground for divorce because some reasons for marriage include: mutual support and care, moral, psychological, and economic interdependence. Also, marriage is based on trust and commitment. When one spouse commits adultery, it is considered a betrayal of the trust and love that one spouse has towards the other person; adultery can therefore be considered on its own as a ground for divorce. However, as held in Shaw v. Shaw (1971), 7 N.S.R (2d) 77, 1971 CarswellNS 26 (N.S.T.D), adultery show be established on a preponderance of probabilities. One who alleges must prove. Where there is circumstantial evidence, the circumstances must be such to lead to a fair and reasonable inference to that conclusion.
The scholars who argue that divorce alone should not be a ground for divorce state that forgiveness and compassion should be encourages in marriage. Further, children’s best interests should be considered. They argue that in some circumstances where children’s safety and security are better when both parties are together, they should consider staying together for the sake of the best interests of the children. Others argue that divorce alone should not be a ground for divorce, and as such, it must be accompanied by cruelty or separating and leaving apart for a period of one year or more. It should be noted that in most cases, spouses decide whether adultery can be a ground for divorce; some choose to forgive, while others choose to undergo a divorce.
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