On a regular basis, clients hire a lawyer and one of their first requests is that the lawyer get them a divorce based upon "adultery". Yet, it's rarely done. Why?
The Divorce Act does allow one spouse to apply for a divorce based upon the ground of adultery. Only the spouse who was cheated upon can apply for divorce using this ground. You cannot apply for divorce because you cheated.
As well, there must not be any condonation. Basically, if a year ago you found out that your spouse cheated, but you continued on as a married couple, you cannot now decide to apply for divorce based upon adultery. The discovery of the infidelity has to cause the end of the marriage.
The spouse who cheated has to either attend a court hearing and admit the adultery, or sign an Affidavit admitting it.
The major effect of getting a divorce based upon adultery is that the divorce can be granted faster than the ground of one year separate and apart. The divorce could be granted by a Judge much sooner.
But why isn't it done more often? First, the end of the marriage can be a messy matter, and there may not be agreement on whether the relationship ended because of adultery, or whether the marriage was over before there was another person involved. Second, the accused adulterer may not be prepared to admit to any cheating, and there may not be any proof. Third, a divorce based upon one year separate and apart can be done entirely by paperwork with no evidence out of the ordinary, unlike a divorce based on adultery which can mean a court hearing and salacious evidence.
Lastly, and probably the biggest reason, is that before the divorce is granted, the couple need to work out their other issues - custody, child support, spousal support, valuations and division of assets and debts, sale of the marital home etc. Most often, by the time an agreement is reached or a court resolves those issues, a year has passed. At that point, the more straight-forward divorce makes sense.
The Divorce Judgment looks exactly the same if it is granted based on adultery or one year separate and apart. So it's often not worth the trouble.
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