It's Still Cheating If You're "Stampeding": Banaszek Family Law explains how adultery affects the Alberta divorce process
/The Calgary Stampede has gained considerable notoriety as the biggest party in the West in its 107 years since inception, putting the Albertan tradition and festivities on the international map. Along with fewer Smithbilt hats and plaid flooding the streets of Calgary as Stampede winds down each year, comes a reoccurring trend: a spike in divorce filings, dubbed “The Stampede Effect”.
The prolonged party atmosphere (officially 10 days) often involves free-flowing alcohol, cowboy/girl costumes, concerts and shows galore. Stampede attendees are prepared to let their guards down and let loose. An already vulnerable relationship may not be able to survive Stampede, while some people experience an epiphany in the midst of all the socializing that they would prefer to be single. Although there is no pooled data publicly available to establish the actual increase in separations/filings for divorce following Stampede, it is no surprise that this trend exists. Questionable behaviors and actions are common during Stampede, including adultery, often leading to legal dissolution of marriages.
Many divorce lawyers in Calgary are prepared for the usual influx of calls following Stampede to field questions about the legal effects of adultery, and the divorce process in general. An American study suggests that increases in divorce filings often peak right after big events and seasonal changes, like right after winter and summer holidays, or in Calgary’s case, when “The Greatest Outdoor Show on Earth” winds down.
Banaszek Family Law provides you with some insight into whether adultery needs to be brought up in the legal context of your separation/divorce, and if you wish for it to be advanced, what type of evidence you require to successfully obtain your divorce:
Does adultery impact divorce proceedings?
In Alberta (and throughout Canada), the law relating to divorce based on adultery is governed by the Divorce Act (section 8(2)) which provides that the breakdown of a marriage is established legally only if:
The spouses have lived separate and apart for at least one year (most common ground for filing for divorce); or
The spouse against whom the divorce proceeding is brought has committed adultery; or
The spouse against whom the divorce proceeding is brought treated the other spouse with physical or mental cruelty.
It must be the other party who commits the act of adultery to file under this ground, meaning, a spouse cannot apply for a divorce based on his or her own adulterous acts. It is considered a “no fault” divorce if you file on the grounds of one-year post separation. A “fault” divorce is when you file under the other two grounds or a combination of them. In essence, when filing under the “fault” divorce grounds, the spouse initiating the legal process is blaming the marriage breakdown on the behavior of their spouse.
If your spouse committed adultery, you may file for divorce on this basis at any time after it becomes known to you. Although many spouses blame adultery as the culprit for their marriage breakdown, many also acknowledge that there were other relationship issues present before the adultery even occurred. Therefore, it is not often the case that separated spouses file for divorce based on adultery.
In short, if you find out that your spouse has committed adultery and you wish to obtain a divorce, it is one way in which you may obtain one from the Court of Queen’s Bench of Alberta. Although it is an established ground for filing for divorce, it does not ultimately determine or often impact how matrimonial property/debt is divided, parenting arrangements are made, or how other corollary relief matters are handled. Past conduct of a parent is irrelevant in determining custody arrangements, unless that conduct is relevant to the spouse’s ability to parent (D.B.S. v. S.R.G., 2005 ABCA 2, para 69).
How much evidence do you need to prove adultery?
Adultery must be proven in court with evidence. One way of proving that adultery existed in the marriage is by filing an affidavit sworn/affirmed by the person who committed adultery with your spouse or your spouse attesting to this fact. As many people who commit adultery do not want to confirm this for the sake of obtaining a divorce (or their spouses does not wish for it to be on the court record), most file for divorce on the grounds of having been separated for at least one year. Most spouses avoid seeking out the necessary evidence to obtain a divorce based on adultery, minimizing legal costs and the time spent to obtain the divorce judgment.
In order to qualify as "adultery," there must be an actual, physical sexual relationship between one of the spouses and a third party to the marriage — a cyber-relationship or emotional cheating will not qualify. In order to prove adultery, there is no requirement that the other spouse gets "caught in the act," or that there be physical evidence presented to prove the affair. Instead, as with all civil actions, a court must be satisfied on a “balance of probabilities” that the evidence is credible and that adultery has taken place. The onus to prove the adultery is on the spouse who commences the divorce action on this ground. The evidence will be considered sufficient if the adulterous spouse admits to the extramarital affair.
The court is focused on resolution rather than on placing fault on one of the spouses for the dissolution of the marriage. For the most part, blaming your spouse does not improve or diminish your matrimonial property entitlement in Alberta, and so even if adultery is present, it often does not play a role in divorce proceedings.
Banaszek Family Law helps you find clarity during your marital separation
Seeking independent legal advice from an Alberta lawyer is the first step to gaining legal knowledge and an understanding of how to handle your divorce matter. If you have never met with a family lawyer and are unclear on the process, read this blog post to learn what an Initial Consultation is and why it is beneficial to come prepared: Banaszek Family Law prepares you for your initial consultation with a family lawyer.
You are one click away from taking control of your life and finding answers to your family law and divorce questions. Make the next move by scheduling your initial consultation with Adrianna Banaszek today by clicking HERE.
Banaszek Family Law wishes everyone a safe and memorable Stampede! YAHOO! ●
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