Why you can’t divorce if you commit adultery.
If you cheat on your partner, you can’t divorce them because of your adultery. I had a female client file for divorce last week, and under the question, what sex is your spouse’s lover? She wrote male.
Her answer was an immediate red flag because according to the law adultery is when your husband or wife had sex with someone else of the opposite sex, and you find it intolerable to live with them.
A same-sex affair is not adultery.
That’s right, the opposite sex. It doesn’t count as adultery if your spouse has had sex with someone of the same sex. And this is the same if you are in a same-sex marriage. Meaning that even though same-sex marriage is legal, a gay or lesbian married couple can’t divorce because of adultery if they cheated with someone of the same sex.
I emailed my client back and explained that our outdated law doesn’t consider same-sex affair as adultery. To my surprise, her response was that she was filing for divorce because of her adultery – red flag number 2.
You can’t file for divorce because of your own adultery.
Remember the law above, adultery is when your husband or wife had sex with someone else of the opposite sex, and you find it intolerable to live with them. You can’t file for divorce because of your own adultery. When filing for divorce, the petitioner must use their spouse’s adultery as the reason for the divorce, not their own.
And there’s something else. Let’s look at that statement again. Adultery is when your husband or wife had sex with someone else of the opposite sex, and you find it intolerable to live with them.
You can’t use adultery as your reason if you continue to live together for longer than six months after finding out about the adultery.
So if you find out that your spouse has cheated on you, but you spend the next half year deliberating over whether the marriage can be saved, only to decide that you do want a divorce, you won’t be able to get one unless you use a different reason.
Using reasons other than adultery
Back to my client. So what can my client do if she can’t divorce because of her adultery? She has the same option as the person who stays with their spouse for longer than six months after finding out about the adultery – she has to use a different reason for the divorce.
Assuming that neither wants to wait for at least two years before filing for divorce, the only option is unreasonable behaviour.
Unreasonable behaviour can include physical violence, verbal abuse such as insults or threats, drunkenness, or milder accusations such as a lack of intimacy or refusing to do the housework. Just remember, it has to be your spouse’s behaviour, not your own.