We have blogged about the 31 year old Kate Hudson before and will likely blog about the young actress again. In our previous blog we wrote about Hudson's pregnancy and the rights of the child and the corresponding obligations of parents. Since our last blog, not only have Hudson and her rock star boyfriend, Matt Bellamy, become parents, but tabloids have reported that Bellamy has betrayed Hudson by cheating on her with a younger woman. However, despite the rumors, Hudson and Bellamy have recently announced their engagement.
If there is any truth to rumors, it is likely that we will soon be blogging on the couples divorce. In which case, it is interesting to note that under the Canadian Divorce Act, adultery is a just ground upon which may seek a divorce before the parties have been separated for a year. That is, while infidelity is not contrary to the law, it is a method by which the non-cheating spouse can expedite the divorce process.
Pursuant to the Divorce Act, parties may seek an order for divorce if they have been living separate and apart from their spouse for a year. To be living separate and apart does not require that the two parties be residing in separate households. The requirement that spouses live "separate and apart" has been given judicial consideration and a number of factors have been established to assist the court in determining whether two persons are residing separate and apart from one another.
Essentially, the court looks to see whether the circumstances establish that the parties have not been behaving like a married couple. Some of the factors include, but are not limited to:
- physical separation;
- withdrawal by one or both of the spouses from the matrimonial obligation with the intention to destroy the matrimonial consortium;
- absence of sexual relations is not conclusive but is a factor to consider and
- lack of communication between the spouses and discussion of family problems.
Where parties have not been separated for one year and wish to obtain a divorce before one year of separation, this may be done by filing for divorce on the ground of adultery. Adultery occurs were one spouse has sexual relations with another person while being legally married to his or her spouse. The fact that the parties are separated at the time of the adulterous act is insignificant so long as the parties are still married.
However, the act of adultery cannot be used as a valid ground for divorce where both parties are aware of the adultery and the husband or wife opt to live with the adulterous partner for a period of three months or more after the fact. The rationale behind the latter is that by continuing to reside with one another for a period of three months or more post such an incident, the injured spouse is found to have condoned the adultery by continuing to reside with the cheating spouse. In order for the adultery to be used as a ground for divorce without issue, the non-adulterous party must separate from the other spouse within three months of having learned of the adultery.
While adultery is one way of getting a divorce earlier than one year of separation, this is not always so easy done. That is, the spouse that is being accused of adultery may deny that the adultery ever occurred and thereby cause the divorce to become more costly than it would be if it proceeded on an uncontested basis. One way of working around this potential problem is by having the adulterous spouse swear an affidavit admitting to the affair. But, again, this is not always so easy to obtain.
In this case, we are unsure whether there is any truth to the rumours about Bellamy's cheating ways, nonetheless, if it turns out that Bellamy betrays Hudson after the two marry, any such affair would be a sufficient reason to seek an order for divorce before the expiry of one year after the pair's separation.