Robin Thicke: The Blurred Lines of Adultery

Robin Thicke and Paula Patton stunned Hollywood back in February when they announced separation. Five months later, Patton and Thicke have yet to file for divorce despite Patton's rumoured intentions to do so. In the meantime, the celebrity followers are entertaining themselves analyzing Robin Thicke's many desperate and highly public attempts to woo back his estranged wife. The pair met as teenagers in the early '90s and married in 2005. In recent public appearances they have both expressed continued affection and love for each other despite the breakup. So what could have ended the couple's 20-odd-year relationship?

With Thicke's salacious artistic persona, word is that he was blurring the lines of their dysfunctional marriage a little too much. Thicke has been caught in numerous compromising positions with female fans recent years, raising suspicions that he has been unfaithful.

One scandalous source even reported that the pair was two parts of a ménage-a-trois for a couple years – at least until Patton caught her husband and the other woman engaged in rampant sexual congress without her. Supposedly, while Patton forgave the indiscretion and gave Thicke another chance, this latest affair was the straw that eventually broke the camel's back.

Right now, these rumours are just speculation; there is no public confirmation of whether any of the alleged indiscretions actually occurred. Given the media attention around Thicke's fame as a ladies' man, it would be interesting to look at how the rumours of his extramarital relations might play out in an Ontario divorce.

Under s. 8(2)(b)(i) of the Divorce Act, Patton can apply for divorce on the grounds of adultery if Thicke had intimate sexual relations with another person without her consent.

The courts would require evidence that, on a balance of probabilities, Thicke had both the opportunity and inclination to commit adultery. Mere evidence of a slight opportunity is not enough. For example, having a hotel room available for use is not on the same level of probable opportunity as being alone with a willing companion in a private hotel room for hours. Additionally, Thicke's reputation as a flamboyant Casanova is not credible evidence of a factual inclination to infidelity. To best substantiate this requirement, Patton raise evidence that demonstrates some form of intimacy - usually physical intimacy - between Thicke and another woman or man. However, the law does not require Paula to supply evidence of actual physical intercourse - that is just too messy.

Nevertheless, even if Patton could prove that the allegations were true, she might be barred from divorcing Thicke for adultery under s. 11(1)(c). This section applies to situations where a spouse condones the other's affair by forgiving and continuing or resuming cohabitation with a full knowledge of the infidelity. Patton's continued living with Thicke after each possible incident suggests she may have forgiven him if they happened. However, the mere fact that a couple continues to cohabit does not mean the innocent spouse condoned the adultery. Aside from still living with Thicke, Patton must have actually intended to reconcile and forgive his infidelity.

Considering Patton's public support of her husband following the alleged incidents involving fans, it is likely that a court would find she forgave those offences. If this is the case, under s. 11(2), she can no longer use them as a ground for divorce in any future application.

However, there is not enough information to speculate as to when the alleged affair arising from the threesome occurred prior to their separation. Depending on the timing, s. 11(3) may come into play. Section 11(3) gives couples a risk-free 90 day period to try and reconcile without the innocent spouse losing their right to claim divorce for adultery. Patton could still divorce her husband under s.8(2)(b)(i) if Thicke did cheat with their threesome partner and any attempts at reconciliation ended before the 90 day period expired.

If Patton did not leave Thicke before that grace period rolled over, she would have to wait at least the full year long of separation before a divorce order can be granted.

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