TMZ
reported on Monday that Gwen Stefani has filed for divorce from Gavin Rossdale, her husband
of 13 years, due to ‘irreconcilable differences’. Their public
statement indicates that the decision was mutual and that the musicians
filed the application and response jointly. However, word is according
to TMZ’s sources that Stefani believes that Rossdale was cheating on her.
If they were divorcing in Ontario, what affect, if any, would a claim by
Stefani that Rossdale committed adultery have on the divorce process and
any issues arising therein?
The short answer: Probably none.
Adultery and Process of Divorce
Under the
Divorce Act‘s no fault regime, the only legal ground for divorce is a ‘breakdown
of marriage’ which can be substantiated by either (a) the parties
living separate and apart for one year, or (b) the other spouse has committed
adultery or treated the applicant spouse with mental or physical cruelty.
Most Ontario couples typically go the route of living a full year separate
and apart. However, when an applicant spouse is claiming that the other
committed adultery, the
Divorce Act technically does permit a divorce to be granted in less than a year. If
the rumours of adultery were true, Stefani could theoretically fast track
the divorce if she is able to provide sufficient evidence to satisfy a
court of Rossdale’s adultery. While absolute and incontrovertible
evidence is unnecessary, there must be more than a mere suspicion of cheating.
However, this route to divorce can be inefficient. With the time and effort
spent to prepare the divorce application on the basis of adultery and
the glut of cases in the family courts, arguing infidelity as the basis
of marriage breakdown is unlikely to speed up the process. As the end
result is the same regardless, it may be more practical and cost efficient
for Stefani to base the divorce application on the ground of living separate
and apart for a full year like many other divorcing Canadians.
Adultery and Corollary Claims
In the end, adultery has no substantial implications within Canada’s
‘no fault’ divorce regime. The rights and obligations of the parties
relating to custody, access, support, and property division are generally
not affected by the reasons motivating the marriage’s termination.
Thus, whether or not Rossdale cheated on Stefani would be irrelevant to
any claims either may have against the other.