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.