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.