Marriage Re-Defined Means Adultery Re-Defined

The Supreme Court of British Columbia recently re-defined “adultery”.  Traditionally, there has been a reasonably clear definition and understanding of adultery for the purposes of obtaining a divorce (the Divorce Act, section 8, states that a spouse may seek an immediate divorce based on the grounds of adultery).   It was limited (based on the traditional view of marriage) to sexual intercourse between a married person and a person of the opposite gender.  But now the Court has re-defined adultery to include sexual acts between persons of the same sex.  However, the Court did not define “what sexual acts constitute adultery” and specifically stated that it was not necessary or desirable “to define what type of intimate sexual activity constitutes adultery”, and concluded that “the wrong…is something akin to violation of a marital bond.”

In P. (S.E.) v. P. (D.D.), the Court was asked to grant a divorce to a woman whose husband of 19 years admitted to having a sexual relationship with another man.  The case was argued by a lawyer well-known for representing parties in cases of interest to the homosexual community, and counsel for the Attorney of Canada.  The specific question was whether the homosexual affair fell within the definition of “adultery”, a fault-based ground for divorce.  It may be of interest to note that until 1985, the Divorce Act expressly provided that a homosexual act was a ground for granting a divorce.  Apparently the wife did not wish to wait to obtain a divorce under the “no-fault” provisions of the Divorce Act, which requires only that the parties live separate and apart for one year.

The recent redefinition of civil marriage to include same-sex relationships, and now the new legal scope of “adultery”, have created an opportunity to reflect on the tension between a Bible-based view of the meaning of marital infidelity and its secular counterpart.  The court noted that Mosaic law was the first known formulation of legal consequences of the sin or offence of adultery.  It was both an invasion of the marital rights of the husband or wife and a sin against God.  Although the courts have long grappled with the nature of the specific act that constitutes such an invasion, the legal limitation of marriage and adultery to male/female relationships supported the theory that marriage was a relationship characterized by emotional and economic interdependence.  The primary purposes of marriage were considered to be to procreate within in an unadulterated gene pool and provide an efficient social building block for a stable, “moral” society.  This secular view was not wholly inconsistent with the Biblical view of morality, although it did leave God and the spiritual consequences of adultery out of the analysis. This new legal definition of adultery affirms a brand new secular rationale for marriage. 

Marriage may now be viewed as primarily a social institution by which people express commitment and receive public recognition and support, leaving adultery as a form of ill-defined ‘breach of contract’ with consequences that seem to depend on the parties engaged.  This would appear to lead to elimination, or at least erosion (as evidenced by current media), of the concept of adultery as a basis for divorce or other legal consequences.  Among those practicing family law it is viewed that apart from the ability to obtain a divorce sooner, adultery is irrelevant to issues such as spousal support, division of assets, child custody, access or other consequences to the marital breakdown resulting from it.  In effect, the “morality” of adultery is largely illusory.  

Despite obvious concerns regarding the open-ended nature of what now constitutes adultery and its largely insignificant legal consequences, it may be too soon to conclude that the moral wrongdoing that is associated with the Biblical injunction against adultery is gone from our legal system for good.  On November 18, the Supreme Court of Canada will hear the case of Leskun v. Leskun.  In this case, the British Columbia Court of Appeal accepted a wife’s argument that her former husband’s adultery caused her so much emotional devastation that she was unable to work.  The fact that the misconduct of the husband grounded a weighty spousal support order is seen by some as nod of recognition to the “moral turpitude” that characterized Biblical adultery and earlier secular adultery.  The Supreme Court of Canada’s decision in Leskun is one to watch for: it will help us chart the direction of secular values reflected in family law as compared to Biblical doctrine about marital fidelity.

This article was written by Judith A. Janzen, a lawyer who practices in family law with the law firm of Kuhn LLP. It is only intended as a guide and cannot cover every situation. It is important to get legal advice for specific situations. If you have questions or comments about this case or other construction law matters, please contact us at 604-864-8877.