Cheaters, beware

by Brenda Cossman

This commentary was first published in the National Post on June 24, 2006.

Adultery is back. It's not that it ever really went away. But in the aftermath of the no-fault divorce revolution, it faded from legal relevance. Folks got married, after a dozen or so years, had affairs, got divorced and remarried. Adultery was no longer an irredeemable sin but a step on the road to serial monogamy.

In recent years, anxiety over adultery has made a comeback. From self-help books to Dr. Phil shows, Hollywood movies to television serials, popular culture is filled with morality tales about the costs of infidelity. The message is a simple one: Don't do it. The risk of infidelity is everywhere, and couples must work to protect their marriages. Because if they don't, if they give in to the temptation of infidelity, they will unleash an almost unstoppable wave of relationship destruction. They will become a divorce statistic.

The Supreme Court of Canada has joined the fray. In its recent ruling, the Court held that Sherry Leskun should continue to receive spousal support payments from her cheating ex-husband because she was too emotionally devastated by his conduct to return to work.

The Court said that the 1985 Divorce Act eliminated misconduct as a relevant consideration in spousal support. It insisted that misconduct not be allowed to "creep back in." But the Court also said that there is a difference between misconduct and the emotional consequences of that misconduct. In its view, these consequences might be relevant to a spouse's ability to become self-sufficient.

In other words, spousal misconduct is not relevant -- unless it is.

On one hand, this is not a far cry from what courts already do. They have taken spousal abuse into account in making support orders, noting that it can affect a person's ability to become self-sufficient. In Leskun, the Court is just extending the same reasoning to other forms of spousal misconduct like adultery.

Or is it?

Adultery has a particularly notorious history in family law. At one time, it was the only ground for divorce, which was based on a model of retributive justice: punishing the guilty and rewarding the innocent. If a husband cheated, he was punished by paying support. If a wife cheated, she was punished by being denied support.

The no-fault divorce revolution tried to break the hold of adultery. Divorce became available on the basis of relationship breakdown (although adultery was retained as a ground for divorce). Spousal support was to be based on need, not conduct. Adultery -- by either spouse -- was no longer to be the basis for awarding or denying spousal support.

But adultery just won't go away. Folks keep doing it. And while most divorces are now granted on no-fault grounds, adultery remains a cause celebre, often cited as the reason that the couple divorced, even if it is not relied upon as the ground. Increasingly, it is being blamed for the high divorce rate. According to a number of self-described "infidelity experts," adultery is on the rise (although statistics in this area are notoriously unreliable). There are new kinds of it (Internet infidelity, workplace infidelity, even emotional infidelity -- the kind that doesn't even require sex) and more folks who practice it (according to the experts, married women are now committing it in droves).

All of this adds up to an intensified anxiety about infidelity and a new cultural obsession with preventing it. For the most part, this has occurred outside of the law.

All that changed with the Supreme Court ruling this week. Adultery just reappeared on the legal radar screen. Now, a divorcing spouse can argue that they were so emotionally devastated by their spouse's infidelity that they simply cannot work.

The Supreme Court ruling fits all too well with the morality tales of the new infidelity. It's another missive in the "just say no" arsenal: Not only will you destroy your marriage, but you will have to pay, maybe for a very long time. It's one thing for the infidelity experts to tell folks not to head down the infidelity road. It's altogether different for the law to punish spouses who do. That's about the return of retribution. That's about the law deciding that the cheater should not just get away with destroying their spouse's life; he (or she) should have to pay.

Family law got out of the fault business because it was too ugly and too difficult to prove who did what to whom. In the aftermath of the Supreme Court ruling, it has been invited right back into this heart of darkness. Adultery and retribution are marching back, hand in hand, from legal exile.