Increasingly, adultery 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).
It started as a popular culture phenomenon. From self help books to Dr. Phil shows, Hollywood movies like Closer and Little Children, to television serials like Desperate Housewives, 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.
It adds up to an intensified anxiety over adultery, as a practice better avoided by those who wish to stay married, and as a practice increasingly worthy of moral sanction.
Until recently, most of this has happened outside of law. But, in Leskun, the Supreme Court of Canada has joined the fray, holding 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 emphasized that this was not a return to the bad old days of fault creeping back into the Divorce Act. Yet, it nevertheless saw fit to talk about the emotional consequences of the adultery. It could have just awarded Sherry Leskun compensatory or non-compensatory support, both of which would have been supported on the facts. It didn’t. Instead, it talked about adultery.
The Supreme Court ruling fits all too well with the morality tales of the new infidelity. It’s bad. Don’t do it. And if you do, you may have to pay. It will not only cost you your marriage. But, it will actually cost you support.
Leanne Domi then took a page right out of the new play book. She named Belinda Stronach, a high profile celebrity politician, as the other woman in her divorce application against her high profile celebrity hockey player husband. It bought her front page coverage, and presumably, enough notoriety to make Tie want to do what ever he could to get it out of the press fast. (According to press reports, the couple quickly reached a temporary agreement, and subsequently agreed to private arbitration to resolve their outstanding issues)
All of this is more than a little worrisome. Family law has more than enough to worry about trying to restructure financial relationships and restructure parenting relationships, with barely enough money to go around. It doesn’t need a return to vengeance and moral outrage to further muddy the waters. Yet, as anxiety about adultery grows, it will not be surprising if more family law clients walk through their lawyer’s door with an appetite for vengeance. As they read about the Sherry Leskuns and Leanne Domis, and the fictional characters in Desperate Housewives and Little Children, they will want their adulterous spouses to pay – morally and financially – for what they have done. And family lawyers will either have to spend more time and energy than they already do persuading their clients that there is simply no upside to this avenue. Or they will try to find an upside.
None of this is pretty. Family law got out of the fault business because it was too ugly, too difficult and too expensive to prove who did what to whom. But, as adultery and a desire for retribution have become central preoccupations of popular culture, it is not surprising that the reverberations are spilling over, back into family law, right where they don’t belong.
This article orginally appeared in The Lawyer's Weekly.
