Georgina Chapman, recently announced that she has chosen to leave her husband, Harvey Weinstein, following the sexual harassment and assault allegations against him. Chapman and Weinstein have been married since 2007 and have two young children together.
In Ontario, Chapman could bring an application for divorce due to Weinstein's infidelity.
The Divorce Act governs the process by which a married couple may legally end their marriage upon the breakdown of the relationship. Upon the dissolution of the marriage, either spouse, or both, may bring an application for divorce under section 8(1) of the Divorce Act.
Section 8(2) of the Divorce Act lists three grounds for divorce:
- Living Separate and Apart for One Year;
- Adultery;
- Cruelty.
Adultery is defined as voluntary sexual relations between a married person and a person other than his/her spouse. According to section 8(2)(b)(i) of the Divorce Act, only the spouse who has been cheated on, may seek a divorce on the grounds of adultery. That is, the cheating spouse may not use his/her own infidelity as a grounds for divorce. If the applicant successfully satisfies the Court that his/her spouse committed acts of adultery, the Court may immediately grant a divorce – there is no waiting period.
The party seeking a divorce on the grounds of adultery must prove to the Court on a balance of probabilities that their adulterous spouse has had:
- The opportunity to engage in adulterous activity; and
- Proof of an inclination to commit adultery.
Notably, it is extremely difficult to prove adultery to the Court as the evidence is almost always circumstantial.