Joint Applications for Divorce and Adultery

The case of Niyazov v. Tkatch is one of extreme importance to those filing a joint application for divorce.

Although a court can grant a divorce based on the fact that one of the parties committed adultery, that only applies in uncontested divorce applications. However, when the parties file a joint application for divorce, if one of which committed adultery, the joint application will not be granted.

Justice McGee explained in Niyazov v. Tkatch that  a party may not file for divorce on the basis that he/she committed adultery due to the court’s duty to uphold the sanctity of marriage. As Justice McGee stated:

"The institution of marriage requires special protection. It is not merely the private concern of the parties, and although such sentiment may [ . . . ] at first glance strike the reader as antiquated, it remains alive and well within the present day preamble of the Family Law Act…….. The jurisdiction of the Court in divorce matters differs from that in other ligation adventures. The Court is vested with a peculiar duty of protecting the sanctity of marriage and the family in the exercise of its responsibilities, insofar as it can. I find that the relevant sections of both the Divorce Act and the Family Law Act operate to prevent a co-application from seeking an order for divorce based on adultery. Section 8(2)(ii) of the Divorce Act states that a divorce based on adultery can only be brought by the innocent spouse against the party that itself committed the adultery, and not by the guilty spouse. In a joint-application, the guilty party would be one of the co-applicants bringing the application, which is not permitted under s.8(2)(ii).”

To learn more about joint applications for divorce as well as the services provided by Krol & Krol, call 905.707.3370 today.