In Canada, a Divorce on the basis of "breakdown of a marriage" cannot be granted until at least one year has passed from the date the spouses 
separated.
Under Section 8 (2) (b) of the Divorce Act, however, a Divorce for grounds, such as adultery or cruelty, may be granted immediately, before the one year wait-period has elapsed.
In September 2005, I wrote about a case in which the British Columbia Supreme Court expanded the traditional, legal definition of adultery to include extramartital same-sex relations. Previously, adultery had been interpreted as being restricted to extra-marital relations between parties of opposite genders.
Another case, reported by CTV Newsnet today, shows the same conclusions being reached in New Brunswick.
I think we can consider this issue as settled, at this point.
N.B. court allows divorce over same-sex adultery
Updated Sun. Apr. 30
2006 12:40 AM ET
CTV.ca News Staff
A court has granted a New Brunswick man a divorce because his wife committed same-sex adultery.
"It's going to help somebody else not to have to go through this," Pascal Thebeau of Saint John said outside court on Friday.
"If it would have been the opposite sex, I would have had my divorce last year."
Adultery isn't defined in legislation, and under the common law, it's traditionally been considered to be extramarital sex between a man and a woman. Thebeau then went to court to have a broader definition recognized in New Brunswick. A judge agreed, noting that since gays and lesbians can marry, the law should treat them equally when it comes to adultery.
"Equal treatment before the law endows rights. What is sometimes overlooked is that it also imposes responsibilities. Equal treatment means equal obligations, equal responsibilities, and the acceptance of equal consequences," Madam Justice Anne D. Wooder wrote in her judgment.
The ruling doesn't break completely new national legal ground. A similar ruling in B.C. last year involved a woman whose husband had an affair with another man.
Gay and lesbian groups say a broader definition of adultery is welcome. "The gay community is getting divorces too," said Mack MacKenzie, a gay rights activist.
With a report from CTV's John Vennavally
- Garry J. Wise, TorontoVisit the WISE LAW OFFICE website: www.wiselaw.net
1 comment:
There is a fundamental problem with treating same-sex sexual behavior as adutlerous.
Injurious to a marriage -- ie the union of husband and wife -- certainly, for reasons that go back to the two-sexed sexual basis of the marital relationship itself.
But, assuming that sexual basis is no longer applicable, then, what possible reasoning would treat "adultery" as sexual conduct? It cannot be hurt feelings, for there are other "feelings" grounds for divorce apart from sexual conduct. Besides, what is the public interest in private feelings -- hurt or not?
If it is not sexual, then, adultery becomes so ambiguous as to become meaningless in the marital context. Holding hands can be sexual; as can kisses or longing gazes and so forth. If the "sexual" aspect is reduced to a feeling, then, "adultery" becomes a redundant notion.
What is the sound reasoning for treating same-sex sexual conduct as "adulterous" -- or as any form of sexual conduct as adulterous even in the husband-wife context, in the aftermath of enacting same-sex marriage as the legal equivalent of the union of husband and wife?
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