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Can you get a divorce if your husband has an affair with another man?

By: Steven Benmor, B.Sc., LL.B., Family Lawyer

Jurisdiction: Ontario (Canada)

Can you get a divorce if your husband has an affair with another man? Historically, the answer to this question was “No”. Because Canadian federal law only permitted a spouse to obtain a divorce if the other spouse had an extramarital affair with someone of the opposite sex.

Indeed, Canada’s Divorce Act states that a “breakdown of a marriage is established only if the spouses have lived separate and apart for at least one year or the spouse against whom the divorce proceeding is brought has committed adultery or treated the other spouse with physical or mental cruelty”.

Adultery has historically been defined by the courts as voluntary sex between a spouse and someone of the opposite sex, outside of the marriage.

But this week, a Vancouver woman was granted a divorce after Justice Nicole Garson decided the woman’s husband had committed adultery by having an affair with another man.

It is expected that this decision may have a significant impact on same-sex partners whom are likely to engage in extramarital affairs with persons of the same gender, if they engage in adulterous affairs at all.

The court’s written decision is expected to be published in two weeks.

Steven Benmor

About the author: Steven Benmor practices Family Law in Toronto, Ontario, Canada. Visit Steven Benmor’s online Family Law Resource Center for concise answers to many more frequently asked Family law questions, feature articles on Family law topics, dozens of links to other Family law websites, and more at The information on this page is for discussion purposes only. It is by no means legal advice or even a statement of the law on this subject. Please do not rely on the accuracy or completeness of this information. Any question or concern elicited by the information on this page should be taken to a lawyer who will consider the facts of each case and the legal remedies available.