Canada Legal .com Articles

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

Jurisdiction: Ontario (Canada)

In the California case of Diosdado v. Diosdado, 118 Cal. Rptr. 2d 494 (Ct. App. 2002), a couple signed an agreement after the husband had an extramarital affair. The agreement banned each spouse from engaging in extramarital sexual conduct and, specifically, stated that one spouses infidelity could cause the other spouse serious emotional, physical and financial injury. The agreement included a clause that stated that the spouse who committed adultery was required to pay to the other spouse $50,000 in liquidated damages irrespective of any other property settlement resulting from a divorce proceeding.

When the husband committed adultery, the wife asked the court to enforce this clause. Both the trial court and the California appellate court found for the husband and ruled that the clause vi­olated state public policy. It held that the legislature had made a social policy based decision to change the grounds for divorce from a fault ba­sis to a marriage breakdown basis. Consequently, the court said, fault is generally not a relevant consideration in the legal process of divorce. Further, recovery in divorce cas­es is basically limited to half the community property, ap­propriate support and legal fees - with no premiums for emotional pain. The court said that the agreement here violated this policy by imposing such a premium for the emotional angst the husband’s infidelity had caused his wife. Moreover, the agreement contravened public policy by attempting to penalize one of the parties as a result of his conduct during the marriage… only in California.

This entry was posted on Monday, November 7th, 2005 at 12:50 am and is filed under Family Law. You can follow any responses to this entry through the RSS 2.0 feed. Both comments and pings are currently closed.