Does Cheating Affect Spousal Support in New Brunswick?

If your spouse had an affair, or behaved badly in other ways during the marriage, it is natural to wonder whether that should change who pays support after separation. Many people expect the answer to be yes. The law in this area works differently than most people assume.

This article explains what the federal Divorce Act says about misconduct and spousal support, what the court looks at instead, and how adultery fits into the divorce itself. In New Brunswick, these matters are heard in the Court of King's Bench, Family Division.

This article covers the law of New Brunswick.

The short answer: misconduct is not considered

When a court makes a spousal support order in a divorce proceeding, it shall not take into consideration any misconduct of a spouse in relation to the marriage. That includes an affair. The court does not use support to reward the spouse who was wronged or to punish the spouse who was unfaithful.

This is a rule about spousal support under the Divorce Act. It does not mean the behaviour was irrelevant to your feelings or to your decision to separate. It simply means the support calculation is built on other things.

A common mix-up: adultery and the divorce itself

Adultery does have a place in the Divorce Act, but it is in a different spot. The usual way to show the marriage has broken down is that the spouses have lived separate and apart for at least one year. A spouse can also establish breakdown without waiting a year if the other spouse has committed adultery or treated them with physical or mental cruelty that makes continued cohabitation intolerable.

So adultery can speed up how breakdown is proved for the divorce. It does not carry over into the support decision, where misconduct in relation to the marriage is not to be considered.

What the court looks at instead

In a divorce proceeding, the court may order a spouse to pay or secure spousal support. It considers the condition, means, needs and other circumstances of each spouse, including the length of time they cohabited and the functions each performed during cohabitation.

The order should also reflect several goals:

• Recognizing economic advantages or disadvantages to the spouses arising from the marriage or its breakdown.
• Relieving economic hardship arising from the breakdown.
• Promoting the economic self-sufficiency of each spouse within a reasonable period.

So the length of the relationship and the roles each spouse played are part of what the court considers, while misconduct is not. How these factors are weighed depends on your situation, so it is worth confirming with a lawyer.

What kinds of orders are possible

The Divorce Act gives the court a range of options. Support can be a lump sum or periodic payments, it can be interim or final, and it can be for a definite or indefinite period.

Behind these orders is a general duty. Under the New Brunswick Family Law Act, every spouse has an obligation to provide support for themselves and for their spouse, in accordance with need, to the extent capable of doing so. That duty can extend to common-law partners who have cohabited continuously for at least three years with one substantially dependent on the other, or who have cohabited in a relationship of some permanence and are the parents of a child.

Child support comes first

If an application is made for both child support and spousal support, the court shall give priority to child support. This can affect how much is available for spousal support, since the children's needs are dealt with first.

What to do next

If you are wondering how an affair or other conduct affects your situation, it helps to focus on the facts the court actually weighs.

• Write down the length of the relationship and when you separated.
• Gather income records for both spouses, such as tax returns.
• Note who stayed home, reduced hours or gave up career opportunities during the marriage.
• List your monthly needs and any debts.
• Keep records of any child support or parenting arrangements already in place.
• Speak with a lawyer about how support might apply to you, especially if there is a separation agreement involved.

Every case turns on its own facts, so a lawyer can confirm how these rules apply to your circumstances.

Frequently asked questions