Cheaters watch out. If you get married, infidelity may now cost you big time.
Last month the Supreme Court Of Canada decided a spousal support case called Leskun Versus Leskun, which might make gay and lesbian folks think twice about marriage and all its baggage.
The court said that a woman who was totally devastated by her husband’s adultery could continue to receive spousal support, even though Canada’s no-fault divorce regime suggested otherwise. Fault, it seems, has been brought back into the system.
In the old days, divorce was all about misconduct, particularly adultery. If one spouse committed adultery, the other spouse could divorce them. Innocent spouses were rewarded and guilty spouses were punished. If a husband cheated, he was punished by paying support. If a wife cheated, she was punished by being denied support.
The divorce laws were changed in the 1960s and again in the 1980s to eliminate the relevance of fault, making support more an issue of need. The law specifically says that the court should not take misconduct into account in making an order for spousal support.
Then along come the Leskuns. Mrs Leskun’s life fell apart when her husband told her he’d had an affair and was leaving her. But her life was falling apart in a lot of other ways, too: she had just lost her job, she had a debilitating back injury and several members of her family died. Mrs Leskun seized on the divorce, and obsessively made it her life project.
She definitely had a claim to spousal support. She had spent her whole marriage subsuming her career to that of her husband’s. She was in her 50s, and her chance of becoming self-sufficient again was not so great. That’s more than enough in Canadian law to qualify for support.
But she wanted more. She argued that she should not have to become self-sufficient because of what her husband did to her. She was so devastated by his adultery that she simply could not work.
The Supreme Court agreed — sort of. They said that there was a big difference between misconduct itself and the emotional consequences of misconduct. Fault can never be taken into account. But the emotional consequences of fault, well, that’s another story. That might be relevant to a person’s ability to become self-sufficient.
What does all this mean? It depends, of course, on who you ask. Some family-law lawyers insist that it’s business as usual, that fault and adultery are still not part of the divorce equation, since Mrs Leskun was entitled to support regardless.
I beg to differ. I think that the decision is all about the return of adultery.
Admittedly, sex outside marriage never went away. But anxiety over adultery is on the rise.
From self-help books to Dr Phil, Hollywood movies to television dramas like Desperate Housewives, popular culture is once again obsessed with the costs of adultery. The message is: don’t do it. Because if you do, you will destroy your relationship and likely end up in a divorce.
The Supreme Court has just given this cultural obsession with extramarital sex a seal of approval, bringing it back on the legal radar screen. Now, a divorcing spouse can argue that he or she was so emotionally devastated by their spouse’s adultery that they can never work again.
People who thought that same-sex marriage was going to change the norms and values of marriage, make it more flexible — forget it. Above all, marriage is all about monogamy. It’s not that its participants practice it. Obviously they don’t. But the Supreme Court has upheld that its violation is an action that has serious consequences: Divorce and stiff support payments.
Gay and lesbian people who have sex outside their marriages with no negative consequences are going to be caught in this war against adultery.
When gay and lesbian folks get married, they are not signing on to a relationship that they can define as they see fit. They are signing on to an institution that is at its core monogamous.
One partner is free to ignore the infidelity of the other (wives have been doing that throughout history). But if they don’t, the norms of marital monogamy will come crashing down. Moral condemnation, divorce and now, spousal support.
In fairness, there may be some limits. In order to get support on this basis, cheated-upon spouses will have to prove they really were emotionally devastated by their spouses’ conduct. A spouse who has for years tolerated, encouraged or participated in extracurricular sexual activities may have a hard time arguing that suddenly, they are devastated by the same act.
But what if the couple had rules: no kissing on the lips, no sex with the same person twice? Then one of them breaks the rules, the other one freaks out.
The possibility of ongoing support payments certainly creates an incentive for spouses to freak out over extramartial sex. How a court would deal with an adultery claim from a person in a nonmonogamous relationship? It might wipe its hands in disgust. Or it might decide that the “innocent” party was totally devastated by the sordid affair and order support.
Who knows? But what we do know is that marriage continues to come with a lot of baggage. Gay and lesbian folks who get married need to know this. Officialdom might recognize their relationships, but it may not recognize all the agreements and subtleties. Straight folks know this. Just ask Mr Leskun.