You found out that your spouse has been on the Ashley Madison website. Your spouse has betrayed your trust, he/she has lied and cheated behind your back leaving you hurt, angry and confused. Your safe zone –your spouse – your family– is no longer there to support you and maybe he or she never has been. Now what?
In one version of the ancient Greek Myth, Hephaestus, the Olympian god of fire and the husband of Aphrodite, the goddess of love and beauty and a representation of all beautiful women, grappled with the same situation when he discovered that his wife was cheating on him with Ares, the god of war. Hephaestus decided to take justice into his own hands and created an unbreakable net to trap the two lovers while they were in bed together. Only once Hephaestus received financial compensation from Ares were the two lovers released from the trap.
Like for Hephaestus, the news of a partner’s marital misconduct is certain to come as a blow to you and your children, undermining your family’s sense of security and threatening its survival. In fact, your partner’s unconscionable conduct may have even contributed to the depletion of the family assets accumulated during your marriage.
Whatever you do, do not give up.
In a recent Court of Appeal decision in Frick v. Frick, 2016 ONCA 799, the court once again highlights a well-established principle that spending on an extra marital affair does not, in and of itself, lead to an unequal division of the family assets. So, unlike Hephaestus, you would be unlikely to receive compensation solely for the fact that your spouse cheated on you. But, if your spouse depleted the family assets or diverted income from the family for the affair that could have been put towards debt repayment, then you may receive financial compensation in the form of an unequal division of your family assets.
Geared with the appropriate information, you can regain control of your family finances.
Thus, gear yourself for a battle, but be smart about how you attack. Do not let your misunderstanding of the law fail you in court.
Remember, you deserve a fair resolution of your case and just because your partner failed you in marriage does not mean that your family must fail too. You can regain control of your family by empowering yourself with information that will help you advance your family’s financial security.
Here are some tools to help you through and what you need to know when making a successful claim for unequal division of the family’s accumulated assets:
(1) In making a claim for unequal division of family assets, it is important to keep in mind that it is the financial impact of the conduct rather than the conduct itself that is relevant when making a claim.
As such, you should always take a step back and assess the information you have about your spouse’s misconduct. Consider how such conduct may have contributed to the depletion of your family’s finances (e.g., did the partner’s spending on his/her extra marital relationship drain your family’s accumulated assets? Did your spouse use savings or credit cards or perhaps he or she used the cash from a cash business? Did he/she incur debts against the family property as a result of the marital misconduct?
(2) Moreover, you can claim an unequal division of family assets even when you do not have all of your spouse’s financial records to prove the financial loss. Do not be discouraged from making this claim just because you do not have all the information now. Chances are that you will get it as your case progresses. In fact, this is precisely why the family law rules provide stringent financial disclosure obligations, entitling the parties to find out the details of the other’s circumstances.
(3) For your claim to succeed on the grounds of marital infidelity, it must first overcome a high threshold set out by the courts. In other words, in order to advance your claim, you must first show that your partner’s misconduct negatively contributed to the family’s debts, liabilities and property and that the disregard of this would result in an unjust equalization payment.
Avoid giving your partner the opportunity to challenge your claim. Focus on your family’s economic survival through unequal division of family property.
(4) Lastly, a claim for unequal division of family property is not a separate cause of action and does not have to be specifically plead if everyone is aware that the court will be asked to vary the equalization payment. As such, if your matter is already underway and you have not made a claim for unequal division of property, you will still be able to seek unequal division if the other party is aware of your intent. More importantly, the court may also grant your claim if the equalization payment would be unconscionable.
It is interesting to note that Hephaestus sought financial compensation from Ares but not from Aphrodite.
Let’s take it in the modern context, what about a situation where both parties are in debt and as a result no equalization payment is owed? Can the wronged spouse seek compensation from their spouse’s lover? Should the seductress pay for the infidelity?
BLOG ENTRY BY – Diana Morokhovets and Inna Tsinman
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