Gay Adultery Exclusion Overturned In Divorce Case

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Gay Adultery Exclusion Overturned In Divorce Case

by Camille Bains, Canadian Press

Posted: August 30, 2005 8:30 pm ET

(Vancouver, British Columbia) A Vancouver woman was granted a divorce Tuesday after a B.C. Supreme Court judge decided the woman's husband had indeed engaged in an adulterous affair with another man, despite the current definition of adultery involving people of the opposite sex.

Justice Nicole Garson said she had been persuaded that she had the authority to make a change in the definition of adultery.

The traditional definition of adultery, developed through the courts, is voluntary sex between a spouse and someone of the opposite gender, to whom the person is not married.

Garson also granted the Justice Department's request to ban publication of the couple's name and referred to the case as P. versus P.

Christian Girouard, spokesman for the federal government, said the department had intervener status in the case to ensure the Divorce Act would be interpreted consistent with the Charter of Rights and Freedoms to reflect same-sex marriage legislation.

``In this case the court was being asked to rule on whether adultery also includes sexual behavior with a person of the same sex,'' Girouard said.

The judge's decision is expected to have far-reaching consequences across the country because of the increasing number of same-sex marriages that will inevitably lead to same-sex affairs, said Barbara Findlay, the woman's lawyer, who spells her name all lower-case letters.

``We argued, and the federal government agreed with us, that the court can make what is called in law an incremental change in light of current circumstances so that divorce will, from now on, be understood to be available where there is, for example, intimate genital contact between two people, one of whom is married,'' Findlay said.

Because adultery is not defined through federal legislation, judges hearing similar cases in other provinces will no doubt be persuaded by Garson's decision, she said.

And there are bound to be plenty of court hearings in other jurisdictions involving similar circumstances.

``It's likely to happen a lot because same-sex partners are predictably more likely to have affairs with other people of the same gender than with people of the opposite gender,'' Findlay said.

``It's going to be important for lesbian and gay men whose partners commit infidelity to enable them to get divorced immediately instead of having to wait a year.''

She also launched a constitutional challenge based on the Charter, saying the definition of adultery discriminates against gay and lesbian couples because it makes divorce less accessible to them compared to gays.

She said her 44-year-old client had been married for almost 17 years.

The woman filed for divorce after she discovered last October that her husband was having an affair with a man.

Garson was concerned that she did not have jurisdiction to grant a divorce and in February requested that the woman hire a lawyer to argue why the definition of adultery should include same-sex affairs.

The judge's written decision is expected to be released in two weeks.

©Canadian Press 2005

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