Horvath+v.+Fraess

//(1997 Saskatchewan Court of Queen’s Bench – Family law division)//
 * __Horvath v. Fraess__**

Couple married in 1994 and immediately started having problems. It was a rocky relationship all along. They had one child. They’ve been living separately, but not for a full year. The wife alleges that the husband has used physical force during several arguments. The wife admits to an extramarital affair. Both are seeking divorce. However, the husband is seeking divorce based on the adultery of the wife. The wife is seeking divorce based on cruelty of the husband. Divorce granted on the basis of adultery on the part of the wife. They cannot appeal to the “separate and apart” ground for divorce under s. 8(2)(a) of the Divorce Act because they haven’t been apart for more than a year. Thus one or both of the “fault” grounds must be proved. Both adultery and cruelty are “fault” grounds for divorce: s. 8(2)(b)(i) and s. 8(2)b(ii) of the Divorce Act, respectively. Judge seems to randomly choose adultery as the basis, saying “it was not necessary to decide the issue of cruelty”. Note that the adultery was admitted, whereas the severity of the violent acts was contested by the husband. Judge finds that adultery argument is stronger and sufficient for the divorce, and thus simply discards the cruelty argument, saying it’s unnecessary to rule on it.
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 * Reasoning**