Duhaime's Law Dictionary


Physical Cruelty Definition:

Family law, grounds for divorce, cruelty which is physical in nature and which renders continued cohabitation intolerable.

Related Terms: Divorce, Cruelty, Mental Cruelty

In Thomson v Thomson, physical cruelty was advanced as grounds for divorce. It was granted on the facts before the Court of Appeals of South Carolina, Justice Hearn writing the opinion of the Court:

"Physical cruelty is actual personal violence, or such a course of physical treatment as endangers life, limb or health, and renders cohabitation unsafe. In considering what acts constitute physical cruelty, the court must consider the circumstances of the particular case."

In Gibson, Justice Goolby of the same court:

"If the wrongful act involves actual violence directed by one spouse at the other, bodily injury is not required in order to find physical cruelty. A single assault by one spouse upon the other spouse, then, can constitute a basis for a divorce on the ground of physical cruelty; however, the assault must be life threatening or it must be either indicative of an intention to do serious bodily harm or of such a degree as to raise a reasonable apprehension of great bodily harm in the future."

Canada's Divorce Act, at §8, provides that a divorce may be granted if one spouse:

"...treated the other spouse with physical (cruelty) or mental cruelty of such a kind as to render intolerable the continued cohabitation of the spouses."

In Chouinard, Justice Bridges of the New Brunswick Supreme Court, Appeals Division wrote:

"The court should not grant a decree of divorce on evidence of merely distasteful or irritating conduct on the part of the offending spouse. The word cruelty denotes excessive suffering, severity of pain, mercilessness; not mere displeasure, irritation, anger or dissatisfaction; furthermore, the Act requires that cruelty must be of such a kind as to render intolerable continued cohabitation."

In 1970, Justice Denicet of the Manitoba Court of Queen's Bench adopted these words in Ashraff v Ashraff:

"[M]ere incompatibility and a degree of marital unpleasantness is not enough....

"The respondent may have had little or even no intention to be cruel. But this will not alter a finding of treatment with physical or mental cruelty, etc., if such are the facts.

"The Divorce Act does not speak of guilt but of treatment. The intention of the respondent is not necessarily in issue. A person may be cruel to another without even realizing it....

"I think, for example, of cases in which there has been no physical or mental harm inflicted, and none is apprehended by either party, yet the ill treatment of one by the other, or of each by the other, has been such as to cause one or both to hate, loathe or despise the other so greatly that continued life together has become intolerable."

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