The definition of adultery within the context of divorce law has evolved over the past several decades to address more that voluntary sexual intercourse between a married person and a member of the opposite sex other than that person’s spouse. Indeed, for quite some time in our legal history, adultery was defined specifically as pertaining to the act of sexual intercourse between a man and a married woman only. Fortunately, married men were eventually held equally accountable in the eyes of the law for acts of sexual intercourse outside the confines of marriage, but it only has been relatively recently that courts have expanded the definition of adultery to include a much broader spectrum of intimate extramarital sexual acts. Here’s a look at how adultery has been redefined within the courts over the past 50 years.
Expanding Definitions of Adultery
Courts first began to expand the definition of adultery by including acts of heterosexual oral sex, with several significant decisions coming down in the late 1970s to mid 1980s that cited these as adulterous acts. This, in turn, eventually led to courts opening up to the consideration of other heterosexual sexual acts as constituting adultery. Other extramarital acts that were cited as being sufficient evidence of adultery included a wife’s act of intimately touching a lover’s genitals, a husband’s attempt at copulation that was derailed due to impotence, and a couple lying together naked in bed.
The Question of Homosexuality
Another element in the adultery question had to do with the question of whether homosexual acts in fact constitute adultery. Decisions in the 1950s and 1960s unequivocally asserted that homosexual sex could not constitute adultery, so that if a divorce claim was predicated on the grounds of adultery due to a wife’s lesbian relationship, that count was typically dismissed at trial. As with the expansion of adultery to include a wider variety of sexual acts, toward the end of the 1970s courts began to shift their stance in this area as well. A notable case in this progression was “Patin v. Patin” 371 So. 2d 682 (Fla. 4th Dist. Ct. App. 1979), wherein the court stated that the wife’s homosexual relationship was an instance of adultery and could in fact have an impact on the alimony award. By the early 1980s, several decisions were coming down that defined adultery as sexual intercourse with another person outside the marriage, regardless of gender.
Over the past 15 years, the courts have begun to to explain their expanding definitions of adultery in greater detail. Many courts have stated that extramarital sexual activity constitutes adultery regardless of whether it is of a homosexual or heterosexual nature. Taking this even further, courts in many states, rather than getting hung up on defining specifics of extramarital sexual activity, have come to conclude that it is the rejection of the spouse coupled with the sexual actions that, in fact, constitute the adulterous act—regardless of the gender of the partner or the specific sexual act.
Although courts within certain jurisdictions continue to grapple with how to legally define an act of adultery, the trend has certainly been toward a more expansive definition. Many courts have come to conclude that, in the end, adultery is about a purposeful breaking of the marriage vows, no matter the partner or the sexual act.
: adultery, divorce law, adulterous act, definitions of adultery