This week, I have been thinking about adultery. Not committing it, you understand, just thinking about the nature of it.
I sent out a media release regarding Jersey’s consultation on equal marriage and Liberate‘s support for the work that the Chief Minister’s department has done on it. As well as the obvious questions about same-sex marriage, the document included two minor sections on opening up civil partnerships to opposite-sex couples and removing or redefining adultery within law, both in the interests of equality.
At present, Jersey law (and UK law) state that adultery can only occur between a man and a woman. In practice what this means is that where one partner in an opposite-sex marriage has an affair with a member of the same sex adultery cannot be cited as grounds for divorce. Also, there is no provision within law for same-sex civil partnerships to be dissolved on the grounds of adultery. Clearly, if you are going to legislate for equal marriage this needs sorting out because a) it unfairly singles out opposite-sex couples for a penalty under the law and b) it suggests that the sexual congress of same-sex couples is somehow not as important as that of opposite-sex couples.
The media, however, had not spotted that this was included in the consultation and, as a result, my phone was red hot with questions from the press as to what this bit of the consultation was talking about, which got me thinking.
Liberate supports the removal of adultery from the law altogether. This is not because of the inability to define sexual congress between same-sex couples, or even the complexity that a redefinition would add to the law draughtman’s job, but because it is a relic of a bygone age that is no longer required.
Before anyone suggests that removing adultery is just the excuse to bed-hop that the LGBTQ community have been looking for, Liberate absolutely recognises the emotional harm and devastation that extra-marital affairs wreak on partnerships and are not suggesting the removal of adultery in order to make promiscuity easier. Even after removing adultery, marriages that end in one party having an affair can still be dissolved by stating “unreasonable behaviour” as the cause, thus protecting the injured party and enabling them to leave the marriage.
1. It is questionable as to whether singling out adultery as a legal cause for divorce has any effect as a deterrent to infidelity anyway. When citing adultery as a reason for divorce, an adulterous affair has to have taken place and the petitioner has to state that they now find it intolerable to live with the respondent. In other words, there is nothing to stop non-monogamous people who want an open marriage committing adultery. Adultery in and of itself is not grounds for divorce.
2. The meaning of adultery within law is specific. It has to be sexual intercourse. Other forms of sexual congress do not count as adultery, although many would consider infidelity occurs when their partner flirts with, kisses or even thinks about another person. In the age of Internet sex, adultery cannot be cited when someone engages in online sexual behaviour but any divorce court would consider that unreasonable behaviour within a marriage. Thus, leaving adultery as a cause redundant.
3. Removing adultery as a cause for divorce is a step towards no-fault divorces in which the couple do not have to show wrong doing by either party. No-fault divorces have been shown to be less acrimonious, less protracted and less expensive. They also remove the court/lawmakers from deciding what constitutes grounds for divorce as no grounds are needed. Since every marriage is different, why should those outside of that marriage judge what is or is not acceptable behaviour within that marriage? Further, no-fault divorces make it easier for a partner who is being mentally abused to divorce as they do not have to articulate why they wish to leave their abuser, something that abused people struggle to do.
4. Adultery was originally a punishable crime in British common law until 1857 (the introduction of the Matrimonial Causes Act made it grounds for divorce) and still is in many parts of the world. The crime of adultery stems from the desire of the husband to be certain that the child he is providing for is his own and not another man’s. The threat of criminal prosecution for an adulterous liaison by the woman, therefore, acted as a legal chastity belt in an age when paternity tests were not possible.
It also harks back to an age when women were considered the property of men and that to take a man’s wife was tantamount to stealing from him. Unfortunately, it is rare that the lover is blamed for the crime. More often, the wife is blamed by the husband because she has cuckolded him. It is telling that other reasons a couple might divorce, such as domestic abuse or rape within marriage (legal in England until 1991) that are most usually perpetrated against women, are not singled out as causes for divorce in the way that adultery is. Adultery laws were, and continue to be, influenced by patriarchal religions that place disproportionate emphasis on male privilege at the expense of protecting women from violence, in this sense they are a state sanctioned way for men to perpetrate violence towards women.
As an illustration of how biased adultery laws are in favour of men, in the UK, it was not until 1937 that a woman could divorce a man on the grounds of adultery alone. He had always been able to do so.
Adultery within the marriage law is a hangover from a repressive era in which adultery was a crime and women were treated unequally. For this reason alone, it is time it was removed.