Adultry - Definitions and Legal Constructs

Definitions and Legal Constructs

In the traditional English common law, adultery was a felony. Although the legal definition of "adultery" differs in nearly every legal system, the common theme is sexual relations outside of marriage, in one form or another.

Adultery involving a married woman and a man other than her husband was considered a very serious crime; in 1707, English Lord Chief Justice John Holt stated that a man having sexual relations with another man's wife was "the highest invasion of property" and claimed, in regard to the aggrieved husband, that "a man cannot receive a higher provocation".

Legal definitions of adultery vary. For example, New York defines an adulterer as a person who "engages in sexual intercourse with another person at a time when he has a living spouse, or the other person has a living spouse." North Carolina defines adultery as occurring when any man and woman "lewdly and lasciviously associate, bed, and cohabit together." Minnesota law provides: "when a married woman has sexual intercourse with a man other than her husband, whether married or not, both are guilty of adultery." As recently as 2001, Virginia prosecuted an attorney, John R. Bushey of Luray, for adultery, a case that ended in a guilty plea and a $125 fine. Adultery is against the governing law of the U.S. military.

In common-law countries, adultery was also known as "criminal conversation". This became the name of the civil tort arising from adultery, being based upon compensation for the other spouse's injury. Criminal conversation was usually referred to by lawyers as "crim. con.", and was abolished in England in 1857, and the Republic of Ireland in 1976. Another tort, alienation of affection, arises when one spouse deserts the other for a third person. This act was also known as desertion, which was often a crime as well. A small number of jurisdictions still allow suits for criminal conversation and/or alienation of affection. Because of its abuse, at least one jurisdiction (Nevada) has abolished the tort of alienation of affection and has made it a misdemeanor crime to file such a lawsuit.

A marriage in which both spouses agree ahead of time to accept sexual relations by either partner with others is sometimes referred to as an open marriage or the swinging lifestyle. Both are a form of non-monogamy, and the spouses would not view the sexual relations as adultery, although it could still be considered a crime in some legal jurisdictions.

In Canada, though the written definition in the Divorce Act refers to extramarital relations with someone of the opposite sex, a British Columbia judge used the Civil Marriage Act in a 2005 case to grant a woman a divorce from her husband who had cheated on her with another man, which the judge felt was equal reasoning to dissolve the union.