Now that we’ve “Redefined Marriage,” will we Need to Redefine Adultery? The Answer is Maybe?

What ever you want to call it, same-sex marriage, gay marriage, marriage equality, one thing will remain the same, there will be divorce.  But when it comes time to go our LGBT separate ways, will there be the same legal battle and options that straight married couples would have when divorce is the only solution? 

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What are the reasons people seek a divorce?  In all polls seen about the reasons for divorce, adultery / cheating is always the main category.  What is interesting is that only 20 states classify adultery as an illegal act.  (Idaho, Utah, Arizona, Kansas, Oklahoma, Minnesota, Wisconsin, Illinois, Michigan, Mississippi, Alabama, Georgia, Florida, North Carolina, South Carolina, Virginia, Massachusetts, New York, Maryland, Rhode Island). – divorcefamilylaw.com

What may be confusing is the definition of adultery.  Here is a case from the UK.

Anna and her husband were married for 20 years before she discovered he was having 10 different sexual relationships with men. He denied everything, but the pictures and jokes she found on his phone left her in no doubt about what was going on.

When she contacted a lawyer to obtain a divorce, she assumed there would be two grounds open to her – adultery or unreasonable behaviour. Instead, she was surprised to find adultery was not an option.

This was because her husband had sex with other men and not with a woman. In the UK, adultery can only occur between members of the opposite sex and must involve vaginal intercourse.

She opted to divorce him on the grounds of unreasonable behaviour and it made no difference to the financial settlement. But she says she is among a minority of people in her situation who "care hugely about the betrayal and want to know that somebody somewhere has recognised that". She is part of a support group with other spouses in a similar position.

Case law defines adultery as "voluntary sexual intercourse between a man and a woman who are not married to each other but one or both of whom is or are married," says Jonathan West, head of family and marriage law at Prolegal. "Sexual intercourse must involve penetration of the woman's vagina by the man's penis, however slight."

[In the UK,] same-sex couples can either marry under the the 2013 legislation or opt for a civil partnership. In civil partnerships there is no ground for adultery whatsoever. Adultery can be grounds for divorce in same-sex marriage but the infidelity must involve members of the opposite sex.

The Equality Network, a Scottish gay rights group, held focus groups with their members when the Marriage and Civil Partnership (Scotland) Act 2014 was being debated, and they didn't feel the law on adultery needed to change. Unreasonable behaviour was considered to be sufficient. – bbc.com

But that is UK law, we cannot have the same concern here correct?  Each state in America has their own divorce laws, definitions, and allowances. Some are as unchanged as the UK, while others have made alterations.

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Under Virginia Code §20-91, a divorce may be granted based on the fault ground of adultery, or sodomy or buggery committed outside the marriage.  The crime of adultery is defined in Virginia Code §18.2-365 as a married person voluntarily engaging in sexual intercourse with a person not his or her spouse. ““Sexual intercourse” is defined as actual penetration to some extent of the male sexual organ into the female sexual organ”. Desper v. Commonwealth of Virginia (Va. App., 2011), citing Johnson v. Commonwealth, 53 Va. App. 608, 674 S.E.2d 541 (2009) and McCall v. Commonwealth, 192 Va. 422, 65 S.E.2d 540 (1951).  Consequently, adultery is a purely heterosexual crime and cannot be committed by same sex partners.

While “sodomy” itself is not defined in the Code of Virgina, the crime of forcible sodomy is, which includes aggravating circumstances resulting from the age of the victim or the force used to overcome the victim’s will, or forcibly causing another to commit sodomy.  Under Virginia Code §18.2-67.1 forcible sodomy occurs when the accused “…engages in cunnilingus, fellatio, anilingus, or anal intercourse with a complaining witness whether or not his or her spouse, or causes a complaining witness, whether or not his or her spouse, to engage in such acts with any other person…”  Such conduct would have to perpetrated by a spouse with a person not his or her spouse in order for it to constitute a fault ground for divorce.  Sodomy would include both heterosexual and homosexual activity.

“Buggery” is also not defined in the Code of Virginia.  At common-law, “buggery” included anal intercourse between males and sodomy between a male and an animal. – jameshwilsonjr.com

Virginia law cites the need of there being male and female sex organs involved in the act to define the occurrence of adultery.  To possibly cover men-on-men activity / adultery, the term sodomy is used.  Leaving the forcible sodomy definition out, are lesbian sexual encounters a part of the definition of adultery in regard to divorce in Virginia?  And then again, maybe Virginia should not be used since I am not sure I would want to know about buggery committed inside the marriage.

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The definitions, occurrences, genders of parties, and the ability to use adultery as a reason for divorce depends on in which state you reside. 

In Louisiana, Alphonso v. Alphonso, 422 So.2d 210 (La. App. 4th Cir.1982), recognized homosexual adultery where the wife cheated on her husband with another woman. 

Not all states need intercourse to have occurred to mention adultery.  In Louisiana, Menge v. Menge, 491 So.2d 700 (La. App. 5^th Cir. 1986), citing Adams v. Adams, 357 So.2d 881 (La. App. 1st Cir.1978), the court held that heterosexual oral sex constituted adultery and in Hawaii, Doe v. Doe, 286 S.C. 507, 334 S.E.2d 829 (Ct App 1985), a single act of fellatio by wife can constitute adultery.

In the last 15 years, however, the courts have begun to explain their holdings in greater detail. In the first expansive decision on the subject, RGM v. DEM, 306 S.C. 145, 410 S.E.2d 564, 566-67 (1991), the court stated that it found the wife’s traditional definition of adultery “unduly narrow and overly dependent upon the term sexual intercourse.” Then citing Patin v. Patin from Florida, the court concluded that explicit extra-marital sexual activity constitutes adultery regardless of whether it is of a homosexual or heterosexual character. “Accordingly, we conclude that homosexual activity between persons, at least one of whom is married to someone other than the sexual partner, constitutes adultery.”  – famlawconsult.com

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Now that we have marriage equality in all states, should we have the same divorce laws in every state, too?  The same definition of adultery?  Do you need to be aware of what definitions your state court system uses before you get married?  Will this lead to more prenuptial agreements especially in the LGBT community?

Probably the most famous case of "adultery" to date was the one involving our 42nd President.  It looks like he used his knowledge of legal definitions to the extreme.

When Bill Clinton said, “I did not have sex with that woman, Miss Lewinsky,” he was telling the truth, because he defined “sex” as “sexual intercourse between a man and a woman.” He would also have been telling the truth in many states if he had said “I did not commit adultery with that woman, Miss Lewinsky,” because many states similarly define adultery as “sexual intercourse between a man or woman and a person other than the offender’s spouse.” See generally Black’s Law Dictionary at 52 (7^th ed. 1999) (adultery is “voluntary sexual intercourse of a married person with a person other than the offender’s husband or wife”); 24 Am. Jur. 2d Divorce and Separation § 66 (1983); 27A C.J.S. Divorce § 60 (1986). – famlawconsult.com