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? 

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). –

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. –

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.

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. –

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.

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. 5th 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.”  –

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 (7th 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). –


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

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  2. I am thankful for a deep

    I am thankful for a deep-thinking subject on this site! Thank you!!! …Let the discussions continue…

  3. If you get married to someone

    If you get married to someone you are saying that there is an intimacy between you that involves an exclusivity. To say otherwise is to admit that the enemies of "gay marriage" were right all along, and this would lead to weird crap. Multiple partners, gay or straight, is dishonest. It does not matter if everyone is informed or not, will or not, or in favor of it or not. The legality of your little arrangement just became meaningless. You are now cheaters with a piece of paper.

    • I once believed what you are

      I once believed what you are saying, but then a highly educated friend of mine told me this and it changed how I thought of marriage forever:

      The reason that the majority of marriages end in divorce (statistically true) is because people cannot be their true authentic selves. They are put into a box and told to live their lives to do what others think they should do, now that they are "married." It is extremely harmful to the individual, and to the couple. So, if two people are genuinely happiest having sex with multiple people, then they absolutely have the right to have sex with more than one person after marriage. Every marriage should be built on what works for that marriage. Some people are happiest with only one partner forever, in all ways. Others are mutually respectful and mature about branching out sexually –and happiest that way. It is not a big deal if the people involved are mature and honest. 


      Try not to be so dang judgmental, my friend. Open your mind, and let people be happy in their own lives. It's really ok, even wonderfully healthy, for people to find and build their own definition of marriage. 

  4. More silly sh*t about

    More silly sh*t about marriage. Most GLBT people don't dare get married because they have any protection against discrimination. What good does it do to be married and then lose you job and have your lease terminated?


  5. Hold up: ‘Redefining Marriage

    Hold up: 'Redefining Marriage' is a homophobic phrase used to promote hate. Obergefell did NOT redefine anything, it just opened to door for more people to participate in an institution that remains fundamentally unaltered. 


    • A homophobic phrase to

      A homophobic phrase to promote hate? It's actually a truth since we did redefine marriage in the eyes of many people out there who defined marriage as one man and one woman. It is a redefinition when marriage license forms require alterations for them to be functional for same-sex marriages.  Why give such negative power to a phrase when in actuality, it is kind of what we did.  Laws across the nation will need to be rewritten may they be about marriage or adultery. We made change occur. We did redefine and rewrite and rejoice. If we change the adultery laws, would it be okay to say we redefined them or would it be better if we said we just opened the doors of adultery for more people?

  6. Maybe everyone needs to go to

    Maybe everyone needs to go to  canceling before they get married  and be made to understand that when you get married that's the only pussy or dick you will ever have. Lol. So many people are so not ready to be married. 


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