Sex, love and divorce law: a short history of adultery

No-Fault Divorce came about in the UK after years of campaigning for a system where neither party would have to be “blamed” for the breakdown of the marriage, making the process less hostile and allowing the couples to follow a more conciliatory and reflective approach. With this change, the need to evidence the irretrievable breakdown of the marriage with reference to facts, such as adultery, came to an end.  However, the issue of adultery remains far from archaic or obsolete, with it continuing to be a crime in many countries around the world, especially those governed by Islamic law.  Consequentially, the legacy of adultery law still resonates powerfully in how we think about love, sex and divorce. 

ONEROUS ORIGINS

The English church began to prosecute people for sex acts in the 12^th century. Adultery was criminalised in the sexual morality codes alongside sodomy, which back then encompassed all kinds of transgressive sex. Church advice was so thorough as to warn against deviant positions like the woman going on top, oral sex and sex ‘a tergo’, from behind, which perhaps excepting anal sex, was seen as the most sinful position of all.

Given the public’s wanton disregard for ecclesiastical counsel, adultery became so common that by the later Middle Ages it was not even considered grounds for the dissolution of marriage. By the 19th century this had all changed. Adulterers were punished in the divorce courts where adultery was the key prerequisite for dissolving marriage. Proceedings would degenerate into public shaming in open courts. All the salacious details that entertained and scandalised the nation made social pariahs of the divorcees. In spite of this, court records show what may have been cases of staged adultery - a farce famously depicted in Evelyn Waugh’s A Handful of Dust. These masquerades would see a wife burst in at a pre-arranged time with a detective and photographer. Modesty often dictated that both husband and lover would be found on the bed fully dressed, from top hat to shoes, when they were surprised in flagrante. This kind of evidence would later be dismissed as collusive.

THE ADULTERER’S OLD BLAME GAME

In real terms adultery is never really ‘punished’ in the divorce courts. A guilty spouse could be somewhat more willing to agree to a favourable settlement, especially if they wanted to remarry quickly. However, adultery rarely affected legal decisions about financial matters or children. Most courts also used to recognise that adultery could be symptomatic, rather than the cause, of a failing marriage. What adultery law did do was maintain a blame-based divorce system which compounded issues in already unamicable break-ups.

The Divorce, Dissolution and Separation Act (2020), now in force, veers away from ascribing blame in divorce proceedings. The previous conduct-based system meant that if a couple wanted to divorce without the time delay of separation or desertion, their only other option was claiming their partner had acted unreasonably. The procedural blame-game forced the partners into a corner. If it was the naughty spouse who wanted the divorce this amounted to: “you can either divorce me on the grounds of my adultery or I will divorce you on the grounds of your unreasonable behaviour.”

CRIMINAL CONVICTIONS

Though our own system condemns the intrusion and all-too-frequent abuse to women’s rights that comes from criminalising adultery, British nationals are still affected by adultery laws worldwide.

In 2008 a young British man named David Scott was charged and thrown in a Filipino jail after moving to live with his long-term girlfriend Cynthia Delfino, whose separation from her estranged husband was not complete. In 2009, Marnie Pearce was jailed for three months after being accused of having an affair by her Egyptian husband. Later that year the same happened to Sally Antia, the wife of a British airline pilot, after her husband reported her infidelity to the police.

Though all European countries have decriminalised adultery, in Obst v Germany, the European Court of Human Rights upheld the Mormon Church’s dismissal of its European PR Director as a result of his sexual indiscretion.

These prosecutions are somewhat at odds with a public comprised of 1.2 million Ashley Madison users at the time of the infamous breach. Indeed barely a third of British people now think an extra-marital affair would put their relationship under strain, an official study suggests.

UNWELCOME AND OUTDATED

Today we have longer lives, more lovers, and the hegemony of the holy, mother Church is somewhat diminished, but the seventh commandment continues to entrench itself in legal dressing. Adultery jars with how sex and divorce proceedings should be dealt with in modern marriage and eroding its relevance within English divorce law disaffiliates our own legal systems from those that criminalise adultery. Unsurprisingly, the new framework introduced by No-Fault Divorce has been received by Vardags with open arms. It represents a shift towards less contentious divorces and is representative of a modern society where there shouldn’t have to be evidence pointing towards intimate acts in order to divorce… what happens in the bedroom can stay in the bedroom and outside of the courts.

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