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Maryland Attorney General Opines that Adultery Rules Apply to Same-Sex Marriages

Posted on: August 17th, 2015 by Art Leonard No Comments

Marriage equality means equal treatment of same-sex and different-sex marriages for all purposes of law.

Such is the premise of Maryland Attorney General Brian E. Frosh’s formal opinion issued in response to an inquiry from a member of the state’s House of Delegates, asking whether the adultery laws would be violated by sexual infidelity by a spouse in a same-sex marriage. Family Law – Divorce – Whether Same-Sex Marital Infidelity Can Qualify as Adultery for Purposes of Family Law Provisions Governing Divorce, 100 Op. Att’y Gen. 105 (July 24, 2015).  Assistant Attorney General Patrick B. Hughes and Chief Counsel Adam D. Snyder are also listed on the written opinion.

“Although the concept of adultery has significance in both criminal law and family law,” they wrote, “the State’s criminal prohibition against adultery has fallen into disuse, so we will focus on the definition of adultery for purposes of Maryland family law. In our opinion, adultery, as that term is used in the Family Law article, includes a spouse’s extramarital sexual conduct with someone of the same sex. We base this conclusion in large part on the purpose behind adultery laws in the domestic relations context. The primary purpose of adultery as a concept in Maryland family law is to recognize that sexual infidelity is a breach of the marriage vow and causes damage to the marriage, such that the injured party should be allowed to dissolve the marriage more easily than would otherwise be the case. This purpose is implicated to the same degree when an unfaithful spouse has sex with a man or a woman; extramarital sexual activity with someone of the same sex is just as damaging to a marriage as sexual activity with someone of the opposite sex. We accordingly believe that Maryland courts would recognize same-sex sexual infidelity as adultery.”

The opinion notes that Maryland courts had in the past taken a broader view than the traditional narrow common law definition, treating as “adultery” situations where a different-sex spouse had engaged in sexual activity with another person of the same sex. “Adultery” is one of the recognized “fault” grounds for divorce in Maryland, making it possible for a couple to divorce without living “separate and apart” for a year as is required for a no-fault divorce proceeding. “Adultery” is also a factor in alimony and child custody determinations.

The lengthy opinion provides a detailed history of adultery as a legal concept, documenting how the concept has evolved to the point where the genders of the parties should not make a difference. While the opinion finds that the plain language of the relevant statutory provisions is not particularly helpful in answering this question, the modern statutory purpose of the concept supports applying it equally to same-sex and different-sex marriages, even though a spouse cheating with a member of the same-sex doesn’t present the possibility of pregnancy, a key concern in the early history of the concept that was focused on protecting a husband’s patrimony.

Noting the recent Obergefell v. Hodges decision by the Supreme Court, the opinion comments, “The right to civil marriage would ring hollow if states could treat same-sex married couples differently than opposite-sex ones, providing special benefits to, or imposing special burdens on, one category but not the other. . . We think an overly narrow definition of adultery that excludes same-sex sexual activity, and makes it more difficult for same-sex couples to divorce, may raise similar constitutional problems. We need not decide, however, whether a court would ultimately find a constitutional violation if adultery were limited to sexual activity between a man and a woman. Rather, the point is that there is a legitimate question as to the constitutionality of defining adultery to exclude same-sex sexual activity, and this makes it even more likely that Maryland courts would choose a broader definition.”