One of the most distressing and devastating challenges to any marriage is the challenge of adultery. Though some marriages survive the stressful impact of one spouse’s unfaithfulness, others simply cannot.
Adultery is defined by Black’s Law Dictionary as “the voluntary sexual intercourse of a married person with a person other than the offender’s husband or wife.” For good reason, adultery is a fault ground for divorce in many states, including Massachusetts.
Adultery is also considered a crime in Massachusetts. The relevant criminal statute reads, “A married person who has sexual intercourse with a person not his spouse or an unmarried person who has sexual intercourse with a married person shall be guilty of adultery and shall be punished by imprisonment in the state prison for not more than three years or in jail for not more than two years or by a fine of not more than five hundred dollars.” 1
The case of Commonwealth v. Stowell upheld the constitutionality of the criminal adultery statute in Massachusetts. 2 In that case, the defendant was convicted of adultery after being arrested for having sexual intercourse with a man who was not her husband. On appeal, she alleged that the adultery statute violated the Constitution’s fundamental right to privacy, but the Supreme Judicial Court disagreed. While the Court noted its awareness that adultery is rarely prosecuted as a crime, it also noted that did not mean the statute was invalid or judicially unenforceable.
In terms of divorce actions, some specific procedural considerations apply when a party pleads adultery as a fault ground. First, adultery must be specifically pleaded in the Complaint. Second, circumstantial evidence may be used to prove adultery. In one case, for example, the husband observed another man leave the husband’s home on several occasions while the wife was home, and on one of those occasions, the wife wore a kimono and slippers. The court allowed the case to proceed on the basis of adultery. 3
It should be noted, however, that pure speculation is not enough to prove allegations of adultery. In one case, for example, the court found that simply having ample opportunity to engage in adultery, by way of a husband’s many visits with another woman, did not establish that adultery occurred. 4 “The fact that the parties had ample opportunity to commit adultery is not, of itself, grounds for divorce,” the Court noted. “There must be some evidence of speech or conduct indicating an adulterous disposition.” 5
Another issue to discuss is that of condonation. If a spouse forgives a party who engaged in an adulterous relationship and continues to live together as a married couple, he or she is will not be able to plead adultery as a ground for divorce. This is provided that the spouse has full knowledge of the adulterous behavior, and that the behavior is not repeated after condonation.
1 Mass. Gen. Laws ch. 272, s. 14
2 Commonwealth v. Stowell, 389 Mass. 171 (1983).
3 Murphy v. Murphy, 244 Mass. 110 (1923).
4 DiRosa v. DiRosa, 350 Mass. 765 (1966).
5 Id., at 765.