adultery (<<schwa>>-d<<schwa>>l-t<<schwa>>-ree), n. Voluntary sexual intercourse
between a married person and someone other than the person’s spouse. • In many jurisdictions,
adultery is a crime, but it is rarely prosecuted. In states that still permit fault divorce, proof of
adultery is a ground on which a divorce may be granted. A court may also use proof of adultery as
a reason to reduce the offending spouse’s marital-property award in a property division. Judges
traditionally viewed adultery as a reason for denying the offending spouse primary custody of a
child in a child-custody dispute. But today, only the deleterious effect of immoral behavior on the
child is typically considered relevant. — Formerly also termed spouse-breach; avowtry. Cf.
FORNICATION; INFIDELITY. [Cases: Adultery 1.C.J.S. Adultery §§ 2–8.] — adulterous,adj.
— adulterer, adulteress,n.
“Returning to the question of adultery, evidently this word cannot be interpreted today in
precisely the meaning it bore for the Old Testament patriarchs. On Old Testament principles one
may marry several wives, even two sisters; and a married man may and should beget children for
his dead brother. When Sarah found herself childless, she advised her husband Abraham to go in
unto her maid, so that she might obtain children by the maid. Such acts, though evidently not
adulterous within the original meaning of the Decalogue, would be regarded as adulterous by the
laws and customs of Western society at the present day.” Glanville Williams, The Sanctity of Life
and the Criminal Law 134 (1957).
“If a statute provided for the punishment of adultery without definition of the term, this gave
rise to a difficulty as to the meaning of the word. In England, (1) the common-law meaning of the
word was sex with another’s wife, but this was not a common-law offense; (2) as the name of an
offense it referred to sex by a married person with one other than the spouse, but that was
recognized only in the ecclesiastical court.” Rollin M. Perkins & Ronald N. Boyce, Criminal Law
455 (3d ed. 1982).
“In some states, sexual intercourse between two married persons, who are not married to each
other, constitutes adultery on the part of both; sexual intercourse between a married person and an
unmarried person likewise constitutes adultery on the part of both. In other states, adultery can be
committed only by a married person. Thus, sexual intercourse between two married persons, who
are not married to each other, constitutes adultery on the part of both; but if only one party to the
sexual intercourse is married, the intercourse constitutes adultery on the part of the married person
and fornication on the part of the unmarried person. In other states, sexual intercourse constitutes
adultery only where the woman is the married party. Thus, sexual intercourse between a married
woman and a married man other than her spouse or sexual intercourse between a married woman
and an unmarried man constitutes adultery on the part of both; but if the woman is unmarried,
neither party is guilty of adultery even if the man is married.” 2 Charles E. Torcia, Wharton’s
Criminal Law § 211, at 531 (15th ed. 1994).
double adultery.Adultery between persons who are both married to other persons. [Cases:
Adultery 1. C.J.S. Adultery §§ 2–8.]
incestuous adultery.Adultery between relatives; adultery committed by persons who are
closely related. [Cases: Adultery 1; Incest 3. C.J.S. Adultery §§ 2–8; Incest§ 3.]
open and notorious adultery.Archaic. Adultery in which the parties reside together publicly,
as if married, and the community is generally aware of the living arrangement and the fact that the
couple is not married. [Cases: Marriage 53. C.J.S. Marriage § 45.]
single adultery.Adultery in which only one of the persons is married. [Cases: Adultery 1.
C.J.S. Adultery §§ 2–8.] [Blacks Law 8th]