Roger writing the LAWmag

Adultery's Bizarre Ancient Legal Background

Family law is fascinating in many regards but particularly as opposed to all other areas of the law without exception, it was the apparent need to regulate conduct as between man and woman or husband-and-wife that sits very close to if not on the cusp of the Big Bang of human law.

Hammurabi, in his 1780 B.C. law, had the adulteress thrown into the water until she drowned.

"Adultery," wrote Saint Thomas in about 200 A.D., "is the beginning of all evils.... Adultery is before God exceeding evil beyond other sins."

Anyone familiar with the 10 Commandments will remember #7: "Thou shalt not commit adultery".

Adultery is the voluntary sexual intercourse between a married person and another person who is not their married spouse. Originally, it was the only grounds for divorce though, later, a long period of abandonment also became available. Annulment has always been another popular avenue to end a marriage - just ask Henry VIII who used it to remove several wedding rings. It began when Katherine Howard was executed (head cut off) for alleged adultery in 1542, so Henry could marry Catherine Parr.1

In 1644, Rembrandt finished a now famous painting of Jesus (adjacent) with his retinue being asked what should be done with an adulteress to which he apparently responded (John 8): "If any one of you is without sin, let him be the first to throw a stone." That must of caused a fair amount of nervous energy in the old Hebrew court.

Rembrandt, If any one of you is without sin, let him be the first to throw a stone.One 1606 English law pinpointed the obvious(!) reason behind adultery (and, apparently, any fornication) when the Parliament passed An Act For Repressing the Odious and Loathsome Sin of Drunkenness with this preamble:

"Whereas the loathsome and odious sin of drunkenness is of late grown into common use within this Realm, being the root and foundation of many other enormous sins, as a bloodshed, stabbing, murder, swearing, fornication, adultery and such like." [see Crazy English Laws - The Sequel]

Drunkenness? Who knew?

From My Briefcase

Today, in many jurisdictions, family law is evolving to prefer no-fault divorce, divorce which is granted by the mere influx of a stated period of separation, such as one-year to use the example of Canada. To stay in the land of ice hockey and three-down football, adultery investigations and the sheer cost (and publicity of it) had become problematic - see The Divorce Blockade, 1960.

Sometimes, a divorce client will insist that the divorce pleadings identify adultery is the reason for the divorce even though the alternate grounds, the one-year separation, is also present in the facts. A priori, there is nothing wrong with this since what is trying to be achieved here is a correct and accurate legacy as to why in fact, the divorce occurred. Rarely if ever has a divorce been caused by a one-year separation.

But to their credit or discredit depending on your point of view, contemporary courts of law are not enthusiastic about entertaining hearings or trials of divorce cases based on adultery or cruelty when the time period of separation presents itself to permit the divorce.

Oh! The Sweet Crazy Law of Yore!

This is such a universal phenomenon in family law that by mere attrition, a curious body of law on the legal concept of adultery is fading. That old body of law on adultery (i.e. dusty, falling to pieces, leather-bound books in the local law school library) seems now ready for a law museum, so long has it been that it has had any relevance in modern family courts, in free and democratic societies.

Henry VIII, adultery case frequent flyerUnderlying even the body of modern law are those ancient and now quaint principles of ecclesiastical law, once relevant before ecclesiastic courts which were the only ones with jurisdiction to hear divorce cases.

In that ancient body of religious law, there were three distinct forms of adultery:

  1. Between a married man and an unmarried woman;
  2. Between an unmarried man and a married woman; and
  3. Between a married man and a married woman.

There was a gradient of adultery which we now present starting with the then-most egregious:

  • Adultery between two married people as it was double adultery.
  • Adultery between a married woman and an unmarried man and here, because of the obvious gender bias in the statement, we present the then-rationale, now some 200 years old: because such a form of adultery violated the integrity of an existing family. The original French text: "... à cause du danger d'introduire des étrangers dans la famille".2
  • Apparently, the least serious of the varieties of adultery, according ancient ecclesiastical law, was adultery between a married man and an unmarried woman.

It is not well known that lawyers in centuries past, even those practicing ecclesiastic law and including many priests among them, could be as creative as modern lawyers. As a complete defense to adultery, many would-be adulterers either directly or through their lawyers or priests, could successfully get out of the charge of adultery by alleging that while admitting to sexual relations (formally, fornication) with a woman married to another, the sex had nothing to do with the fact that the woman was married. It was because the woman was irresistibly attractive. When this defense was successfully argued, adultery was dismissed and the adulterer, instead, saddled with the inconsequential finding that he was impure.3

Still Bizarre, if not Chilling Somewheres

Like everywhere else on the timetable of law, principles and concepts come and go always as an (albeit often belated), reflection of the times and society. Ancient family law looked upon in the rear view mirror often appears bizarre if not humorous, though darkened stars in the old constellation of a modern body of family law now prevailing.

But the work of progress and evolution is not over even in this area. Many countries are governed by sharia or muslim law where adultery goes by the name zina for which the punishment is:

"Zina, or unlawful sexual intercourse (by a woman, eg. sexual intercourse outside marriage and  adultery), is punishable by death by stoning, if the (female) offender is currently married or has been married in the past. Otherwise the penalty is 100 lashes....

"Men are imprisoned for one year."4

REFERENCES:

  • Bechtel, Guy and Carriere, Jen-Claude, Dictionnaire de la Bêtise et des erreurs de jugement - Le Livre de Bizarres (Paris: Éditions Roibert Laffont, 1965), page 5.
  • Bouvier, J. B., Monseigneur (1783-1854), Dissertations sur le sixieme commandment (France). Also NOTE 2.
  • Duhaime, Lloyd, 1300 B.C. - The Ten Commandments
  • LAWgallery, If any one of you is without sin, let him be the first to throw a stone, Rembrandt painting, 1644
  • Duhaime, Lloyd, Legal Definition of Adultery.
  • Moulet, l'abbé, Compendium à l'usage des séminaires (France: 1843). Also NOTE 3.
  • NOTE 1: Henry VIII's K. C. lawyers also used treason to have his third wife Anne Boleyn executed in 1536, to pave the way for his then-latest crush, Jane Seymour.
  • NOTE 4: The Legal Definition of Zina.
  • Saint Thomas, Acts of Thomas, The Apocryphal New Testament, translated by M. R. James (Oxford: Clarendon Press, 1924).

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