Adultery in English law
The history of adultery in English law is a complex topic, including changing understandings of what sexual acts constituted adultery (whereby they sometimes overlap with abduction and rape), unequal treatment of men and women under the law, and competing jurisdictions of secular and ecclesiastical authorities. Prosecution for adultery as such ceased to be possible in English law in 1970.[1]
Early medieval England
Prior to the
Following the unification of England around the early tenth century, English kings promulgated further law-codes that began to conceptualise adultery in terms of
Later medieval England
The principle that men might legally kill adulterers found with women under their control persisted following the
There is evidence, however, that local secular courts sometimes exercised judgements in adultery cases; in one thirteenth-century or early fourteenth-century case, for example, a monk was put in the stocks for adultery.[3]: 215 Moreover, juries would at times refuse to condemn cuckolds who killed adulterers in flagrante delicto, in practice facilitating the ancient custom of revenge-killing by cuckolds.[3]: 228–29 Meanwhile, although adultery might not be prosecuted in the secular courts per se, adulterous acts might become part of the basis for prosecution for rape or abduction, though by the late fifteenth century such prosecutions had fallen out of use.[3]: 212–216
Modern period
Ecclesiastical jurisdiction over adultery cases continued from the medieval period until the passage of the Matrimonial Causes Act of 1857 brought jurisdiction over marriage, divorce and adultery from the ecclesiastical courts into the secular ones. Ecclesiastical punishments for adultery prior to 1857 involved forms of penance, sometimes public, such as appearing before the parish congregation in a penitential white sheet.[5]: 205, 209
Adultery was outlawed in secular statute law briefly under the
A more lasting change during the early modern period was that it became possible to prosecute for adultery in English common law due to developments in the common-law concept of
Adultery also had an important position in English divorce law. The Matrimonial Causes Act 1857 moved litigation from the jurisdiction of the ecclesiastical courts to the civil courts, establishing a model of marriage based on contract rather than sacrament and widening the availability of divorce beyond those who could afford to bring proceedings for annulment or to promote a private Bill. The Act did not treat women's and men's grounds for divorce equally; a husband could petition for divorce on the sole grounds that his wife had committed adultery, whereas a wife could only hope for a divorce based on adultery combined with other offences. The Act also altered the handling of adultery in English law: it abolished the crime of criminal conversation, but maintained the principle that 'since a wife's adultery caused injury to the husband, it entitled him to claim compensation from the adulterer', implying that the wife was the property of the husband – not least because wives could not claim compensation from adulterous husbands.[3] Compensation was no longer, however, paid to the cuckold, but to the court, and damages were not to be punitive or exemplary but purely to compensate a husband's loss of consortium (marital services) of his wife and damages to his reputation, honour, and family life.[9][10]
After World War I, reforms to divorce law put men and women on a more equal footing. The Matrimonial Causes Act 1923 made adultery a ground of divorce for either spouse (previously, only the man had been able to do this; women had to prove additional fault).[11] The Matrimonial Causes Act 1937 added further grounds for divorce: cruelty, desertion and incurable insanity.[12] The Divorce Reform Act 1969 introduced no-fault divorce based on separation. The divorce law was further liberalized by the Divorce, Dissolution and Separation Act 2020.
References
- ISSN 1021-545X.
- .
- ^ a b c d e f g h i j k l m n o p Jeremy D. Weinstein, "Adultery, Law, and the State: A History", Hastings Law Journal, 38.1 (1986), 195–238.
- .
- ^ a b c d Marita Carnelley, "Laws on Adultery: Comparing the Historical Development of South African Common-law Principles with those in English Law", Fundamina (Pretoria), 19.2 (February 2013), 185–211.
- ^ J. P. Kenyon, "The Interregnum, 1649–1660", in J. P. Kenyon, The Stuart Constitution (Cambridge University Press, Cambridge, 1969), page 330
- ^ "consortium". Oxford English Dictionary (Online ed.). Oxford University Press. Retrieved 3 November 2019. (Subscription or participating institution membership required.)
- ^ "criminal". Oxford English Dictionary (Online ed.). Oxford University Press. Retrieved 3 November 2019. (Subscription or participating institution membership required.)
- ^ Marita Carnelley, 'Laws on Adultery: Comparing the Historical Development of South African Common-law Principles with those in English Law', Fundamina (Pretoria), 19.2 (February 2013), 185-211 (pp. 208-9).
- ^ Jeremy D. Weinstein, 'Adultery, Law, and the State: A History', Hastings Law Journal, 38.1 (1986), 195-238 (p. 167).
- ^ "Divorce since 1900|Split pairs". www.parliament.uk. Retrieved 12 August 2021.
- ^ "Split pairs". www.parliament.uk.