From the Family Law Letter November - December 2003

Emerging Law:

NH Supreme Court Rules Same-Sex Affair Not Adultery

In our review of fault grounds for divorce in the September-October New Hampshire Family Law Letter we reported that the New Hampshire Supreme Court was expected to rule on whether an extramarital homosexual relationship constitutes adultery. On November 7 the Court issued its opinion, holding that “adultery under RSA 458:7, II does not include homosexual relationships.” In the Matter of David G. Blanchflower and Sian E. Blanchflower, __ NH __ (2003). Since the statute does not define adultery, the majority in the three-two opinion based its holding on dictionary definitions of adultery and sexual intercourse, which it concluded “can only take place between persons of the opposite gender.” Id.

Citing nineteenth-century case law, the Court also wrote “‘Adultery is committed whenever there is an intercourse from which spurious issue [illegitimate children] may arise…’ State v. Wallace, 9 N.H. 515, 517 (1838); see also State v. Taylor, 58 N.H. 331, 331 (1878) (same). As ‘spurious issue’ can only arise from intercourse between a man and a woman, criminal adultery could only be committed with a person of the opposite gender.”

Dissenting, Justices Brock and Broderick noted “The purpose of permitting fault-based divorces is to provide some measure of relief to an innocent spouse for the offending conduct of a guilty spouse. See Robinson v. Robinson, 66 N.H. 600, 610 (1891).” They argued “From the perspective of the injured spouse, the very party fault-based divorce law is designed to protect, ‘[a]n extramarital relationship . . . is just as devastating . . . irrespective of the specific sexual act performed by the promiscuous spouse or the sex of the new paramour.’” See S.B. v. S.J.B., 609 A.2d 124, 126 (N.J. Super. Ct. Ch. Div. 1992). “Indeed, to some, a homosexual betrayal may be more devastating. Accordingly, consistent with the overall purpose of New Hampshire’s fault-based divorce law, we would interpret the word ‘adultery’ in RSA 458:7, II to mean a spouse’s extramarital intimate sexual activity with another, regardless of the specific intimate sexual acts performed, the marital status, or the gender of the third party. See id. at 127.

But the majority rejected this broader definition, holding that “This standard would permit a hundred different judges and masters to decide just what individual acts are so sexually intimate as to meet the definition.”

All the Justices agreed on one point: this case is not about the status of homosexual relationships in our society or the formal recognition of homosexual unions.