The history of adultery in English law is a complex topic, including changing understandings of what sexual acts constituted
adultery
Adultery (from Latin ''adulterium'') is extramarital sex that is considered objectionable on social, religious, moral, or legal grounds. Although the sexual activities that constitute adultery vary, as well as the social, religious, and legal ...
(whereby they sometimes overlap with
abduction and
rape
Rape is a type of sexual assault usually involving sexual intercourse or other forms of sexual penetration carried out against a person without their consent. The act may be carried out by physical force, coercion, abuse of authority, or ...
), 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.
Early medieval England
Prior to the
unification of England
Anglo-Saxon England or Early Medieval England, existing from the 5th to the 11th centuries from the end of Roman Britain until the Norman conquest in 1066, consisted of various Anglo-Saxon kingdoms until 927, when it was united as the Kingdom of ...
in the tenth century, various forms of adultery were punishable in laws codified by
Anglo-Saxon kings.
[Jeremy D. Weinstein]
"Adultery, Law, and the State: A History"
''Hastings Law Journal'', 38.1 (1986), 195–238. These laws usually conceptualised what is now called adultery in terms of damage to men's property, since women were understood to be under the control of male relatives or, after marriage, their husbands. Compensation payments were linked, as in many other kinds of crime, to the social rank of the offended man, and the laws do not indicate a religious dimension to the conceptualisation of adultery in the law. The probably seventh-century
Law of Æthelberht
The Law of Æthelberht is a set of legal provisions written in Old English, probably dating to the early 7th century. It originates in the kingdom of Kent, and is the first Germanic-language law code. It is also thought to be the earliest examp ...
,
king of Kent
This is a list of the kings of the Anglo-Saxon Kingdom of Kent.
The regnal dates for the earlier kings are known only from Bede. Some kings are known mainly from charters, of which several are forgeries, while others have been subjected to tampe ...
, permitted men to seek compensation or revenge in cases where men had sex with women under their control. Clause 31, for example, reads "if a freeman lies with
nother
Amalie Emmy Noether Emmy is the '' Rufname'', the second of two official given names, intended for daily use. Cf. for example the résumé submitted by Noether to Erlangen University in 1907 (Erlangen University archive, ''Promotionsakt Emmy Noet ...
free-man's wife, he shall pay
he husbandhis
wergeld
Weregild (also spelled wergild, wergeld (in archaic/historical usage of English), weregeld, etc.), also known as man price (blood money), was a precept in some archaic legal codes whereby a monetary value was established for a person's life, to b ...
and procure a second wife with his own money, and bring her to the other man's home".
The ninth-century
Laws of Alfred
The Doom Book, ''Dōmbōc'', Code of Alfred or Legal Code of Ælfred the Great was the code of laws ("dooms" being laws or judgments) compiled by Alfred the Great ( 893 AD). Alfred codified three prior Saxon codes – those of Æthel ...
of
Wessex
la, Regnum Occidentalium Saxonum
, conventional_long_name = Kingdom of the West Saxons
, common_name = Wessex
, image_map = Southern British Isles 9th century.svg
, map_caption = S ...
include similar provisions, including an explicit statement that it was legal for one man to attack another "if he finds another with his wedded wife, behind closed doors or under the same blanket; or
f he finds another manwith his legitimate daughter (or with his legitimate married sister); or with his mother, if she has been legally married to his father".
Following the unification of England around the early tenth century, English kings promulgated further law-codes that began to conceptualise adultery in terms of
Christian sin
In a religious context, sin is a transgression against divine law. Each culture has its own interpretation of what it means to commit a sin. While sins are generally considered actions, any thought, word, or act considered immoral, selfish, s ...
.
These included the
law codes of
Cnut
Cnut (; ang, Cnut cyning; non, Knútr inn ríki ; or , no, Knut den mektige, sv, Knut den Store. died 12 November 1035), also known as Cnut the Great and Canute, was King of England from 1016, King of Denmark from 1018, and King of Norwa ...
. Not unlike previous laws, the code specified fines in the case of an adulterous husband, or religious penance in cases viewed as minor (adultery with a slave), but also prescribed corporal mutilation for female adulterers—cutting off their nose and ears—as well as the forfeiture of all the woman's property to her husband. Although Cnut's laws show the influence of
Wulfstan, Archbishop of York, it has been argued that this violent punishment of women reflects long-standing custom that had simply not previously been codified rather than religious influence.
Later medieval England
The principle that men might legally kill adulterers found with women under their control persisted following the
Norman Conquest
The Norman Conquest (or the Conquest) was the 11th-century invasion and occupation of England by an army made up of thousands of Norman, Breton, Flemish, and French troops, all led by the Duke of Normandy, later styled William the Con ...
in the ''
Leis Willelmi'', but the ''
Leges Henrici Primi
The ''Leges Henrici Primi'' or ''Laws of Henry I'' is a legal treatise, written in about 1115, that records the legal customs of medieval England in the reign of King Henry I of England. Although it is not an official document, it was written ...
'' of around 1114–1118 decreed that the King should have the executive authority to punish an adulterous man, and that adulterous women should be punished by bishops.
During the twelfth century, as English
common law
In law, common law (also known as judicial precedent, judge-made law, or case law) is the body of law created by judges and similar quasi-judicial tribunals by virtue of being stated in written opinions."The common law is not a brooding omnipres ...
emerged, the punishment of adultery was shifted from the secular authorities to the ecclesiastical ones. Ecclesiastical authorities did not impose death penalties, but the killing of a male adulterer by a male cuckold was not outlawed in secular law, leaving scope for lawful revenge-killing.
In time, however, adultery came exclusively to be a concern of the Church courts, and was not a crime at common law.
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.
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.
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
Rape is a type of sexual assault usually involving sexual intercourse or other forms of sexual penetration carried out against a person without their consent. The act may be carried out by physical force, coercion, abuse of authority, or ...
or
abduction, though by the late fifteenth century such prosecutions had fallen out of use.
Modern period
Ecclesiastical jurisdiction over adultery cases continued from the medieval period until the passage of the
Matrimonial Causes Act
"Matrimonial Causes Act" is a stock short title used for legislation in the United Kingdom relating to marriage law.
List
* The Matrimonial Causes Act 1857
* The Matrimonial Causes Act 1858
* The Matrimonial Causes Act 1859
* The Matrimonial Ca ...
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.
[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.
Adultery was outlawed in secular statute law briefly under the
Commonwealth of England
The Commonwealth was the political structure during the period from 1649 to 1660 when England and Wales, later along with Ireland and Scotland, were governed as a republic after the end of the Second English Civil War and the trial and execu ...
in the 1650s. Following a long series of attempts to legislate against adultery in Parliament which failed to win the vote, the
Rump Parliament
The Rump Parliament was the English Parliament after Colonel Thomas Pride commanded soldiers to purge the Long Parliament, on 6 December 1648, of those members hostile to the Grandees' intention to try King Charles I for high treason.
"Rump" ...
passed the
Commonwealth (Adultery) Act in May 1650, ''inter alia'' imposing the death penalty for adultery, that was defined as sexual intercourse between a married woman and a man other than her husband. Both partners would be liable for death sentence in such case. If a man (married or unmarried) had sex with an unmarried woman (including widow), that would be
fornication, punishable only by three months for first offenders (applicable to both partners). However, like all legislation passed by the Commonwealth, the act was repealed following the
Restoration of the Monarchy in 1660.
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
loss of consortium
Loss of consortium is a term used in the law of torts that refers to the deprivation of the benefits of a family relationship due to injuries caused by a tortfeasor. In this context, the word ''consortium'' means "(the right of) association and fe ...
, which made it possible for a cuckold to bring a
civil case
-
A lawsuit is a proceeding by a party or parties against another in the civil court of law. The archaic term "suit in law" is found in only a small number of laws still in effect today. The term "lawsuit" is used in reference to a civil acti ...
against an adulterer under
tort law
A tort is a civil wrong that causes a claimant to suffer loss or harm, resulting in legal liability for the person who commits the tortious act. Tort law can be contrasted with criminal law, which deals with criminal wrongs that are punishabl ...
.
'Consortium' in this context means "(the right of) association and fellowship between two married people"; 'loss of consortium' was an act that deprived one spouse (initially only the husband) of the services which the other spouse was expected to provide. In the 1619 case Guy v. Livesey, it is clear that precedent had been established by that time that exclusive access to sexual services was considered to fall within the concept of 'consortium', and that an adulterer might therefore be prosecuted for depriving a cuckold of exclusive access to the sexual services of his wife.
From the early eighteenth century, the term for this kind of crime came to be '
criminal conversation
At common law, criminal conversation, often abbreviated as ''crim. con.'', is a tort arising from adultery. "Conversation" is an old euphemism for sexual intercourse that is obsolete except as part of this term.
It is similar to breach of pro ...
' (where 'conversation' is a euphemism for 'sexual intercourse').
Another avenue for prosecuting an adulterer for loss of consortium was to accuse them of 'enticement' (wooing a spouse such that she desired to leave her husband).
The possibility of seeking damages against an adulterer in tort law persisted until the passage of the
Law Reform (Miscellaneous Provisions) Act 1970
Law is a set of rules that are created and are law enforcement, enforceable by social or governmental institutions to regulate behavior,Robertson, ''Crimes against humanity'', 90. with its precise definition a matter of longstanding debate. ...
.
Adultery also had an important position in
English divorce law. The
Matrimonial Causes Act 1857
The Matrimonial Causes Act 1857 was an Act of the Parliament of the United Kingdom. The Act reformed the law on divorce, moving litigation from the jurisdiction of the ecclesiastical courts to the civil courts, establishing a model of marriage ...
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
At common law, criminal conversation, often abbreviated as ''crim. con.'', is a tort arising from adultery. "Conversation" is an old euphemism for sexual intercourse that is obsolete except as part of this term.
It is similar to breach of pro ...
, 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.
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
Loss of consortium is a term used in the law of torts that refers to the deprivation of the benefits of a family relationship due to injuries caused by a tortfeasor. In this context, the word ''consortium'' means "(the right of) association and fe ...
(marital services) of his wife and damages to his reputation, honour, and family life.
[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).
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). The
Matrimonial Causes Act 1937
The Matrimonial Causes Act 1937 is a law on divorce in the United Kingdom. It extended the grounds for divorce, which until then only included adultery, to include unlawful desertion for three years or more, cruelty, and incurable insanity, inces ...
added further grounds for divorce: cruelty, desertion and incurable insanity.
The
Divorce Reform Act 1969
The Divorce Reform Act 1969 is an Act of Parliament in the United Kingdom. The Act reformed the law on divorce by enabling couples to divorce after they had been separated for two years if they both desired a divorce, or five years if only one wan ...
introduced no-fault divorce based on separation. The divorce law was further liberalized by the
Divorce, Dissolution and Separation Act 2020
The Divorce, Dissolution and Separation Act 2020 (c. 11) is an act of the Parliament of the United Kingdom which amends existing laws relating to divorce to allow for no-fault divorce in England and Wales.
The government held that the change ...
.
References
{{reflist
Adultery in law
Legal history of England