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Is Adultery Grounds for a Divorce in an “Open Marriage”?

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Is Adultery Grounds for a Divorce in an “Open Marriage”?

Today, “open marriages” are becoming more and more common.  In the past week, there have been dozens of news stories, think pieces, and celebrity columns about monogamy and open marriages.  Not every marriage works out, and the same is no less true for open marriages.

In a standard, closed marriage, parties can get divorces based on adultery – or sex/relationships outside the marriage.  But what about open marriages, where relationships outside the marriage are expected?  Is adultery still grounds for a divorce?  The experienced Philadelphia family lawyers at Sadek and Cooper explain Pennsylvania’s rules on the subject:

Fault Divorce in “Open Marriages”

When a spouse wants a divorce, they have two options in Pennsylvania: a “fault” or “no-fault” divorce.  The term “fault” does not necessarily mean that a fault divorce is focused on blame and bad actions, but it does have some elements of blame.  Basically, in a fault divorce, one party sues the other for divorce because of something the other party did.

In Pennsylvania, there are six grounds for fault divorce under 23 Pa.C.S. § 3301:

  1. Desertion,
  2. Adultery,
  3. Cruel and barbarous treatment,
  4. Bigamy,
  5. Imprisonment, and
  6. Indignities.

In these divorces, the “plaintiff” sues for divorce based on one of these grounds.  The other spouse, who challenges the divorce, is called the “defendant.”

“Adultery” is on this list, but not actually defined in the PA code.  Instead, the common definition gives us enough to work with.  Adultery is generally defined as voluntary sexual intercourse between a married person and a person who is not their spouse.

In an open marriage, the spouses usually agree that they will be able to have romantic relationships and sexual intercourse with people other than their spouses.  There is nothing illegal about this in Pennsylvania, as consenting adults can privately agree to many terms of their marriage.

Even in an open marriage, the spouses may still technically meet the definition of “adultery” in their extra-marital relations.  If the parties are okay with this, then it will not lead to any problems.  Problems often arise, though, when one of the spouses changes their mind.

The definition of “adultery” and its position as legal grounds for divorce can complicate open marriages.  If one spouse changes their mind on the open marriage agreement, they may want to sue for divorce on the grounds of adultery.  Alternatively, if one party sues for divorce, they may turn to adultery as the legal grounds.  Technically, as the divorce code is written, adultery could actually be used as the legal grounds for a divorce, even in an open marriage.

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“Open Marriage” as a Defense to Divorce

Even though the plaintiff may sue for divorce based on adultery grounds, the courts are unlikely to accept these grounds in an open marriage.  Many things in the law have built-in “defenses” that help protect defendants from unfair outcomes.  Adultery divorces have built-in defenses, listed under 23 Pa.C.S. § 3307.

The first set of defenses, referenced in § 3307(a), are old, common law defenses to divorce.  These have been around for centuries and come from English law before being brought to the U.S.  These defenses are as follows (as they relate to adultery):

  • Condonation: The plaintiff forgave the defendant for prior acts of adultery.
  • Connivance: The plaintiff secretly allowed the adultery or turned a blind eye.
  • Collusion: The plaintiff helped set-up or participated in the adultery.
  • Recrimination: The defendant accuses the plaintiff of also performing adulterous acts.
  • Provocation: The plaintiff provoked the defendant into adultery.

Though some of these situations may seem ridiculous, remember that they are very old defenses and might not reflect modern values.  At the same time, they can still be effective grounds to stop a divorce.

  • 3307(b) also lists four specific defenses that work against adultery claims:
  1. The plaintiff also committed adultery;
  2. The plaintiff continued to have sexual relations with the defendant after knowing about the defendant’s adultery;
  3. The defendant allowed the plaintiff to act as a prostitute, or acted as the plaintiff’s pimp; or
  4. The plaintiff introduced the defendant into the “lewd company” involved in the adultery.

Some of these overlap with the common law defenses, especially collusion and recrimination.

The most obvious ways that these act as defenses to adultery claims in an open marriage are with condonation and recrimination.  In a truly open marriage, it is likely that one spouse allows the other to have extra-marital relations, which would satisfy the defense of condonation.  Similarly, if both spouses have extra-marital relations, the recrimination defense would work.

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Fault divorces often involve revealing private facts that may be embarrassing.  Luckily, Pennsylvania also allows no-fault divorces for couples who both agree to a divorce.

Whether you are seeking or defending against a divorce, or agree on a no fault divorce, you may need a divorce attorney.  The family lawyers a Sadek and Cooper have experience handling divorce settlements and lawsuits.  Call our lawyers today at 215-814-0395 for a free consultation about your divorce.

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