November 9, 2013 Kennallman

Legal Definitions of “Infidelity” and “Adultery”


In a religious context, infidelity is an absence of faith in the beliefs or teachings of a religion; one who lacks such faith is an infidel. According to recent usages, infidelity or unfaithfulness is a voluntary failure to comply with tacit or explicit sexual (or, less commonly, emotional) mores, such as commitment to monogamy.

Different couples (or groups)—and even different individuals—may have different ideas of what constitutes infidelity. For example, a person may not want his or her partner flirting with anyone else, may accept that but draw the line at petting, may be comfortable with their partner having limited sexual contact or may allow them intercourse with others, or something in between; additionally, a person who identifies as heterosexual may accept his or her partner engaging in homosexual but not heterosexual acts with others, or vice versa. Infidelity within marriage is often called adultery.


Adultery is generally defined as consensual sexual intercourse by a married person with someone other than his or her lawful spouse. In many jurisdictions, an unmarried person who is sexually involved with a married person is also considered an adulterer.

The common synonym for adultery is infidelity as well as unfaithfulness or in colloquial speech, cheating. It was also known in earlier times by the legalistic term alienation of affection.

The sexual partner of a person committing adultery is often referred to in legal documents (especially divorce proceedings) as a co-respondent, while the person whose spouse has been unfaithful is often labeled a cuckold; originally, the latter term was applied only to males, but in more recent times women have been characterized in this way too. A marriage in which both spouses agree that it is acceptable to have sexual relationships with other people is termed open marriage and the resulting sexual relationships, though still adulterous, are not treated as such by the spouses.

Historically adultery has been subject to severe sanctions including the death penalty and has been grounds for divorce under fault-based divorce laws. In some places the method for punishing adultery is stoning to death. In the original Napoleonic Code, a man could ask to be divorced from his wife if she committed adultery, but the adultery of the husband was not a sufficient motive unless he had kept his concubine in the family home. In many jurisdictions (i.e, Austria, Korea, Taiwan), adultery is still illegal. In the United States, laws vary from state to state. For example, in Pennsylvania, adultery is technically punishable by 2 years of imprisonment or 18 months of treatment for insanity (for history, see Hamowy).

That being said, such statutes are typically considered blue laws, and are rarely, if ever, enforced. In the U.S. Military, adultery is a court-martialable offense only if it was “to the prejudice of good order and discipline” or of a nature to bring discredit upon the armed forces. This has been applied to cases where both partners were members of the military (and particularly where one is in command of the other), or one partner and the other´s spouse. The enforceability of criminal sanctions for adultery is very questionable in light of Supreme Court decisions since 1965 relating to privacy and sexual intimacy, and particularly in light of Lawrence v. Texas, which apparently recognized a broad constitutional right of sexual intimacy for consenting adults.

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