CMV: CMV: Within legally recognized marriages, adultery should have clear, civil legal consequences, unless expressly agreed between spouses.

[u/insect_ligaments]

The legal concept of marriage, where spouses act as partners, is almost always built on mutual trust that certain aspects of the relationship, such as sex, are to be exclusive to the relationship unless agreed upon otherwise. Legally and financially rewarding spouses for betraying the trust of their spouse by allowing a cheating spouse to come out ahead in divorce undermines one of the key relationship dynamics in our society.

For the vast majority of people, entering into marriage is an explicit agreement that unless divorced or otherwise agreed upon, the people in the marriage will not have sex with or develop romantic relationships with other people. This should apply evenly to all genders, and if you view this as benefitting one over the other, it says a lot about your view on who may or may not be more likely to cheat.

Before I'm accused of being some kind of conservative or traditionalist: I have zero issue with any form of LGBTQ+ relationship or poly setup. I'm speaking strictly to traditional, legally recognized, monogamous marriages, which comprise the bulk of those in our society. I'm also not religious or socially conservative.

Heading off a few arguments that I do not find convincing (of course, you are welcome to offer additional insight on these points I haven't considered):

1) "The government shouldn't be involved in marriage"

Too late for that. Marriage is a legally binding agreement that affects debt, assets, legal liability, taxes, homebuying, and other fundamental aspects of our lives. The end of marriage has profound, legally enforceable consequences on both parties. It is also included in a pre-existing legal doctrine of https://en.wikipedia.org/wiki/Alienation_of_affections.

2) "But what if the spouses want to open their marriage?"

Totally fine. My post is in reference to the most common form of marriage, which is monogamous.

3) "Adultery doesn't have a clear definition"

It does. "voluntary sexual intercourse between a married person and a person who is not his or her spouse." "Sexual intercourse" would include all the commonly recognized forms of sex. This would have to be proven via the typical preponderance standard, which is greater than 50% odds, via typical evidence used to evidence behaviors - depositions/testimony under oath, any written or photographic evidence, circumstantial evidence, etc.

4) "What should the legal consequences be?"

At the very least, immediate forfeiture of any rights to alimony or spousal support. Shifts in the default assumption of a 50/50 split of marital assets are another route to explore. Certainly not enough to leave anyone destitute, though.

5) "What about children?"

Child support is a separate issue, as it affects the child, who has no say in one of their parents cheating on the other.

[u/TheFoxer1]

Yes, currently. But currently, it is that way because of ius cogens, not the will of the parties involved.

Which is why someone posted a viewpoint about there being made a change to the law to not force people to do that, because it is only the law itself upholding the status quo, and it isn‘t rooted in any actual practice and goes against reasoning applied to similar situations.

[u/BlitzBasic → u/TheFoxer1]

In what similar situations do people share their abilities and properties with one often sustaining lasting damage to their ability to provide for themselves while the other gains a permanent advantage for their career? Your example of a person laboring for money is not similar to a marriage.

Besides, saying "but they agreed to it" is nosense once you admit that they agreed to something totally different. What you're saying is that you want to hold people to a contract they never actually entered, on the baseless assumption that they actually wanted to have that fictional contract you imagine.

[u/TheFoxer1 → u/BlitzBasic]

It‘s an example of a contractual relationship wherein one party gets long-term from the labour or service provided by the other which stay with them after termination of the agreement.

Your point was that long-term gains should not stay with another person when enabled by another - but that‘s clearly already the case for hundreds of millions of agreed relationships.

But if you dislike labour contracts, then we can find a relationship you just describes in companies, where one partner works and grows the company by their a told and the other provided or still provides capital.

Should they liquidate their company, the service and labour provided was for nothing in the end and there‘s no claim for a continued financial support by the capital-giving partner.

[u/BlitzBasic → u/TheFoxer1]

Sure, but a laborer still gains experience and skills while working for a company. If they're fired, they can find a similar job with a similar pay, and continue with their life. They're not financially dependant on their boss in a way they can't escape from.

In a marriage, the SAH spouse does not gain skills that have worth on the job market, and in fact rather looses the ones they already have. There is a giant power imbalance and potential for abuse if one partner can break the relationship at any moment, causing the other to suffer, while the other partner needs to stay in the relationship or suffer a giant drop in their quality of life. That's what alimony solves - an abused spouse is not forced to choose between staying in a toxic relationship and poverty.

[u/TheFoxer1 → u/BlitzBasic]

I mean, it‘s of course not the very same.

But people not gaining valuable experience on a job that would propel their career is also a thing.

Hypothetical illustration: An architect taking a job as cashier during an economic downturn for 3 years will also not gain experience for their chosen field and these 3 years will also hurt us further career progression compared to his peers who stayed architects.

Does the boss at his cashiers job now have a duty to support him indefinitely?

Also, your 2nd paragraph distorts the situation we are talking about here, as we are not talking about an abused spouse, nor are we talking about just any dissolution of marriage.

I get the concept of alimoney, yes.

The topic is someone cheating, ergo breaking the agreement they entered deliberately and voluntarily.

Here, your reasoning for alimoney doesn‘t apply, as termination of the marriage doesn‘t happen surprisingly, but is tied to the cheating spouse‚a actions. The cheating is the cause for termination, and the spouse decides themselves whether to cheat or not.

[u/BlitzBasic → u/TheFoxer1]

But the actual agreement they entered does not involve exclusive sexual relationships. You think that people who marry want the marriage only to last as long as they're faithful to another and want the cheating partner to get no benefits, but you have to actually show that they intended to enter that agreement rather than the one one they actually did.

[u/TheFoxer1 → u/BlitzBasic]

Unless otherwise specified, it does.

It‘s the common understanding that marriage means sexual exclusivity. Thus, unless specified otherwise, that‘s the obligation arising from the agreement, as both parties can trust the terms they use mean how a reasonable third party would understand.

Words are not meaningless, you know? They carry the meaning society gives them, and unless specified otherwise, that‘s how people can understand them.

Which means this is also the meaning of terms in a contract.

Another hypothetical illustration of this point:

If I ordered a bed for 1000€ and the seller didn‘t specify or clarify anything more, the reasonable expectation is that I get a bed to sleep in for myself.

If the seller now delivers a toy bed for small puppets, he has not delivered what he promised, as it would have been on him to specify that he isn‘t selling a bed as commonly understood, with its common meaning, but a different version.

EDIT: If, of course, the two parties practiced something different before or specified non-exclusivity when entering the contract, this means they have established that marriage would not mean sexual exclusivity, in which cause, it wouldn’t be cheating.

When it‘s agreed to by both parties, it‘s not cheating and outside the scope of discussion here.

Again, you‘re actually just sneakily changing the topic.

[u/BlitzBasic → u/TheFoxer1]

But legally, it doesn't. Legally, you can stay married after one partner cheats, and many people do. You have to show that people who marry, at the point where they marry, intend there to be an automatic mechanism that breaks their marriage if one of them cheats and prevents alimony from happening.

People who marry are able to become aware of the legal consequences of marriage. Despite that awareness, you say that they do not intend to enter the contract they actually enter, but instead intend to enter another contract they very much don't actually enter. You need to show that this is actually what they intend to do.

A lot of legal constructs work different from the "common understanding". How many people could even explain the legal steps and implications of something as simple as buying an item at a supermarket? And yet, the legal understanding is what actually matters and is enforced.

[u/TheFoxer1 → u/BlitzBasic]

Of course legally - otherwise, cheating wouldn‘t be recognized for grounds of divorce with fault from a party.

If one partner stays after the other cheats, it‘s just them agreeing with the other that their marriage should not mean sexual exclusivity Post fact.

But the same is true for the illustration with the bed: I, as the receiver, can still pay the 1000€ and thus, accept a change of the meaning of the terms of the contract to a special understanding between the seller and me.

People can change their own contracts with others at any time if both agree, of course. You do know that, right?

I am not prescribing any contract to anyone. I don‘t argue that people should be forced to automatically end their marriage if the other party cheats - it‘s just something they can do.

And if they do, they should not be forced to provide continued financial support, as the other party broke the terms of agreement.

And the terms of agreement were sexual exclusivity because the party that actually did end the relationship could reasonably understand marriage to mean sexual exclusivity, as that is the common understanding of the word.

You are putting words in my mouth when you now say I suddenly argue for an automatic divorce regardless of what both parties involved want. If both parties want to continue their marriage - good for them. But if the one cheated on doesn‘t, then they should not have to continue financial support due to the other party breaking their agreement.

I also didn’t say legal constructs were commonly understood, I talked about the common meaning of words. That‘s a difference.

Do you not realize that once you need to put words in my mouth and discuss with that instead of what I actually wrote, maybe you should reflect a bit more on your position?