1911 Encyclopædia Britannica/Adultery

ADULTERY (from Lat. adulterium), the sexual intercourse of a married person with another than the offender’s husband or wife. Among the Greeks, and in the earlier period of Roman law, it was not adultery unless a married woman was the offender. The foundation of the later Roman law with regard to adultery was the lex Julia de adulteriis coercendis passed by Augustus about 17 B.C. (See Dig. 48. 5; Paull. Rec. Sent. ii. 26; Brisson, Ad Leg. Jul. de Adult.) In Great Britain it was reckoned a spiritual offence, that is, cognizable by the spiritual courts only. The common law took no further notice of it than to allow the party aggrieved an action of damages. In England, however, the action for “criminal conversation,” as it was called, was nominally abolished by the Matrimonial Causes Act 1857; but by the 33rd section of the same act, the husband may claim damages from one who has committed adultery with his wife in a petition for dissolution of the marriage, or for judicial separation. In Ireland the action for criminal conversation is still retained. In Scotland damages may be recovered against an adulterer in an ordinary action of damages in the civil court, and the latter may be found liable for the expenses of an action of divorce if joined with the guilty spouse as a co-defender.

Adultery on the part of the wife is, by the law of England, a ground for divorce, but on the part of the husband must be either incestuous or bigamous, or coupled with cruelty or desertion for two or more years. In the United States adultery is everywhere ground of divorce, and there is commonly no prohibition against marrying the paramour or other re-marriage by the guilty party. Even if there be such a prohibition, it would be unavailing out of the state in which the divorce was granted; marriage being a contract which, if valid where executed, is generally treated as valid everywhere. Adultery gives a cause of action for damages to the wronged husband. It is in some states a criminal offence on the part of each party to the act, for which imprisonment in the penitentiary or state prison for a term of years may be awarded.

In England, a complete divorce or dissolution of the marriage could, until the creation of the Court of Probate and Divorce, be obtained only by an act of parliament. This procedure is still pursued in the case of Irish divorces. In Scotland a complete divorce may be effected by proceedings in the Court of Session, as succeeding to the old ecclesiastical jurisdiction of the commissioners. A person divorced for adultery is, by the law of Scotland, prohibited from intermarrying with the paramour. In France, Germany, Austria and other countries in Europe, as well as in some of the states of the United States, adultery is a criminal offence, punishable by imprisonment or fine. (See Divorce.)