Is "consent" a Defense to Adultery? Texas Adultery Laws

Do you and your spouse have a "celebrity hall-pass" list? If so, then you're in an "Open Marriage." Even if you both agree to these extramarital affairs, are they still considered Adultery? Chapters: 00:00 – Ethically Non-Monogamous Marriages? 00:17 – Are open marriages legal? 01:15 – Is it still adultery? 02:45 – Defenses to Adultery? 04:25 – Will I Lose My Kids? 05:58 – What Should I Do To Prevent This Tragedy? Also find our content on: Facebook.com/MatthewHarrisLaw Instagram - @Matthew_Harris_Law Google Maps – https://g.page/MatthewHarrisLaw Website - https://matthewharrislaw.com/ How does the law treat open marriages? Whether spouses have a “free pass” list, one spouse gets a hall pass, or the spouses engage in polyamory, swinging, swapping, or polygamy, they are engaging in open marriages. Let’s discuss ethically non-monogamous marriages, aka open marriages. Are open marriages legal? There are plenty of societal changes that do not yet have any legal guidelines for when problems arise. While everything is going fine in an open or ethically non-monogamous marriage, there is no need to really worry about consequences. However, things can get complex fast when problems arise. The first question you may have is: what is an open or ethically non-monogamous marriage? The general implication for being open or ethically non-monogamous is that one or both persons within the marriage are having an intimate or dating relationship with at least one person outside of the marriage that is accepted behavior by both parties to the marriage. The sticky issue is that the laws for the State of Texas and the Federal Government do not address open or ethically non-monogamous marriages with any legal guidelines or definitions. There are no protections provided by either which would give clear guidance on the outcome of any legal issue that arises because of a dispute within an open or ethically non-monogamous marriage. Is it still adultery? If your spouse is cool with you engaging in some extracurricular activities, is it still adultery? Yes. While the Texas Family Code does not define adultery, Texas caselaw has established that “adultery means the ‘voluntary sexual intercourse of a married person with one not the spouse.’” Again, this does not automatically cause a legal issue as there is no civil or criminal penalty for it in Texas. However, serious complications can arise during a divorce when someone has committed adultery. Texas allows for “no-fault” divorces, which just means that proving one spouse is at fault for the break-up of the marriage isn’t necessary. However, if one side pleads a fault ground, the court may consider this in awarding a disproportionate share of the marital estate to the non-offending spouse. “The court may grant a divorce in favor of one spouse if the other spouse has committed adultery.” According to the definition provided by case law in Texas, any form of voluntary sexual intercourse outside of one’s spouse is automatically adultery and may be considered by the judge deciding the divorce. While there may have been an agreement between the parties, this can devolve into a muddy mess if one side rescinds their acceptance. Additional difficulties may arise within an open or ethically non-monogamous marriage when one spouse exceeds the boundaries set within the relationship. Remember, the law states that all voluntary sexual intercourse outside of one’s spouse is adultery regardless of the relationship boundaries set by the couple. Defenses to Adultery? Things get dicey when one spouse changes their mind about the openness of the marriage and divorce proceedings commence. When facing a divorce under these circumstances it may explode and spiral into a “us versus them” dogfight. In a dogfight, everyone has a tendency to drag everything private to the light either to attack the other side or defend themselves. The Texas Family Code states: “(a) The defenses to a suit for divorce of recrimination and adultery are abolished. (b) Condonation is a defense to a suit for divorce only if the court finds that there is a reasonable expectation of reconciliation.” —See Tex. Fam. Code § 6.008 Defenses This clearly shows that the legislature does not view adultery as having a defense. As written, it takes all individuals seeking to have amicable open or otherwise ethically non-monogamous marriage, and groups them with secret philanderers. This creates a loophole for any partner within the marriage who feels slighted to exploit for their own financial gain. For the second part, condonation is defined as a victim's express or implied forgiveness of an offense, especially by treating the offender as if there had been no offense. One spouse may express or imply forgiveness of a marital offense by resuming marital life and sexual intimacy. For example, one spouse might impliedly forgive the other... Music: Shadows – Anno Domini Beats Music provided via YouTube Studio Audio Library