Fault and Fidelity in Same-Sex Marriages

Last night’s episode of Brothers & Sisters featured a difficult conversation between the gay spouses — starting with a discussion of whether to accept a foster child into their family (after their surrogacy efforts failed), and then leading into a disclosure by one of them of a breach of their monogamy commitment. The preview of next week’s show indicates that the admitted infidelity may will lead to an unraveling of their marriage.

Discussions of who is at fault for the failure to become parents and the consequences of an admitted tryst are fairly new to gay male relationships. Interestingly, a recent study at UCSF indicated that 50% of male couples have “negotiated non-monogamy,” which means not only that the non-monogamy is agreed to, but the limits and terms of such activities are also specifically negotiated. While some straight observers may be offended at this percentage, to many others a 50% non-monogamy rate would indicate a dramatic INCREASE in the percentage of monogamous couples! It’s likely that for many lesbian couples the monogamy percentages are higher, and the growing number of children in lesbian households and the higher frequency of marriage or partnership registration (3 to 1 relative to gay men, for example, in California) is likely to result in a greater number of complaints about an admitted infidelity.

Apart from what the sociologists or therapists might have to say, as a lawyer there are two questions that immediately arise in this context.

First, what does it mean to have an agreement for monogamy? Is it a true “contract” or merely an unstated or vaguely voiced expectation? And, since there is no god of contracts that comes down from the sky to preclude a breach of any contract, what does it really mean to enter into such a contract? Is it meant to be a limitation on future behavior, or rather, is it merely a statement of the state-of-mind of the partners at the time they express those intentions? A commitment can be an honest statement of intentions, without rising to the level of a contract that could be enforced, with penalties for non-compliance.

And second, to the extent there really was a contractual agreement, what is the appropriate remedy for its breach? Except in highly unusual settings courts will not enforce such contracts. Unlike the 19th century rules there is no legal obligation of sexual fidelity in a marriage in most states nowadays, and very few states even take such allegations into account in a distribution of assets or property (the marital rules generally are “no fault” rules). Thus, other than a strong sense of outrage and a fervent desire to punish the offending party, there isn’t much of a “remedy” available for breaches of this contract.

And so, one wonders, of what benefit is the invocation of a contractual framework?

Similar issues arise with the notion of fault in a break-up. In almost every dissolution where fault is alleged, the identified “faulter” will have a passionate defense, usually blaming the accuser for some conduct in the past that resulted in the alleged fault. Indeed, most affairs are related, at least indirectly, to underlying problems in the relationship that are being worked out through an affair. And, unlike the 19th century rules (where the one at fault could be punished financially or be restricted as to when he could remarry), marital rules these days disregard any fault factor in just about every state.

To my mind, the contractual framework is not the right one to use. Rather, one should focus on the most important values in a lasting relationship: honesty, commitment, loyalty, kindness, and enduring affection. An affair that is undertaken in secret is likely to be at odds with those values, regardless of whether or not an agreement was ever made — whereas an open discussion of extra-marital sexual desires (or involvements) can, and should, be handled in a manner that honors these important relationship values. Ideally the discussion should happen before the offending action occurs, and most importantly, the discussions must allow the other partner an equal level of participation in the resolution of the conflicts — before any affair has commenced. Only then can there be a truly “negotiated” agreement about outside sexual activities.

Monogamy is not legally required for any marriage, same-sex or different-sex, and fault is not relevant to the marital law rules — and so the issue of monogamy should not be framed in legalistic terms. It’s more a matter of loyalty, affection, dedication and honesty — and those are the values that should guide these challenging questions.