What Role Does the Law Play in Love?

It could be argued that the set of laws in any land signify what is truly important for the peace and prosperity of its people. This is because the resources required to create and uphold laws are significant. In modern democracies, there are piles of paperwork prepared and sometimes years of niggly negotiations to get the bill documented and ready for debate. Suppose sufficient support is gained and the command is codified. In that case, more hard work is required to establish compliance systems, enforcement entities and prosecution processes. One would presume this investment of time, money, and energy would not be made for spurious or superficial goals. Taking this approach then, we can assume that statutes related to sexual exclusivity, such as monogamous marriage, a ban on bigamy and arraignments for adultery exist to ensure the safety of its citizens and sustain society’s success.

The Limitations of Legislation

However, unlike the God that handed down the commandments, lawmakers are imperfect humans. Therefore domestic decrees need to be considered in this constrained context. While those deciding the laws are usually elected representatives, they do not necessarily represent the diversity of the population. The wisdom of women, First Nations peoples, and those with alternative religions, sexualities and accessibility needs are largely absent on the parliament floor during debates and decision-making. In this way, our laws are still primarily what old, rich, able-bodied, Christian white guys believe is good for society, and of course, for perpetuating their privilege and patriarchal power.

It is also fair to say that the cumbersome and protracted process of law-making results in regulations that are no longer relevant. Most of the time, commercialist needs, and community consensus are sufficient to remove redundant ones. For example, you will no longer find any laws banning trade on the Sabbath. Instead, the weekends are now seen as invaluable consumer shopping opportunities and revenue prospects for retailers. And in the United States, there hasn’t been a conviction for blasphemy (making wrongful use of the name of the Lord) since 1928, with most states repealing these laws, preferring to support the free speech clause in the Bill of Rights.

Some still fall through the cracks, though, perhaps due to the belief it is easier to let them stand and be gnawed away by the tooth of time than to go through the legislative rigmarole to repeal them. The term used for the process of laws falling into disuse is desuetude. As our lifestyles change, some actions legislated against just never happen. And then, the longer it has been since breaches have been prosecuted, the harder it is to find any recent or relevant precedent for punishment. If an offence does occur, law enforcement officers are less likely to take them to court if there is little chance of a successful prosecution. This means the law fades into obscurity.

For example, some offences you don’t hear about people being indicted for these days include flying a kite to the annoyance of any person in a public place, singing an obscene song, ringing a doorbell without a reasonable excuse, cleaning up seabird poo without a licence, challenging another person to a duel, or possessing more than 50 kilograms of potatoes. While I am not interested in testing the efficacy of the enforcement mechanisms for these offences, I am keenly tempted to carry out some unauthorised rain-making operations declared illegal by the Rain-Making Control Act of Victoria (1967). I wonder, does beating a drum and skipping around stark-naked count? There is only one way to find out!

When Laws Make Morality Messy

The more troubling case is when changes to laws create, rather than abate moral conflicts. In this way, legislation can create confusion in the mind of the citizens about what is truly important. Two cases are relevant to our modern, intimate relationships.

1. The Australian Sex Discrimination Act (1984) prohibits discrimination against people based on sex, sexual orientation, gender identity, intersex status, and marital or relationship status. This Act makes it clear a person should be able to live as bi-sexual or polyamorous without impediment. However, under the Marriage Act (1961), a person can only be married to one other or risk being charged under the laws of bigamy and potentially imprisoned for five years. Does it appear then that the federal government is discriminating against people in terms of both sexual orientation and relationship status? This situation suggests that people are free to live lives true to their own sexuality and relationship values. However, they will not be supported to formalise these authentic relationships. So in the eyes of the law, their moral choices and relationships will be viewed as inferior. On one hand the law tells us that the moral foundations of liberty and care are paramount. And yet on the other, they are restricted by the need to uphold the moral foundations of authority and sanctity.

2. Similarly, the Australian Marriage Act states that marriage is “the union of two people to the exclusion of all others, voluntarily entered into for life.”. Nevertheless, in 1994 the Australian laws around adultery were repealed. So while the government tells us that marriage should ideally not involve any other parties in their sexual union, the laws suggest they actually don’t care whether extra-couple copulation is occurring. The state stipulates that fidelity should be a feature of your marital union but then leaves loyalty to spousal self-regulation. In this way, the lack of laws in this area creates mixed messages in that it appears while authorities are pushing for purity, they both expect and tolerate adultery. In this case, lawmakers make the couple sign up to the moral foundation of fairness and loyalty but have chosen then not to use their levers of behaviour modification to uphold it.

These two examples illustrate an interesting tussle across the moral foundations that reflects the moral dilemmas of monogamy we covered in Chapter 5. As societies move further away from the religious dogmas on which they were founded and progress further into individualism, governments have been forced to back out of the private lives of their people. The term ‘Nanny State’ has become a derogatory term used to describe those regimes that excessively interfere in the lives of their people and create an unnecessarily burdensome regulatory regime. This creates a thought-provoking tension for social administrators as they are compelled to consider what values are important enough for it to enforce and which they feel can risk being frittered away by the foibles of the common folk.

Adultery Laws

Adultery is an issue where there are divergent judgements across jurisdictions about the appropriate level of legislation and law enforcement. In some states and nations, extra-couple copulation is still treated as a crime, whereas in others infidelity is ignored by the law.

The differing opinions regarding the treatment of adultery are no clearer observed then in the USA. Unlike the name suggests, the United States has various conflicting views regarding adultery. In recent years, several states have decided to no longer interfere in the issue of infidelity and repealed their adultery laws. These states include New Hampshire, Colorado, and West Virginia. Additionally, the states of Texas, Connecticut, Alaska, Arkansas, Iowa, Kentucky, Nebraska, Nevada, New Jersey, Oklahoma, Oregon, Vermont, and California have no-fault-based divorce systems, meaning that adultery is not considered illegal in divorce proceedings.

In contrast, in other states, adultery is still considered illegal, with some states even prosecuting it as a criminal offence. This may be due to the continued high level of Christian influence in these areas[1]. While, for example, in New York, adultery is considered a Class B misdemeanour, in Michigan, the adulterer can be fined $5,000 and jailed for up to four years. In South Carolina, the punishment is more lenient, with a fine of only $500 and imprisonment for one year.

The good news is that where criminal penalties do exist, they are not often enforced. Instead, intimate indiscretions are used by the wronged spouse to progress a fault-based divorce. They may be used to disfavour the adulterer in a property settlement, alimony and child custody decisions. Moreover, in certain states, adultery also provides the aggrieved party the opportunity to seek retribution under civil homewrecking laws. In Hawaii, Illinois, Mississippi, New Mexico, North Carolina, South Dakota, or Utah, a person committing adultery may be liable for damages under statutes known as ‘homewrecker’ or ‘heart balm’ laws. And the damages may be extreme. In 2011 an aggrieved wife sued her husband’s lover for ‘alienation of affection’ and was awarded $30 million in compensation. In 2010 a jury awarded a wife $9 million from her cheating husband’s mistress after finding that the other woman ruined her 33-year marriage.

The upshot in the United States is that the law’s role in monogamy depends very much on where you live. In some states, if you break your vow of sexual exclusivity, there may be no material consequence (although there will always be significant psychological and relationship ones). In others, you could pay heavily for breaking the bonds of marriage as your spouse uses the court system to seek personal and pecuniary payback.

Unlike the mixed approach in the USA, the United Kingdom and Australia have systems of no-fault divorce at a federal level. Australia was a leader in stepping out of people’s private lives, implementing the no-fault divorce approach in 1975. In 1994, laws were also enacted to declare that sexual conduct between consenting adults (18 years or older) is their own personal and private matter, irrespective of marital status. There are no homewrecking laws either, so adultery then is an issue for the couple to manage as they see fit and without interference or direction from the government. The United Kingdom was a little later to the party, only instigating a no-fault divorce system in 2022. Now the only ground for divorce in the UK is the irretrievable breakdown of the relationship. Claims of or the actual occurrence of infidelity now play no role in the separation process and do not influence the division of assets and child custody.

What Constitutes Adultery?

For those jurisdictions where cheating is still a crime, how do you know when it has occurred? We covered the intricacies of infidelity in Chapter 1, but now let’s look at it through a legal lens. It is fair to say that legalising same-sex marriage has introduced a conundrum with how the law defines adultery. The state of New York defines adultery as sexual intercourse with someone other than the person’s legal spouse. The dictionary definition of intercourse is contact. So on the surface it appears that these laws would cover contact between the genitalia of any gender combination and seemingly supports same-sex unions. However, the actual definition of sexual intercourse in the New York penal code is an “act that includes any penetration of the female sex organ by the male sex organ.”[2]

The restricted definition makes it impossible for same-sex couples to take advantage of any adultery clauses in separation statutes unless their partner’s infidelity was conducted with a person of the opposite sex. Until the introduction of the no-fault divorce process in 2022, this definition of sexual intercourse was also found in the UK, where the law specified adultery as a husband or wife having sexual intercourse with someone of the opposite sex.

Perhaps governments are removing themselves from the bedroom in recognition of the complexity involved in determining when adultery occurs. It is relatively easy for traditional heterosexual relationships. You simply define adultery as the act of penis-in-vagina sex. (Nevertheless, my mind boggles with the burden of proof for this accusation.) But how do you define sexual intercourse for same-sex couples? And what do you do about all of those other acts of intimacy that could be considered cheating but do not meet the definition of adultery? What about oral sex or mutual masturbation? What about great feelings of longing, desire and love? Well, it appears many modern governments are sensible enough not to get involved in this dilemma! They leave this one well and truly alone, for there are far too many grey areas regarding physical and emotional intimacy.

Marriage Laws

While there still may be some disparity in laws enforcing sexual exclusivity (and punishing infidelity), in western nations, there appears to be a universal commitment to prohibiting polygamy. And despite recently broadening the definition of marriage to same-sex couples, there seems very little appetite to enlarge the institution to embrace more than two people.

Having more than one legal spouse is committing the offence of bigamy. In Australia, this can carry a maximum penalty of five years imprisonment. In the United Kingdom, the prison sentence is up to a maximum of seven years. Note that this offence only occurs if an attempt to contract a legally recognised marriage exists. People can live in polyamorous relationships but cross the legal line if they attempt to formalise them under the law.

We see movement in law, though, in the decriminalisation of bigamy. For many states in America, just like in Australia and the UK, polygamy is also a crime punishable by fines, imprisonment, or both. However, in 2020 the state of Utah passed a bill reducing the penalty for polygamy from a felony to an infraction which holds similar penalties to a speeding ticket[3]. So, while having more than one legal spouse is still illegal, it is viewed as a much lesser moral failure.

This was an important step forward for a community that, thanks to its Mormon pioneers, had a long history with plural marriages. Softening sanctions has allowed for greater honesty and inclusivity of lifestyles. It has also provided greater support for those suffering from domestic violence in polygamist relationships, who now no longer have to fear criminal penalties on top of their personal trauma.

I am constantly in awe that despite how much our society has shifted over the recent decades, the institution of marriage is still seen to be the ultimate expression of love. While so many couples choose not to worry about weddings, marriage still appears to formalise the love in the eyes of the couple and society. Describing your relationship as de facto can still denigrate the quality of the connection in the eyes of the couple and of the community in which they live.

The public power vested in the institution of marriage is evident in the petition by the Polyamory Action Lobby to the Australian federal parliament in 2013. It stated:

“For too long has Australia denied people the right to marry the ones they care about. We find this abhorrent. We believe that everyone should be allowed to marry their partners, and that the law should never be a barrier to love. And that’s why we demand nothing less than the full recognition of polyamorous families.”[4]

For those who have chosen the path of alternative intimate relationships, the law has a very important role to play — validating and supporting their freedom and their families.

Do the laws work?

It does not look like the Polyamory Action Lobby will have success in their plight any time soon. There is an ingrained public perception that polygamy is bad for society and monogamy is the gold standard of morality. One reason is that polygamy has been traditionally associated with the abuse of women and children, and politicians are averse to being linked with arrangements tainted by exploitation and mistreatment.

This line of argument implies that monogamy is a morally superior relationship model that prevents violence against women and children. What a load of rubbish. Within monogamous relationships, we are witnessing a continual escalation in family and domestic violence, with the victims predominantly females[5]. In 2021–22, domestic violence caused almost 73,000 to seek assistance from homeless services[6] and on average, every nine days, a woman was killed by a current or former partner[7]. These statistics sadly acknowledge that exploitation and mistreatment are found in monogamous, state-sanctioned relationships as well.

Governments have also professed the following three imperatives to justify prohibitions against adultery and bigamy:

1. the preservation of the institution of marriage

2. the prevention of disease and illegitimate children

3. safeguarding of general community morals.

We can safely claim the law has failed to preserve the institution of marriage. As the following graphs show, there is a palpable trend away from marriage and an increased reliance on registered relationships.

The legalisation of divorce and the latter introduction of no-fault fractures has practically made the institution of marriage irrelevant. As discussed by Adam Phillips, it inserts a get-out clause into the marriage contract, nullifying its magnitude and minimising the consequences of failure. He states that no-fault divorce delivers:

“optimism in assuming that better things may be coming down the line. If get-out clauses lack commitment, they also underwrite and openness about the future. My get-out clause, contracted publicly, or reassuringly affirmed in the apparent privacy of my own mind, is my uncertainty about my own desire. Only God, presumably, has no need of such things.”[8]

Liberal attitudes towards divorce erode the goal of maintaining the importance of marriage. So while, under the legislation, marriage is an arrangement entered into for life, we all really know that this mandate is meaningless. In this way, it is the lawmakers themselves that have decried the sanctity of this once sacred institution.

The belief that monogamy prevented disease and illegitimate children is also an archaic notion, relevant only in those days when your first and last sexual encounters were with your spouse. Nowadays, before promises of sexual exclusivity, people of all sexual persuasions are technically free to be as promiscuous as their principles allow. With the median age of marriage now around the mid-30s, this creates a large space for sleeping around, sharing STDs and surprise pregnancies. The statistics also show that adultery is still prevalent despite people committing to enter marriage to the exclusion of all others. So much so that governments have given up on their ability to enforce fidelity. Removing laws around adultery has unlikely fuelled an upsurge in cheating but merely facilitated a reduction in the profits of lawyers seeking advantage from a spouse’s lust for revenge.

I would also present the prevalence of pornography as an example of how laws around adultery and bigamy have very little influence over modern-day community morals. Internet porn has much more authority over our intimate lives than our consideration of whether a decision to break vows may result in a legal penalty. It is the height of hypocrisy to condone (through inaction) the violent and oppressive modern pornography that leads to disrespectful relationships and domestic violence while telling others that they cannot formalise relationships with people they love.

The laws confuse marriage with morality. They fail to recognise that within many legal marriages, there is immorality, as spouses are abused, oppressed and subjected to coercive control and violence. They also fail to recognise that many ‘illegal’ relationships are founded upon deep respect, love and care. Legal marriages are not necessarily more loving than those insinuated to be immoral. Therefore, perhaps the precious time of our power brokers would be better spent on finding ways to nurture respectful relationships rather than quibble over the form they take.

Compliance or Character-Building?

To a large extent, legislators have decided they have no role to play in individuals’ intimate lives. Apart from bans on bigamy and constraints around criminal offences such as deprivation of liberty and violence, there is not much two or more consenting adults cannot experiment with. Where the law does connect with coupledom, though, there is confusion. It certainly does not help me resolve the moral conflicts discussed previously.

· The law tells me I can only legally marry one person, but I am free to love many more. So I am left wondering what is more important, my liberty to love or honouring the spirit of the law?

· The law tells me that if I marry, I am joining myself with another for life. Yet I know that thanks to no-fault divorce, there is a built-in get-out clause if a better option arises in the future. So again, what is more important, loyalty to the law or being faithful to my freedom?

· And while under the law, there will be no penalties if I choose to undertake adultery, I know that this does not mean my decision is without serious consequences. I may not be punished through the courts, but I will be by my conscience.

In this way, the laws reflect the complexity of our competing needs; to fit in and yet be fully ourselves, to be part of a society and yet true to our unique spirits. Ultimately, we cannot look to the law to help us decide which moral foundation is most important for us. We must put the hard work into building our character, creating respectful relationships and identifying our idiosyncratic ideals of love. For not everything that is legislated is important, and not everything important can be legislated.[9].

[1] PRRI. (2022, June 2). The 2020 Census of American Religion — PRRI. https://www.prri.org/research/2020-census-of-american-religion/

[2] IC 35–31.5–2–302

[3] Associated Press. (2022, April 24). After Utah Decriminalized Polygamy, Some See a Culture Shift. US News & World Report. https://www.usnews.com/news/best-states/utah/articles/2022-04-24/after-utah-decriminalized-polygamy-some-see-a-culture-shift

[4] “Polyamory Action Lobby”. Hansard: Australian Parliament House. 28 February 2013. Retrieved 1 October 2015.

[5] Family, domestic and sexual violence data in Australia , Crime rates for family and domestic violence — Australian Institute of Health and Welfare (aihw.gov.au)

[6] AIHW, (2021): AIHW (2022): Specialist homelessness services annual report 2021–22.

[7] AIHW (2019): Family, domestic and sexual violence in Australia: continuing the national story 2019. Canberra: AIHW

[8] Phillips, A. (2012). Missing Out: In Praise of the Unlived Life. Penguin UK.

[9] Adapted from a quote by Cameron, W. B. (1963). Informal Sociology: A Casual Introduction to Sociological Thinking.