Zug: Adultery too widespread to be punished in divorce

Since hackers released information belonging to millions of men and women who had signed up for the adultery website Ashley Madison, commentators have suggested that we’re likely to see thousands of new divorce filings.

Unlike many states, where it is not legally relevant, adultery has significant consequences for divorce in South Carolina. Since the Ashley Madison hack has the potential to dramatically increase the number of adultery-based divorce fillings, now might be a good time to reexamine the desirability of our fault-based divorce system, particularly adultery as grounds for divorce.

South Carolina has two types of divorce, fault and no-fault. People seeking no-fault divorces do not need to provide a reason for divorce; they need simply to live apart for one year. In contrast, fault divorces are, as the name implies, based on fault, and we have four grounds: physical cruelty, habitual drunkenness or drug use, desertion and adultery. A spouse who seeks a divorce based on one of these grounds can be granted an immediate divorce and may receive a greater amount of alimony and property; a spouse who cheated is barred from receiving alimony.

Fault-based divorce is intended to punish. It is based on the idea that there are certain spousal actions so reprehensible that they should entitle the wronged spouse to a quick divorce and significant compensation. The Ashley Madison hack should make us reconsider this assumption about adultery.

Studies suggest that nearly half of all married people cheat, and thanks to the Ashley Madison hack, we may soon know whether these studies are accurate. At the same time, confirmation of widespread cheating casts doubt on the continuing logic of adultery laws. If half of all married people cheat, it seems anachronistic and unfair to treat adultery as something rare and shocking.

Fault divorce was instituted at a time when divorce was widely unavailable and adultery was believed to be rare. Ashley Madison vividly reminds us that this presumption is no longer justifiable. It is time for the state to stop punishing adultery and let couples divorce without judgment or punishment.

This story was originally published August 29, 2015 at 7:39 PM with the headline "Zug: Adultery too widespread to be punished in divorce."