In 2003, the Supreme Court, in the case of In re: Blanchflower, defined adultery as sexual intercourse between persons of the opposite sex. On April 1, 2021, the Supreme Court overruled Blanchflower and reinterpreted the term adultery to include sexual intercourse between a married person and someone other than the person’s spouse regardless of the sex or gender.
In 2003, the Supreme Court was asked the narrow question of whether a homosexual intimate relationship between a married person and another constitutes adultery within the meaning of New Hampshire law. The Supreme Court in Blanchflower determined that based upon the crime of adultery, which has since been repealed, the term was defined as intercourse from which a spurious issue may arise. Since a “spurious” issue could not arise in a homosexual relationship, the Supreme Court held that adultery could not include an intimate relationship between a same sex couple.
In 2009, six years after Blanchflower was decided, the New Hampshire Legislature redefined marriage as a legally-recognized union between two people regardless of gender. The Legislature further recognized that grounds for divorce that existed in traditional marriages equally applied to same sex marriages. Given this, the Supreme Court concluded that the narrow decision in Blanchflower, which limited adultery to heterosexual relations, was incompatible with the redefinition of marriage.
The Supreme Court redefined adultery in light of the possibility of a same-sex relationship and held that genital contact between individuals constitutes “sexual intercourse” under the new definition of adultery. Lastly, this decision does not apply retroactively. Therefore for cases pending prior to April 1, 2021 will not be impacted by this ruling.
Andrew J. Piela is a Director at Hamblett & Kerrigan, P.A. Mr. Piela concentrates his practice in civil litigation, family law, probate and land use litigation. You can reach Attorney Piela by e-mail at [email protected].