Same-sex marriage and the future of fault grounds in New Hampshire

With the same-sex marriage bill about to come to Governor Lynch’s desk, it is an appropriate time to examine the future of fault grounds in New Hampshire. Currently, New Hampshire has both fault and no-fault grounds for divorce. Only about 1% of divorces in New Hampshire are granted on the basis of fault. Of the nine fault grounds, adultery is the most common.

Adultery in New Hampshire has a very narrow definition. For the purposes of the fault ground statute, under the Blanchflower decision,

“the term “adultery” excludes all non-coital sex acts, whether between persons of the same or opposite gender. The only distinction is that person of the same gender cannot, by definition, engage in the one act that constitutes adultery under the state.”

Furthermore, the court rejected the notion that it should expand the definition of adultery to include sexual acts other than intercourse between a man and a woman because doing so would revise the established definition of adultery beyond recognition, and “it is not the function of the judiciary to provide for present needs by an extension of past legislation.”

I was before a marital master on a temporary hearing the other day, and when the issue of fault grounds came up, he pointed out that if same-sex marriage becomes law, there will be married same-sex couples who, by virtue of their sexuality, cannot commit adultery according to the law (unless they were to cheat with an opposite-sex partner). It is an interesting predicament, and something that the legislature will need to address. The legislature will need to either revise the definition of adultery to include an expanded array of sexual acts between same-sex or opposite-sex couples, or abolish fault grounds all together. Many family law attorneys would argue for the later, pointing out that fault ground divorces cost more, take longer and interfere with parents moving forward with a good co-parenting relationship. Either way, it is time for the legislature to take action on the issue.

New Hampshire senate passes gay marriage bill

Yesterday the New Hampshire Senate passed a revised HB 436 that would allow same-sex couples to marry in New Hampshire. The bill differs from the bill the House passed, in that it makes a distinction between civil and religious marriage, and states that any couple is allowed to obtain a civil marriage. The bill is expected to be on the desk of Governor John Lynch later today or tomorrow. Governor Lynch has previously stated that he believes traditional marriage is best, although it remains to been seen whether he will veto it.

New Hampshire House to vote on gay marriage bill

This week the New Hampshire House will vote on HB 436, a bill that would legalize same sex marriage in New Hampshire and allow any civil unioned couples to obtain the legal status of marriage. Currently, Massachusetts and Connecticut are the only states that allow same sex marriage. Several states, including New Hampshire, allow same sex couples to enter into civil unions. According to a recent article in the Union Leader, Govenor Lynch, who supported civil unions, opposes gay marriage.