In what will be looked back upon as a landmark decision in family law in the State of New Hampshire, the New Hampshire Supreme Court redefined adultery in a decision dated April 1, 2021. In In the Matter of Molly Blaisdell and Robert Blaisdell, the Respondent appealed the dismissal of a cross-petition for divorce on the grounds of adultery. That cross petition alleged that the Petitioner, Molly Blaisdell, was involved in an ongoing intimate relationship with another woman.
Prior to this decision, the definition of adultery in the State of New Hampshire was governed by In the Matter of Blanchflower and Blanchflower, 150 N.H. 226, 227-28 (2003). That decision limited the definition of adultery under R.S.A. 458:7, II (2018), to vaginal penetration by a penis “between a married man and someone other than his wife, or between a married woman and someone other than her husband.” Blanchflower suggested that case law addressing adultery inferred that adultery meant intercourse.
The New Hampshire Supreme Court notes that since that decision in 2003, there have been numerous changes to the law both in the State of New Hampshire and by way of United States Supreme Court decision. The question presented in this case, therefore, was whether Blanchflower should be overruled given the world we live in today.
The New Hampshire Supreme Court noted that they will overrule a decision only after considering “(1) whether the rule has proven to be intolerable simply by defining practical workability; (2) whether the rule is subject to a kind of reliance that would lend a special hardship to the consequence of overruling; (3) whether related principles of law have so far developed as to have left the old rule no more than a remnant of abandoned doctrine; and (4) whether facts have so changed, or come to be seen so differently, as to have robbed the old rule of significant application or justification.” Seacoast Newspapers v. City of Portsmouth, 173 N.H. 325, 333 (2020).
Though the New Hampshire Supreme Court found that no single factor was dispositive, they concluded that three factors (1, 3, and 4) weighed in favor of overruling Blanchflower. Perhaps more important than the first half of the decision, the New Hampshire Supreme Court then issued a re-interpretation of RSA 458:7, II. “In matters of statutory interpretation, [the New Hampshire Supreme Court is] the final arbiter of the intent of the legislature as expressed in the words of the statute considered as a whole.” Petition of Carrier, 165 N.H. 719, 721 (2013).
The Court then went through a review and analysis of the existing statutory construction and definitions governing both adultery and intercourse in light of the Respondent’s point that the Court does “not construe statutes in isolation; instead, we attempt to do so in harmony with the overall statutory scheme.” Estate of Gordon-Couture v. Brown, 152 N.H. 265, 272 (2005). The Court further agreed with Respondent’s argument “that defining the term adultery to include sexual intercourse between persons of the same sex would harmonize RSA 458:7, II and RSA 457:1-a, both of which are part of the legislative scheme governing marriage,” and to do the opposite “would be to interpret those two statutes in contradiction with each other in contravention of our rules of statutory interpretation.”
The Court further stated that “interpreting RSA 458:7, II to provide that spousal infidelity may be a ground for divorce only in marriage between persons of the opposite sex is constitutionally suspect in light of the United States Supreme Court’s holding in” Obergefell v. Hodges, 135 S.Ct. 2584, 2607-08 (2015), and that a “broader definition is better suited to today’s marital legal landscape.” Therefore, the New Hampshire Supreme Court redefined adultery under RSA 458:7, II “as voluntary sexual intercourse between a married person and someone other than that person’s spouse regardless of the sex or gender of either person. Furthermore, the New Hampshire Supreme Court redefined sexual intercourse to include “heterosexual intercourse involving penetration of the vagina by the penis, and intercourse involving genital contact other than the penetration of the vagina by the penis.”
With this decision, the New Hampshire Supreme Court in no uncertain terms leaps forward to allow the law of this state to finally comport with 21st century realities of marriage and coupledom.