April 1, 2021
Reversed and remanded.
- Issue: Whether the term “adultery,” as that term is used in RSA 458:7, II (2018), is limited to sexual intercourse between persons of the opposite sex; whether “sexual intercourse” is limited to penetration of the vagina by a penis.
Husband challenged a decision of the Circuit Court granting a motion to dismiss his cross-petition for divorce on fault grounds of adultery alleging sexual intercourse between wife and another woman. Specifically, husband moved the Supreme Court to overrule In the Matter of Blanchflower & Blanchflower, 150 N.H. 226, 227-28 (2003) and reinterpret the term “adultery,” as used in RSA 458:7, II to include sexual intercourse between a married person and someone other than that person’s spouse, regardless of either person’s sex or gender.
The Supreme Court agreed with husband that, with NH’s adoption of same-sex marriage in 2009 and SCOTUS’s decision in 2015 that denial of same-sex marriage violated the Federal Constitution, the view of the institution of marriage underpinning the holding in Blanchflower had changed in the eyes of law and society. As such, it overruled Blanchflower to the extent that it limits the definition of “adultery” to sexual intercourse between persons of the opposite sex, and reinterpretated “adultery” to mean voluntary sexual intercourse between a married person and someone other than that person’s spouse, regardless of the sex or gender of either person. The Supreme Court further clarified that “sexual intercourse” includes heterosexual intercourse involving penetration of the vagina by the penis, and intercourse involving genital contact other than penetration of the vagina by a penis.
Finally, the Supreme Court ordered that the application of the decision apply retroactively.
Joshua Gordon, of Concord, for the petitioner, filed no brief. Lothstein Guerriero, PLLC, of Concord (Theodore M. Lothstein on the brief), for the respondent.