Everyone Belongs to Everyone Else
Last semester, I caused a stir among the students in my family law class when I proposed a rule to be applied to the following situation. John was legally married to Jane but began a relationship with Margaret. Five years later, John divorced Jane so he could be with Margaret, although he never ended up marrying Margaret. The relationship lasted for another five years. After they broke up, Margaret sued John to enforce various agreements, both written and oral, regarding the allocation of property that they allegedly made during their ten-year relationship.
My rule would bar a mistress or paramour from introducing evidence from when her lover remained legally married unless she could prove that she did not know, and could not have known, that her lover had been married at the time. The lack of knowledge must also be objectively reasonable, meaning that an average person in her position would have been just as oblivious to her lover’s marital status as she was.
Applied to the above scenario, Margaret cannot introduce evidence of any agreements made throughout the first five years during which John was still married to Jane. As a matter of law, Margaret’s relationship with John began only after he divorced Jane. If John promised to give Margaret ten gold bars once they broke up, and the promise was made before he divorced Jane, evidence of the promise would not be admissible.
I also proposed a statute of frauds that applies specifically to domestic partnerships that started out as extramarital affairs. All property agreements made between a mistress or paramour and her lover, regardless of whether they eventually marry after divorcing their respective spouses, must be in writing to be enforceable. Equitable doctrines, which permit the enforcement of an informal promise for reasons such as providing compensation for sacrifices made in reliance on the promise, will be available only to married couples going through a divorce and domestic partners who were both unmarried at the time they began their relationship. Even if Margaret quit her job because John said she would receive ten gold bars, she cannot sue to enforce the promise unless John wrote it down.
My intent is to send a message that the law will not recognize adultery, much less allow the participants to gain financially from their conduct. The reaction was overwhelmingly negative. Some students seemed rather amused, their smirks suggesting a casual dismissal of me as perhaps too regressive for polite society. Others were more vocal about their disgust. One student accused me of harboring “patriarchal values” and a “hatred of socially unpopular groups.” Another said that “the state should not interfere with relationships based on mutual consent.”
The proposal, which is consistent with case law affirming that states possess a legitimate interest in deterring cheating, apparently speaks to my irrational prejudice towards people like John and Margaret, people who, according to one student, “should not be punished for making a difficult decision that involves complex emotions and life circumstances.” To her, the locus of empathy is not those who suffer because their spouses cheated on them, but those whose infidelity is such a “difficult decision” that the nuances should blunt any moral outrage. Did poor John fall for Margaret because he had been trapped in an unhappy marriage? Perhaps Margaret offered John the consensual love that Jane had long denied him.
One wonders whether these students like to be cheated on themselves. If not, why be so allergic to policies that combat infidelity? For that matter, why balk at any financial inconveniences a cheater might incur, particularly when they are precisely what would deter one from cheating?
These attitudes appear less perplexing in light of the growing denunciation of marriage as “patriarchal” and otherwise oppressive. In a piece for Slate magazine titled “Infidelity Isn’t a Feminist Priority,” Amanda Marcotte writes that “the real offense against feminist values” is not cheating but “a loveless, bloodless coupling created out of duty.” The fact that women also cheat means that infidelity is “one issue where men and women are pretty much in the same boat and exert a large amount of control over their futures…[and] where women give as good as they get.” Marcotte then praises no-fault divorce and hopes that “if feminists concentrate on achieving equality for women, the problem of men who feel entitled to cheat on long-suffering, trapped wives will take care of itself, because those women will get to walk away.”
Put differently, because “[men] still have more freedom to leave a bad marriage than women do,” that “loveless, bloodless coupling” is more harmful to women. Thus, while Marcotte refrains from outright advocating for adultery, she implies that until women attain the unmitigated ability to obtain a divorce, cheating might not be so culpable after all. Marcotte echoes a 2014 study finding that resentment of perceived male power is positively correlated with approval of infidelity among women who possess less power in relationships, as they “may view infidelity as a way of leveling the gendered playing field and retaliating against men’s dominance.”
Given these implications, it is no surprise that some voices explicitly celebrate infidelity. “More women than ever are navigating affairs and they feel in charge, being the one seeking sexual satisfaction. That is a former [sic] of self empowerment because they are looking for satisfying sex themselves,” says therapist Tammy Nelson. Others like Elizabeth Sheff and Ronald Den Otter devote their academic careers to redeeming practices previously considered to be illicit by grounding them in consent. Open marriages and polyamory—as long as all parties consent—are touted for their capacity to satisfy the desire for “variety, novelty and adventure.” Infidelity is reduced to a mere breach of informed consent, which could be between any number of persons in any self-designed arrangement, as opposed to a breach of monogamy. This redefinition of what it means to be faithful to one’s lover is best expressed in the decades-long open relationship between existentialist philosophers Jean-Paul Sartre and Simone de Beauvoir, the former having pledged “transparency” about his endless sexual conquests so as to earn the latter’s trust.
Knowingly or not, the aforementioned scholars and activists all endorse what sociologist Anthony Giddens calls the “pure relationship.” Giddens defines it as “a situation where a social relation is entered into for its own sake, for what can be derived by each person from a sustained association with another; and which is continued only in so far as it is thought by both parties to deliver enough satisfactions for each individual to stay within it.” The survival of the pure relationship does not depend on factors “external” to the will of the individuals involved, like religion, tradition, or societal expectations of what is morally acceptable.
The self-centered nature of the pure relationship dovetails with the philosophy of existentialism. Jean-Paul Sartre teaches that because life lacks any inherent, pre-determined meaning, a state which he calls the “absurd,” individuals must seek meaning only in themselves. Refusing to live an authentic life according to one’s own wishes is to act in “bad faith,” since pre-existing norms and institutions that contradict the self offer no meaning in their own right. Likewise, jealousy represents an attempt by the jealous to find meaning not in themselves but in the “captivity” of the persons they love. Measures to limit a partner’s access to others outside the relationship merely mask one’s low self-esteem. Sartre is clear that he does not view jealousy as anything other than pathological: “I concluded that jealousy was possessiveness. Therefore I decided never to be jealous again,” he declared after a former love interest rebuffed his pleas to stop sleeping with other men by insisting that he did not “own” her.
Today, existentialism permeates the popular discourse on romantic relationships in highly attenuated forms. A cursory search on Google will turn up countless articles on “fostering independence.” Profiling what it considers the perfect couple, one relationship coaching podcast states that “[t]his couple individually found what their purpose and passion were before they found each other. They discovered their true identities on their own and then grew together.” The advice: bonding with other humans must take a back seat to self-fulfillment. Why the two cannot occur simultaneously is never explained. If anything, the podcast warns that “[o]ne of the traps that we can fall into is looking to our spouse to fulfill us or making them responsible for our happiness and contentment. When you do that, you’re relying on someone’s personality to fulfill you instead of it coming from within…[and] that’s draining for the person who has got to supply that.”
A 2005 song titled “I Don’t Need A Man” regurgitates the same message in more vulgar terms: “I don’t need a ring around my finger to make me feel complete. So, let me break it down. I can get off when you ain’t around, oh!” By and large, this media ecosystem does not yet urge its audience to abandon all standards of decency as “absurd,” much less mimic Sartre’s lifestyle of never-ending sexual odyssey. But much like Sartre, it seems utterly averse to the notion that entities other than the self might deserve one’s primary allegiance.
Taken to its logical conclusion, the pure relationship-existentialism axis results in a future resembling Aldous Huxley’s Brave New World. Because “everyone belongs to everyone else,” there is no exclusivity; and because there is no exclusivity, there is no jealousy. In this world, Jane has no need to be upset that John left her for Margaret. Instead, she relishes in the freedom to fornicate with untold bodies, to be with whoever she wants, whenever she wants.
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