Adultery Provisions in Matrimonial Agreements

Can a contract discourage your spouse from cheating or compensate you for a broken heart? Adultery penalties in marriage contracts seek to do exactly that. An adultery penalty is a financial penalty in a marriage contract triggered by a spouse’s infidelity. While many practitioners advise clients against adultery provisions in marriage contracts, some clients demand them.

However, are adultery provisions enforceable? Should they be? This Article considers the sociolegal history of adultery and provides new insight into the enforceability and wisdom of adultery penalties. This Article also provides novel arguments that adultery provisions should not be enforced and calls upon courts to consider the issue more thoughtfully.