Non-Monogamy and the Law
Review of Arizona
State Category: Friendly
Issue and Rule:
This is an assessment of the legal liability that non-monogamous families encounter through Arizona’s bigamy law. The primary rule governing bigamy in Arizona is statute 13-3606 3 governing the individual with multiple marriages, and 13-36078 governing the individual whom marries someone who’s already married. Punishments are governed by rules 13-7026 (imprisonment) and 13-8014 (fines).
Arizona’s bigamy law is very explicit about only impacting those who have an actual marriage, there is no purportation or cohabitation clause in Arizona’s bigamy law3, 8. Arizona case law also provides some clarity to what they define as a marriage, indicating that a signed document is required for a marriage to be official, though submitting that document to the state isn’t a requirement10.
Though the state cannot act directly on non-monogamous families, due to these provisions, if the individual has a state position with authority regarding the law that agency can dismiss said individual for non-monogamous behavior2.
In the event that a bigamous marriage actually exists and is prosecuted on, punishment can range from ½ a year to a year and a half of imprisonment6, as well as a fine of up to $150,0004.
Because of the strict interpretation of a marriage, liability for non-monogamous families under bigamy is minimal, with only an actual second marriage creating liability. Provided that a second actual marriage can be avoided, direct impact is nonexistent. Unfortunately this doesn’t extend to jobs which require a non-monogamist to uphold the law, as the appearance of non-monogamy can endanger one’s job.
Issue and Rule:
This is an assessment of the legal liability that non-monogamous families encounter through Arizona’s adultery law. The primary rule governing adultery in Arizona is statute 13-14081, with 13-7079 (imprisonment) and 13-8025 (fines) governing punishment.
Adultery in Arizona is hampered by the state being unable to directly prosecute; an adultery case can only be brought at the behest of the offended spouse1. Beyond this, only the act of having sex with someone who’s not one’s spouse is required to meet liability under adultery1, it is not required to have a regular recurring sexual relationship.
Despite the social stigma around adultery, it cannot, in its own right, be used as evidence of unfit parenthood in child custody cases. It must be demonstrated that the adultery actually had a harmful impact on the children7.
Though adultery could impact all non-monogamous families, because the state can’t directly prosecute severely limits the potential impact of Arizona’s adultery law. This is especially true given how adultery in itself isn’t sufficient evidence of misconduct. Unfortunately the presence of the law in this format shifts the focus away from the state and on to the members of the non-monogamous family by giving a spouse authority to initiate a prosecution through the state. This can strain these families, even without the direct threat from the state as an outside entity.
The specificity of Arizona’s bigamy law, and offended spouse requirement of its adultery law create a fairly low direct liability environment for non-monogamists of all varieties. Unfortunately, because of how these laws feed into other situations, such as some state jobs and the pressures that the spouse requirement create, there are strong secondary impacts from Arizona’s laws that can create undue stressors on a non-monogamous family.
There also does seem to be an inherent conflict between Arizona case law on bigamy, allowing for a state agency to dismiss certain employees based not on them actually violating their bigamy law, but the appearance of such, and Arizona’s adultery law which dismisses adultery as harmful without having evidence as such. The core question at stake here is can these behaviors be used to qualify other, potentially discriminatory, actions? Arizona seems to say that in the case of long-standing non-monogamous sexual relationships as a lifestyle, yes, and in the case of more casual sexual relationships, no. This is an exaggeration, but is also a logical extension of potential arguments based on what law does exist in Arizona on these issues.
Arizona’s bigamy law is very straightforward. In only being applicable to certified marriages that have been signed to places it comfortably within the simple category. Adultery is more nuanced however, since the law does exist, but is hampered by the offending spouse requirement. Because Arizona’s adultery law impacts the internal relationship dynamic more than the state’s ability to externally implement it, Arizona is considered to have no adultery law.
1 'Adultery; Classification; Punishment; Limitation on Prosecution', in 13-1408 (USA - Arizona: 2012).
2 'Barlow V. Blackburn Et At.', (Court of Appeals of Arizona, Division One, Department C, 1990), p. 351.