Same Same but Different

Whilst English law has recently caught up with the 21st Century by the passing of the Marriage (Same Sex Couples) Act 2013; a lesser known fact about divorce means that there is still inequality within the law.

This issue was thrown into the media spotlight recently when a woman tried to divorce her husband on the grounds of adultery as she discovered he had had a number of affairs, involving sexual relationships with men. Under English law, a person who wants to get divorced must demonstrate that their marriage has ‘irretrievably broken down’ and can rely upon one of five facts to prove it: Adultery, Unreasonable Behaviour, Desertion, Two Years Separation (with the other person’s consent) or Five Years Separation (without their consent). However, she was shocked to discover that in the UK, adultery can only be committed between members of the opposite sex and therefore she was forced to rely on the alternative ground of ‘unreasonable behaviour’.

Adultery is not even an option as a ground for dissolution of a Civil Partnership and it can only be used as a ground for divorce in same sex marriages where the infidelity is carried out with members of the opposite sex.

So what does this mean in terms of the outcome of the divorce (or dissolution), many will be asking. In reality, absolutely nothing. The divorce will still go through in the same manner and achieve the same result. It will just be on the ground of the other party’s unreasonable behaviour which has to be supported by a few paragraphs explaining the behaviour and how it is considered to have brought the marriage to an end. Many people still think the fact that one party has committed adultery will have an impact on the divorce, financial settlement or child care arrangements but behaviour is only taken into account in truly exceptional circumstances.

However, it is the principle that matters to people in this situation who care “hugely about the betrayal and want(s) to know that somebody somewhere has recognised that”. The woman in the aforementioned case, feels strongly that the definition of ‘sexual intimacy’ needs to be brought in line with the 21st Century. Case law defines it as “voluntary sexual intercourse between a man and a woman who are not married to each other but one or both of whom is or are married“. This might now seem out of date in light of the fact that the law now recognises marriage by  same sex couples. Why should the law not also recognise that adultery can be committed by people with members of the same sex? Human Rights Group, The Peter Tatchell Foundation, believes this “differential in the law governing same-sex and opposite-sex married couples is not equality“.

The issue was considered by the Government in 2012 in relation to same sex marriage but it said that creating an equivalent of adultery would change the law “unnecessarily” as the petitioning party could still rely on the unreasonable behaviour ground.

Now that this case has reached the headlines and sparked renewed controversy, there may be further political debate on the issue with a view to changing the law. However I would suspect that any change, if indeed this leads to any change, would not be for several years.

Paul Lancaster

Paul Lancaster

Paul Lancaster
Family Team
0113 227 9233

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