Grounds for divorce in a same sex marriage

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Much has been written recently about the possibility of the law being changed so that it ceases to be necessary to allege “fault” before a divorce can be granted. The law applies equally to same sex marriages as it does to those between opposite sexes.

The grounds for divorce - the present law

As a reminder, as the law is now, a divorce can only be granted if the court is satisfied that the marriage has “irretrievably broken down”.

Proof that a marriage has reached that state has to be on one of five specific grounds which are:

  • adultery
  • unreasonable behaviour
  • desertion
  • separation for more than two years, if both parties agree
  • separation for more than five years even without agreement.

This piece only deals with claims for divorce on the first stated ground, adultery.

Definition of adultery

Adultery is defined by the law as

Voluntary sexual intercourse between a man and a woman who are not married to each other but one of whom is married to someone else”.

It follows from this definition that

  • Sexual intercourse between two people of the opposite sex who are married to each other cannot be adultery even if they are separated
  • Sexual intercourse between two people of the opposite sex who have been married but were subsequently divorced would be adultery if one of them has remarried and remains so (but the adultery would be relevant only to the second marriage)
  • Sexual intimacy between one married person and another person of the same sex would not be adultery
  • Sexual intercourse between two people of the opposite sex who are not married to each other or anyone else cannot be adultery
  • Non-consensual sexual intercourse (usually rape) is not regarded as being adultery.

Implications for same sex couples

Given that adultery can only be grounds for divorce where there has been sexual intercourse between two people of the opposite sex, sexual intimacy between two people of the same sex is not “adultery” for the purposes of obtaining a divorce if one of those people is in a same sex marriage.

It is perhaps bizarre that if one of the two people in a same sex marriage has sexual intercourse with a person of the opposite sex who is not their spouse, then that would fall within the legal definition of adultery and would be grounds for divorce.

Is there an alternative under the present law?

If a marriage between a same sex couple breaks down as a direct consequence of sexual intimacy between one of the parties to that marriage and someone else of the same sex, then, although adultery is not a ground for divorce in those circumstances,  it is likely the aggrieved party could seek a divorce on one of the other grounds for divorce, namely unreasonable behaviour (see above).

Possible changes in the law

The present divorce law was established by the Matrimonial Causes Act 1973, nearly half a century ago. It is interesting to remember that, all those years ago,  sexual relations between two men had only recently been legalised (a sexual relationship between two women was never a criminal offence) and there was no talk of  the creation of same sex unions in the form of civil partnerships, let alone marriages. Much has changed in the meantime in the way people choose to live their lives and society has adopted a different and more accepting attitude to same sex relationships. Even so, when, in 2014, legal marriage between couples of the same sex was introduced, it was regarded as a step too far for parliament to introduce a law saying that sexual intimacy with another same sex partner outside the marriage would be treated in the same way as adultery in a heterosexual marriage.

There has been much talk of possible changes in the law and the introduction of what is sometimes called “no fault” divorce, a change which is supported by many interested organisations and senior members of the judiciary. It seems unrealistic, however, to expect that parliamentary time for such legislation will be found in the immediate future. Until it is changed by parliament, the law remains as stated above. 

If you or anyone you know, are affected by the issues raised above and would like more information or some preliminary, confidential advice, please contact one of our experienced experts in our Family team by e-mail or telephone: Exeter +44 (0)1392 688688 or Sidmouth +44 (0)1395 512515.