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    19 October 2021

    Civil partnership: Calls for adultery to be allowed when ending same-sex marriage

    There have been some significant changes to the options open to families in recent years. We had the long-overdue introduction of same-sex marriage in 2014 and then the extension of civil partnerships in 2019.

    It was hoped that these changes would give same-sex and opposite couples the same options and put them on an equal footing. But has this happened? Does the law apply in the same way if the marriage or civil partnership breaks down?

    Whilst most of the provisions apply in the same way whether you are a same-sex couple or an opposite-sex couple, there is one key difference in the breakdown of the relationship, which has resulted in calls for changes to the law.

    There is only one ground of divorce or dissolution: the marriage has broken down irretrievably. To prove this, the person applying for the divorce (the petitioner) must show this by relying on specific facts.

    The facts on a divorce/dissolution for a same-sex couple are the same as those for an opposite-sex couple, except there are only four facts, not five. The petitioner is unable to rely on their spouse’s/civil partner’s adultery even where same-sex infidelity has occurred. This is because the legal definition of adultery requires voluntary sexual intercourse between two people of the opposite sex.

    This is not widely known and can come as a devastating blow when they realise what the law says. Most would say infidelity is a clear reason for a divorce/dissolution, so it doesn’t seem fair that you can only rely upon adultery if you are in an opposite-sex marriage and if it occurs between two people of the opposite sex.

    The spouse/civil partner’s infidelity could be used as an example of “unreasonable behaviour”, but this still feels unjust for many. The BBC Wales recently published an article concerning this point, and one of those interviewed said, “It’s all fine for same-sex people; to have a marriage, but we’re not allowed to divorce on the ground of adultery.”

    The legal definition of adultery is provided by the Matrimonial Causes Act 1973, nearly half a century ago. There is a question as to whether this is still appropriate given the changes in our society and the nature of our relationships.

    It is hoped that when the changes come into effect next spring regarding “no-fault divorce”, it will harmonise the law and ensure equality between same-sex and opposite-sex couples. The new legislation will spare couples the need to apportion blame. Instead, they will be able to apply for a divorce, civil partnership, or legal separation by making a statement of irretrievable breakdown rather than giving reasons and blaming the other spouse/civil partner for the breakdown of the relationship. It will be possible for couples to make a joint application, but it will still be possible for one party to apply on their own if their spouse/civil partner disagrees. We hope that taking away the need to “blame” one party will encourage a more constructive separation approach and reduce acrimony.

    Many people may be wondering whether they should wait until the changes come into effect to commence divorce proceedings if they have come to the decision their marriage has broken down. It is probably beneficial to go ahead if you are ready now, but it is always worth seeking legal advice to discuss your circumstances.

    Fixed Fee Appointments

    It is always advisable to have an initial chat with a Family Solicitor; this ensures you know your legal position and rights before proceeding. It does not have to be costly to take advice. Steeles Law Family Solicitors offer an initial fixed fee meeting for £100.00 plus VAT for up to an hour so that you can chat through any legal issues and raise any questions you have. Please call the team on 01603 598000 or email family@steeleslaw.co.uk to book your appointment.

    *The information provided in this article is designed to provide helpful information on the subject, not specific legal advice.

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