Same Sex Marriage And Adultery – Some Problems To Ponder

February 7, 2013

Right now the topic of conversation seems to be that of same sex marriages.  It is now very clearly settled (unless there are substantial upsets at further readings of the Same Sex Bill presently working through the Houses of Parliament to be eventually enacted as an Act of Parliament) that same sex couples will be able to get married.


I cannot state how substantially that is going to impact upon present legislation and in particular in relation to divorce legislation.  In simple terms we need to look forward to what will happen in the event, and of course this will happen at some stage, when same sex couples who have married want to get a divorce.   Let me throw up a couple of problems I can immediately envisage and I would draw your attention to my later blogs dealing with the interrelationship between religion and divorce and the substantial anomalies that this throws up which are coming soon.


I will try not to be too technical nor too sexually explicit for you shrinking violets out there but in simple terms when a heterosexual couple decide to divorce one of the grounds for divorce are that the other party has committed adultery.


Believe it or not when getting into the details and technicalities of adultery reading the case law and the primary legislation in relation to that is bordering on pornographic (who said law is boring!)


To keep things very simple and light hearted ‘snogging’ is not considered adultery that is in fact unreasonable behaviour.   Anything more than snogging, including heavy petting and a little bit beyond is also not considered adultery but could be one of other grounds for unreasonable behaviour.


The current legal definition of adultery is where physical sexual intercourse takes place including penetration between a man and a woman.  There is no provision for a sexual liaison to have taken place between same sex partners or new partners as the case may be.


Therefore, curiously as the law stands at present, and of course it will need to be changed, if I were a gay man in a same sex marriage and had an assignation with another man I could not be divorced for adultery.  The law at present would only allow my hard done by male partner to divorce me on the basis of my alleged unreasonable behaviour.  In reality it is easier to proceed (for reasons I will not bore you with at this stage) on an unreasonable behaviour petition than it is on an adultery petition, especially if it is going to be challenged or may be challenged.  Therefore that does not necessarily present us with any problems.  However my aggrieved partner may wish to divorce me for the right reasons and be sufficiently indignant to insist that I am divorced for my adultery which of course cannot be the case at present.  Such an application (petition) must fail until the law is changed.


Therefore when same sex couples are finally able to be married unless this piece of legislation is changed then whom that person chooses to have a relationship with will determine whether adultery has been committed or not.

The moral of the story?  Let the legal nightmares begin.


The information provided in this article is not intended to constitute legal advice and each relationship breakdown requires careful consideration in our view by a fully qualified Solicitor before decisions are made and before you embark on a certain course of action.


Shak Inayat


0207 193 2898

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