We are all equal…. but are some more equal than others when it comes to grounds for divorce?

The iPM programme on Radio 4 on 1 August discussed the case of a woman who was unable to divorce her husband for adultery because he had sexual affairs with men rather than with women. This was very pertinent to the work we do with diverse modern families, and we sympathise with her complaint. In an age of marriage equality, why is there still a bar on everyone being able to rely on the fact of adultery to prove that a marriage has irretrievably broken down? Should it really matter whether the infidelity is with someone of the same sex or of the opposite sex?

NGA_Stock_158Technically there is only one ground for divorce – that the marriage has irretrievably broken down – but this must be proved by one of five facts: adultery, unreasonable behaviour, separation of two years with consent, desertion and separation of five years. Legally, adultery is defined as intercourse with a member of the opposite sex which means it can only be claimed as a basis for divorce if a spouse has heterosexual rather than same-sex sexual intercourse. If the relationship being dissolved is a civil partnership, adultery cannot be claimed at all, even if the civil partner has intercourse with a member of the opposite sex.

The modern UK understands that sexuality is not always fixed, and we certainly see people in heterosexual marriages being unfaithful or beginning new relationships with members of the same sex, and equally we see people in same-sex marriages (and civil partnerships) being unfaithful or beginning new relationships with members of the opposite sex. With same sex marriage legal in England and Wales since 29 March 2014 the number of people potentially wishing to rely upon the fact that their spouse has had a sexual relationship outside the marriage with a member of the same sex could increase dramatically.

Most people would consider that adultery is sexual intercourse by a spouse with another person, outside the marriage, regardless of their sex. Indeed, the woman on the iPM programme called for the law to “grow up about what sexual intimacy means today”. We agree. If the law can grow up enough to recognise that same-sex couples can marry, then the other side of this, marriage breakdown, should be equal too.

For those who cannot rely upon adultery, there is an alternative. Infidelity can be relied on as an example of the other spouse’s ‘unreasonable behaviour’. However, other examples of unreasonable behaviour may be needed to satisfy the court that the spouse has behaved unreasonably, and there is no clear guarantee that the adultery alone will be sufficient, which could be seen to dilute the seriousness of the infidelity where it takes place with a member of the same sex. Perhaps that would be enough for some, but this is not just a legal point, it is one fraught with emotions and morals.

The overall point therefore still remains: in an age of marriage equality, are some more equal than others when it comes to proving grounds for a divorce?

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