Equality in marriage does not mean equality in divorce...
June is Pride month, when we celebrate sexual diversity and promote the equality of those in the LGBT community. It made me think about an element of divorce law which is not so equal.
Same-sex marriage has been around in the UK since the Marriage (Same Sex Couples) Act (2013) came into force in March 2014. This is clearly something which should have happened sooner but is a great step forward towards equality for LGBT families in the UK.
Sadly, as much as relationships are built, they also breakdown and the law and lawyers become involved whatever a couple’s gender make-up. Now that the happy occasion of a wedding can be enjoyed by same-sex and opposite-sex couples alike, you would think that they could also divorce and separate alike too.
There are five facts which are capable of proving that a marriage has irretrievably broken down and that the grounds for divorce (‘irretrievable breakdown’ of the marriage) have been met. These facts are:
- Five years separation (without the consent of the other party)
- Two years separation (with the consent of the other party)
- Desertion
- Unreasonable behaviour
- Adultery
The majority of these facts translate across to same-sex marriages and to civil partnerships; so far so good. The difference comes with the fact of adultery.
Adultery defined...
‘Adultery’ is confined to conduct between the respondent and another person within the relevant legislation (part 1(6) Matrimonial Causes Act 1973), as sexual intercourse between a man and a woman. This part of the legislation having been inserted following the 2013 Act which gave provision for same-sex marriage.
The law allowed same-sex couples to marry; but does not allow one to divorce the other on the basis that they have had sexual intercourse with another person of the same sex. In the case of infidelity with another member of the same sex in same-sex marriages, the petitioner is left with making an application based on ‘unreasonable behaviour’ with this infidelity making up one of up to six allegations of unreasonable behaviour.
In the case of civil partnerships, the ground for dissolution of that partnership is again irretrievable breakdown of the relationship, with the same facts to prove as for a marriage but in this case, with the fact of adultery missing entirely.
The future of divorce...
Whilst the requirement to use a different fact of divorce or dissolution does not impact on financial settlement, it does somehow seem to reduce the perceived power of same-sex infidelity as not being enough on its own to cause an irretrievable breakdown of a relationship in UK law. It shows the law in the UK failing to recognise intercourse between members of the same sex as capable of being ‘adulterous.’ Why?
Although things aren’t perfect now, we are on the cusp of ‘no fault’ divorce. As lawyers, we are encouraged to deal with divorce and settlements in as measured and considerate a way as possible; the idea of laying blame at one party’s door at the outset and bringing a petition on their ‘adultery’ feels slightly outdated in any relationship.
In the future, we are likely to have general ‘statements of irretrievable breakdown’ and joint applications, the ‘five facts’ of divorce would not come into it. Although this is a point in law where the rules for same sex couples and opposite sex couples are currently different and unequal, it may be that with the coming changes, this problem ceases to exist. That would be something to be proud about.
