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Grounds for Divorce and Same-Sex Marriage - AIBU?

(163 Posts)
JeanneDeMontbaston Thu 24-Mar-16 12:14:11

I've been quietly pondering this for a while, but a recent conversation made me want to put it on MN.

As you might know, when you get divorced, you have to provide grounds for divorce. There are various things you can say, and to some extent, these are a bit of a fig leaf. For example, you can claim 'unreasonable behaviour' when all you really mean is 's/he seems quite nice but is driving me up the fucking wall and we're not compatible'.

What slightly surprises me is that, according to the Government website, you cannot cite same-sex adultery. It just doesn't count.

Same-sex marriage is legal, obviously. But the site claims adultery only applies if "your husband or wife had sex with someone else of the opposite sex."

I thought it must be an error, that they'd just not updated since same-sex marriage came in, but actually, that doesn't make much sense either, does it? And presumably we're long beyond the period when adultery was an issue purely because people expected marriages to produces biological children?

Can anyone understand the reasoning here? And can anyone tell me if it is an error, or if this is really law? If it is, it actually seems quite homophobic to me really.

The site is here, btw:
www.gov.uk/divorce/grounds-for-divorce

shoeaddict83 Thu 24-Mar-16 12:17:26

as ridiculous as it is, it seems correct!
Just read this on another site;

Incidentally, adultery involves sexual relations between one party to the marriage and an outside party of the opposite sex. If the sexual relationship is with a member of the same sex or if the relationship is not sexual that is not adultery. The appropriate ground on a divorce petition in such cases would be "unreasonable behaviour"

link:http://www.terry.co.uk/adultery.html

so i agree definitely should be updated as if my DH slept with another man id totally class it as adultery not unreasonable behaviour.

JeanneDeMontbaston Thu 24-Mar-16 12:19:33

I've also read it elsewhere too, shoe

I just don't remember seeing any public debate about this when equal marriage came in - does anyone else? It does seem bizarre.

PaulAnkaTheDog Thu 24-Mar-16 12:19:44

Whoa! That's ridiculous!

BooAvenue Thu 24-Mar-16 12:20:32

That's correct. You also can't annul a same sex marriage on the grounds on non consummation. I think it's ridiculous personally.

NotCitrus Thu 24-Mar-16 12:20:47

The 'logic' is that if same-sex adultery counted, someone would have to define what 'having sex' is, in law. And it seemed much easier to just stick it all under 'unreasonable behaviour'.

PennyHasNoSurname Thu 24-Mar-16 12:22:01

My aunt went through this when she tried to divorce her then husband aftrr finding out he had been having a relationship with a 17yo boy (who he had know since preteen) !!!

Not able to divorce on Adultery. Un fucking beleivable. This was 12 years ago so I had assumed it would have changed by now but....

MyKingdomForBrie Thu 24-Mar-16 12:22:12

How and why is that a thing?! Very weird! id say that legislation needs an update.

JeanneDeMontbaston Thu 24-Mar-16 12:22:43

YY, I read that too, Boo.

I can't help feeling it's shades of Queen Victoria ("women don't do that!"). And I know that's a myth!

Not to put my cards on the table (well ...), but it does bug me. I separated from DH, quite amicably and with his full understanding of what was going on. By these rules, unless he or I wants to make up nonsense about 'unreasonable behaviour', we have to wait two years to divorce, instead of calling a spade a spade and pointing out I've got a female partner.

confused

OneMagnumisneverenough Thu 24-Mar-16 12:23:10

I know where you are coming from with the "same sex marriage" point but surely it has always been an anomaly? Would it not be the case even before this that people split up because their opposite sex partner has an affair with a person of the same sex as them?

JeanneDeMontbaston Thu 24-Mar-16 12:23:32

Sorry, penny, that's awful. sad

not - yes, precisely. It's incredibly homophobic.

Elledouble Thu 24-Mar-16 12:23:39

That's shocking! Adultery is hard enough to divorce someone for anyway (my ex husband left me for the other woman but I divorced him after two years' separation - it just wasn't worth the fight), without them bending the definition of it.

JeanneDeMontbaston Thu 24-Mar-16 12:25:06

One - oh, yes, it was an anomaly long before same sex marriage - because obviously, many people would feel that if their spouse had sex with someone else (even if it was same sex), it was adultery.

I guess I just feel that it is the more bizarre that it's still not been updated, even though in theory, the country recognises same sex marriage as valid.

OneMagnumisneverenough Thu 24-Mar-16 12:25:14

Maybe the adultery point should go completely and everything goes under unreasonable behaviour/non-compatibility?

JeanneDeMontbaston Thu 24-Mar-16 12:25:33

Sorry to hear that, elle. sad

BooAvenue Thu 24-Mar-16 12:26:06

Let's redefine sex in law then, so "sex" for the purpose of adultery = touching another persons genitals.

OneMagnumisneverenough Thu 24-Mar-16 12:27:01

Yes, I agree that if ever there was a time to review it it was when same sex marriage was introduced/allowed - not sure what word I'm looking for here smile

JeanneDeMontbaston Thu 24-Mar-16 12:27:04

One - yes, that might be much more sensible!

fredfredgeorgejnrsnr Thu 24-Mar-16 12:32:44

Removing adultery from a fact of divorce (not a ground, the grounds for divorce are that the marriage is over, adultery etc. is just a fact that demonstrates it for the court) would be the sensible thing and that is in effect what has happened.

It doesn't really need the effort and cost of changing an old law, if the wording was in a new law, it would be very reasonable to complain about, calling for parliament time and money to change a 40 year old law is a waste. Encouraging people to advise everything is done on an unreasonable behaviour makes much more sense.

dimots Thu 24-Mar-16 12:37:32

I think it dates from before DNA testing. So if a woman had an affair and became pregnant, her husband would be liable for the child, unless he could divorce for adultery. Similarly, if a man had children outside his marriage, this could compromise his marriage if he acknowledged the child. So adultery only counts as grounds for divorce if it could theoretically result in a child. Non penetrative sex between opposite sexes doesn't count either.
In practice, unless the guilty party admits it, it is very difficult to divorce on grounds of adultery. You would have to be caught in the act or have a child as proof. Most people are advised to use unreasonable behaviour instead.

catsrus Thu 24-Mar-16 12:39:09

But unreasonable behaviour is such a simple thing to use - it doesn't mean acting like a total loon, it just means behaviour that the other person cannot live with - which is why it's got to be used within 6 months of it happening. My ex wanted a divorce, I said fine, but you want it then you make it happen - so he had to come up with the grounds for my unreasonable behaviour. If I'd been having a sexual relationship with another woman then I certainly think that would have been unreasonable. Adultery has a very strict legal definition, it always has, and I suspect is more rooted in male concerns about raising a child that is not theirs (and inheriting land etc) than it has to do with relationships.

Adultery was a crime because it could mess up dynastic succession - nothing to do with the betrayal of love. I think it should simply be abolished as a category and replaced wholesale with unreasonable behaviour.

I didn't read the citation my exH wrote btw - you don't have to, you just have to acknowledge receipt of it. I finally read it a few years later and just found it amusing - especially as by then he was married to the OW and not living his dream marriage grin

Do what you need to do to get out of this marriage and be happy with your new partner - don't sweat the small stuff.

ifgrandmahadawilly Thu 24-Mar-16 12:48:26

YANBU.

I remember coming across this when studying family law. There really isn't any reason for it other than homophobia.

I remember reading the judgement of a cast in which this was challenged (unfortunately this was a few years ago - when Civil Partnerships had just been made legal and gay marriage was being debated - so I don't remember the name of the case) and the judge basically gave his reasoning as being that in his opinion, sexual mores are different in the gay community; fidelility wasn't valued / possible in a gay relationship, therefore it would be a mistake to include adultery in the grounds for separation between a same sex couple shock

I really wish I could remember the name of the case! (My family law lecturer at the time was a twat conservative, homophobic 'family values' Christian type-person also so I spent quite a lot of those lectures being angry from what I recall).

CurlyBlueberry Thu 24-Mar-16 12:51:23

Rather than unreasonable behaviour, would it not be better to go down the route of 'no-fault' divorces... i.e. we no longer wish to be married. Rather than having to label each other 'unreasonable' hmm

Elledouble Thu 24-Mar-16 12:51:24

Do what you need to do to get out of this marriage and be happy with your new partner - don't sweat the small stuff.

Oh yes, this - the upside of divorcing for two years' separation was that I wrote a single sentence to explain it (i.e. that we'd moved out of our shared home because we didn't love each other any more) whereas my other half's ex wife had wittered on for a couple of pages about how he'd stopped hugging her and came home late in the evenings for their unreasonable behaviour divorce.

There should really be a no-fault option before two years - irreconcilable incompatibility or something - because all that happens is that people find the most spurious examples of unreasonable behaviour or lie about how long they've been separated. I don't think I know anyone who put the whole truth on their divorce petition.

ciabattav0nbreadstickz Thu 24-Mar-16 12:51:43

Yanbu OP, I spotted that when I was filling out my divorce forms. I also thought it was a bit antiquated and unfair confused

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