Grounds for Divorce and Same-Sex Marriage - AIBU?

[JeanneDeMontbaston]

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

curley - yes, I do wish 'no fault' divorces were legal here. It seems to me a massive absurdity that they're not.

But I think this is an issue too, surely?

Having actually looked at the law in question, it doesn't actually say what adultery is, so there isn't actually any law which defines it, the interpretation based on the existing case law that it can only be penetrative penis into vagina sex could be re-interpreted, but it seems like an even bigger waste of time and money to go to the supreme court arguing what adultery is, than simply removing this last vestige from the law. And you'd probably need to stay married for a long time to prove it - which would be unreasonable behaviour I'm sure.

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.

Thanks, cats. I get where you're coming from and it is very kind.

But the thing is, I think this is a bit dodgy, aside from and apart from me.

Jeanne - yes, sorry, didn't mean to imply that it isn't!

I think I would say that the easiest option would be to remove adultery as a grounds for divorce entirely, and if someone did want to divorce on those grounds, it would come under unreasonable behaviour. But also have an option for no-fault.

Oh, I didn't think you did!

I'm just so conscious it is an absurdity. I wish the law would change on that.

I agree with you.

Without a definition of sexual activity to trigger adultery or non-consummation claims I can see there being a difficulty, but only if it were contested. If you are both happy to state that one had sex with a same-sex lover whilst married to the other, or that your marriage is ending because you never did get around to getting it on with each other, then surely the court should simply take your word for it? They pretty much have to take your word for it already in the heterosexual scenario. Who knows who put what where, unless they were there or had a strategically placed camera, and should it really matter that much? This suggests the analysis re paternity/inheritance above is very likely right. It's only when a child results that it makes a practical difference.

Er, not sure if I had a point to make with all that.

Well, of course, we could define sexual activity, right?!

I mean, I am fairly sure it's not beyond the wit of man to imagine that two women might do something other than hold hands.

Obviously, at the moment, one cannot cite same-sex adultery, so the point is moot - you can only cite adultery with a person of the opposite sex.

But I do think it makes a practical difference, actually.

I agree with catsrus - "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."

English law is fabulously easy going about divorce. That's why there is no need to bother too much about reasons. Anything that bugs you or him will do.

I mean, I am fairly sure it's not beyond the wit of man to imagine that two women might do something other than hold hands

I don't think anyone had a problem imagining that, not even when the law was enacted! But what two women couldnt do together was get pregnant and pass it off as the child of the legal marriage, which was what adultery was all about, legally. It's based on biology, not politics, or equality.

Its the idea of adultery in the legal sense that is long since anachronistic, not so much the application of it.

The legal definition of adultery is penetration of the vagina with a penis.

That is why it was not felt to be suitable to be included as a fact to be relied on in same sex divorce.

A man and woman engaging in non-penetrative sex are not committing adultery.

Of course it is still unreasonable behaviour, in both types of divorces.

You are right, the law hasnt caught up with the changes to same sex marriage yet.

Well, but it isn't really that, is it?

Adultery still counts if you are way past the age of conceiving a child, or if you're unable to conceive.

I would imagine the smallish numbers to whom that applies are similar to those for whom same-sex adultery is an issue, so there is a fairly obvious inequality and oddness there.

And it does have a real-life impact, doesn't it?

So adultery only counts as grounds for divorce if it could theoretically result in a child.

What about post-menopausal women, or infertile couples?

Adultery is just not a big deal these days. Hence no-one feeling the need to change the law.

bobo, I don't think it can be that. Because the law actually makes adultery quite important.

Maybe they're just lazy then. "OK, if one of these goes in one of those we know what we're dealing with. But what if they don't put it in, or neither of them has one of those? Ah, feck it, let's just leave it out."

Adultery was historically very important but is increasingly less so. I don't think there is any sort of political will to define adultery more closely or to make it more significant - it's more a case of letting it wither on the vine. Unreasonable behaviour, which is a much looser concept, encompasses pretty much anything without universal definition. Much more liberal.

YANBU. We should have equality before the law regardless of the sex of the parties, and that's not equal. There have been some valid points made on the thread, but that's what it comes down to.

I am not sure I'd describe English divorce law as especially liberal, not without some kind of no fault option. Unreasonable behaviour is defined really widely, and you can be pretty woolly about it. But the approach where one person has to accuse the other of fault, on an official court document, doesn't sit right with a lot of people. Understandably so. Couples who don't want to wait two years or slag each other off on public record are out of options. An earlier no fault option might aid couples in keeping it civil, which presumably we would all prefer.

How does the law make adultery important?

It's a fact that can be used to provide the court evidence that a marriage has broken down - that is the only ground for divorce, that the marriage has broken down. www.legislation.gov.uk/ukpga/1973/18/section/1 Adultery is not defined in the act, and only case law exists, the case law defining it is of course very old, and is limited to penetrative vaginal sex by a penis, nothing else is adultery.

It's not important in the law, since the other facts can be used, and they usually, there's loads of left over bits like this in laws, the effort of changing them is not worth the value they give. There is no need to invest any attempt in defining adultery, it would be utterly foolish to waste everyone's time and money attempting it, it is far from simple.

Oh, I see what you mean bobo. Yes, I agree - it would be much better to do away with it and just have 'unreasonable behaviour overall'.

fred - well, because you can cite it as a specific ground.

It's defined as 'sex with a member of the opposite sex'. It can't be sex with a member of the same sex.

It does actually matter.

It's a bit like the issue with equal marriage itself. People used to say 'well, it doesn't matter, you could always name your partner as next of kin, name them in your will, and so on, so the legal bit is really silly and no one cares'. I think we've moved on from that.

At the moment, if you are getting divorced, you can cite 'unreasonable behaviour' and get divorced fairly quickly. But this isn't a choice to take lightly, because there is then a record of that unreasonable behaviour. Or, you can wait two years and claim the marriage has broken down.

What you cannot currently do, is to claim your partner sleeping with someone else, of the same sex, is as valid a ground for divorce as them sleeping with someone of the same sex. If that's your situation, you either hang around for two years, or you cite unreasonable behaviour, as if it's somehow categorically different from anything else.

Personally, I think adultery is just one form of unreasonable behaviour among many. A great deal of importance was placed on sexual fidelity within marriage (indeed, on sex only within marriage) in the past but these days it's not generally considered to be as black and white an issue as it once was...

Yes.

Well no, I don't really agree. You have to consider what the law is for and what it means, and why it was there in the first place before you talk about changing it and whether it is unfair.
Adultery was about biology, and legitimate children. The whole point was the threat of man being stuck with another mans child. So adultery was a crime a woman did to a man, and she couldn't commit it with another woman, because there was no possibility of children.
Now, you can say that none of that applied to infertile people or women who were too old for children....but the law came from a time when you didn't know much about fertility, and you didn't know exactly when fertiltity ended. And you rarely got adultery mentioned with older women anyway, because no-one cared about them.

So then the concept evolved only slightly so that women could cite adultery against men, but it didn't change the basis of the law. NOW the whole concept is outdated for everyone.
You are of entirely correct that it is unfair that mixed sex couples can cite adultery and same sex couples can't. BUT it makes no sense to update an antiquated law to make it equal for same sex couples. Lip service to equality doesn't help anyway. The only sensible thing is to get rid of the concept for everyone, because its based on sexist inequality and horribly old fashioned notions in the first place. Get rid of it entirely and make sure the divorce laws reflect all kinds of relationships and contain equal methods to end marriages irrespective of their make up.

By the way, you don't have to wait two years to divorce on the grounds of unreasonable behaviour. Time frame is the same as for adultery. So your point that the inherent unfairness leads to practical difference on that front is nor true.

That isn't true. People have known for long before the current laws on adultery that women past age of menstruation didn't have children.

I would strongly support scrapping the whole idea (as I've said upthread), but I think the double standard is insulting to everyone.

And no, I know you don't have to wait two years for unreasonable behaviour - as I said, it's a separate ground. I think maybe you misread me there?

I don't think that when the rules were started people considered that post menopausal women would have the opportunity to commit adultery! In any case it is still unclear about the precise age a woman becomes infertile. It is recommended women use birth control for a full 12 months after their periods stop. And in the past many older women claimed to give birth - often covering up for an unmarried daughter who became pregnant.