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

I'm fairly sure people have known post-menopausal women commit adultery. There have been cases way before divorce was a matter of civil law, in which men were furious with their post-menopausal wives for sleeping with other people.

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.

Most adultery petitions succeed because they go through undefended. it's all but impossible to defend a divorce these days. Personally I would make it an administrative process; the Registrar of Births, Marriages and Deaths would become he Registrar of Births, Marriages, Deaths and Divorces. The courts would deal with the money side of the parties could not agree.

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

Yeah but they didn't care about post-menopausal women, they might as well have been invisible, so that didn't come into it.

Yes, but men still divorced their post-menopausal wives for adultery and why not? it's the fact of adultery which spouses of both sexes might well find intolerable, and not only the possibility of "spurious" issue.

I think they did care, TBH. I'm not sure why you think not.

I think it is pretty much what Bobochic said.

Surely the idea that one has to provvide 'grounds for divorce' is a little dated in itself. Simpler if we just let adults divorce one another if they want to.

if couples aren't expected to provide grounds for marriage, why should they be expects to provide grounds for divorce?

Though perhaps it would be a good thing to ask people to give good reasons for getting together? It might help them avoid dreadful mistakes.

I don't think I'd want to see adultery removed as a cause because of the weird thing where the person who has to 'get the divorce' is the one who wasn't cheating, unless you wait two years.
In my own situation my XH cheated on me and then walked out very soon after our marriage, I felt that it was only fair that the petition recorded (for posterity/future family history research/his next fiancee) that he had cheated rather than implying that I had been the one who had changed my mind very quickly - as I think me filing for unreasonable behaviour so soon might have appeared.

I had this conversation in rl years ago and was told that it was because lawyers involved in the drafting of CP's couldn't agree what lesbian sex was so couldn't legally define adultery. This has just carried on from civil partnerships.

I don't know if it's true, but the person who told me worked for a prominent lgbt charity at the time.

"Non penetrative sex between opposite sexes doesn't count either."

Surely this seems like the reason it is clearly not homophobic. 'Straight' bum sex also isn't adultery. Straight couples can't use "he got a BJ so adultery" for divorce. Law needs to be black and white so we need strict definitions of things. Gay sex is different. No better or worse, but it is and therefore, while the rules may not quite work, it can be a difficult process to change them.

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

Why? For a start, while not for me, many couples could get past that but not actual adultery.

Do genitals include boobs? Balls? Over or under clothing? Law is complex and re-writing it has wide-ranging repercussions. Perhaps the reason there aren't those bloody online petitions and protests is it is a fairly insignificant issue and the gay community are happy that their marriages are legally recognised; why sweat the small and insignificant stuff.

JeanneDeMontbaston Can I ask (feel free to not reply if you would rather not) but it sounds like you are in a same sex relationship now but are also married to a man. It sounds like upi would like your husband to be able to divorce you on these grounds and feel it is homophobic he cannot. Is that right or have I totally got the wrong end of the stick! {grin (Sorry if I have!).

I agree with CurlyBlueberry. I am going through a divorce at the moment and am having to cite examples of my STBXH unreasonable behaviour - which isn't that hard, but I'm sure he could bring up equally great examples against me - and when it comes down to it I just don't want to be married to him any more. That does sound horrendously homophobic though - if I had slept with another woman I would consider it adultery!

Homophobia is the hatred or fear of homosexuals, I am not sure the failures of this law can really be classed as homophobic. They are based I think on a failure to make allowances for the fact that a spouse could cheat with someone of the same sex, which is probably just an archaic element of law. We have equal marriage now (here in Britain) but actually gay sex has been legal for men a long time and never illegal here for women so most people would realise a person could cheat with someone of the same sex. Even when it was illegal for men it must have been known it could happen!

So the people who are being 'hurt' by the failure of this law to acknowledge same sex sexual relationships are not gay people but anyone married to someone who goes and has an affair or starts a relationship with a partner of the same sex.

I am curious on what grounds people who are in a same sex marriage could site adultery.

The law definitely needs an overhaul and I really agree MichelleNeedsMore that people should be allowed to divorce on the grounds of no longer wanting to be married, what is sometimes called (I think) no fault divorce.

I don't think I'd want to see adultery removed as a cause because of the weird thing where the person who has to 'get the divorce' is the one who wasn't cheating, unless you wait two years

You don't have to wait two years if you cite unreasonable behavior.

But why not just get rid of adultery as a clause since its so outdated, and shorten the time frame as well? And introduce quick no fault divorce?

There is no point updating an antiquated law to make it as equally antiquated for everyone.

Sorry OP but some of your argument is a bit of an non issue. Unreasonable behaviour covers all forms of adultery, and if you went to see a solicitor they'd almost certainly advise you to go for unreasonable behaviour rather than adultery, as adultery needs evidence, which can be hard to get or depends on a confession which can be withdrawn. However the "unreasonable behaviour" of spending lots of time with another person rather than partner, or moving in with another person and out of the marital home, and maybe even being seen kissing another person/holding hands etc. are all far easier to prove.
In fact Adultery as a grounds for divorce is only really hanging on because people want it emotionally.

But yes the definition of adultery is silly.

Andrewofgg - the Registrar recording divorces would be useful (although the biggest part of divorces is getting children and finances sorted), but at present there is no public register which records divorces. Which is a pain if you are researching family trees, as it can be an event that you know about but can't find records of.

Some people marry planning to stick with their partner for life. Adultery is allowed as a reason for people of the Judeo-Christian faith and our laws have got lots of things based around those ancient laws, as far as I can tell. Just because some people do not want to divorce on the grounds of adultery, it should not be removed because other people may well want to use that as a reason they see as legitimate for a marriage to end.

Personally, although I am a Christian, I would be happy to see no fault divorce but I think we should allow divorce for a whole range of reasons. Some people find it very hard to divorce and would want to feel they had not broken their marriage vows while the other had, and if the other had indeed done that then why should they not be divorced on those grounds. Although clearly, it does look a lot easier to divorce on the grounds of unreasonable behaviour!

I am a Christian and would have no problem with someone divorcing on the grounds of Unreasonable behaviour especially if quoting behaviour that I consider to be adultery (which I believe for most Christians is broader than the laws definition). But then I've always felt that violence (and abuse) are also very valid grounds.

mummytime I absolutely agree with you, I wasn't saying those were my views, I was saying some people's views.

mummy - hmm, I don't think it is a non issue.

My ex doesn't think I am unreasonable to have started a new relationship (and it is extremely easy for him to get evidence of it). But he does feel - reasonably! - that it is grounds for divorce, not something he's ok with. Neither of us wants to pretend the other has been unreasonable in some other, fake way - and it does seem to make a mockery of serious marital issues people have.

It's also an issue, surely, for non-amicable divorces, which are effectively saying (as a poster upthread effectively says), 'well, yes, your husband did have sex with someone else, but seeing as it was a bloke, you don't deserve to feel upset in exactly the same way as if it were a woman'.

I do think these things matter to people. Yes, some people are very pragmatic about marriage, and feel very much 'let's just do the easiest, quickest thing however we can'. Others get emotional. I can completely see why it's emotional for my ex, frankly.

JeanneDeMontbaston I am not sure that the law will change any time soon. Could your departure for another women not count as unreasonable behaviour in terms of the marriage?

If you are not happy to answer this, please do not, but can I ask whether you were married for a long time?

I hope things will resolve well for you both.

When people are in the throes of divorce, emotions generally run pretty high and that is perhaps why the semantics of "unreasonable behaviour" versus "adultery" are currently causing you/your STBXH so much head scratching.

The thing you don't seem to get is that: having an intimate relationship with someone who is not your spouse = unreasonable behaviour.

That is also the grounds most strictly heterosexual couples use to divorce in the same situation. Adultery is a much more rarely used grounds and most lawyers advise against it. I am sure except for a Daily Mail type backlash it would be got rid of as a grounds as Unreasonable Behaviour already covers the same ground and needs less evidence.

It is just vocabulary. The word "adultery" has a specific meaning in law.

Unreasonable behaviour covers it. There is no issue. Nobody has been denied a divorce because adultery was not considered grounds, whether seeking to leave a same sex or a mixed sex relationship. And plenty of examples of "cheating" would not fall under the "adultery" label.

Do you really want the lawyers to start legally defining what is sex and what is not?

In any relationship the couple set the parameters - what is and is not permissable. As we see on MN everyone is different. Some allow this some wouldn't hear of it, some LTB over what others might forgive. Your choice.

Marriage however is a legal contract. I imagine you promised to be exclusive. An intimate relationship with someone else and the subsequent desire to break any vows you might have made counts as unreasonable. It is NOT a slur on your character.