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

Goingtobeawesome well I am not an expert, I am just a Christian.

It is my understanding that the Christian understanding of marriage can vary a lot! EG the Bible talks about marriage being to a sexual partner (pm me if you want to know more!) and some branches of the church feel marriage cannot be ended except by death.

BUT I think most mainstream Christians recognise marriage as a legally binding commitment made in your context so even if you do not marry in church etc you are legally married and the church respects that and those who choose to divorce are usually equally respected.

But then I am part of the C of E and we tend to be pretty accepting (or at least we are getting that way). So if a member of a couple has an affair it does not end the marriage but if could be used as grounds for divorce. PM me if you want.

JeanneDeMontbaston "It does feel absurd to call it unreasonable." To me it does sounds totally unreasonable in relation to being married to your husband! You left him, maybe he should petition divorce that you left him. And leave the other person out of it. Does he not feel you leaving him when you had promised to be with him for life (I presume) was a bit unreasonable? in relation to being married to him.

If my husband had married me and secretly been attracted to men I would find that deeply unreasonable.

You said we were wrong for each other and there is no way in law to say that. Were you wrong for each other because you are a lesbian or bi? Surely he could say it was unreasonable for you not to mention that? Or did you tell him, did you not know?

You do not need to answer these questions. You did make your post about your own situation but you do not need to give away any information you feel you do not wish to.

You seem to understand what Bill Clinton did in that situation does not constitute adultery. But it does constitute unfaithfulness and some would divorce on those grounds, Hilary obviously didn't.

Some laws are archaic and need updating, I agree. But I fail to see how this law if 'homophobic'. Don't you mean discriminatory? IMHO the person being discriminated against in this case if your husband.

I think you and your husband can work this one out together (divorce amicably) but you can campaign to change the law, of course, and I personally agree that unfaithfulness with a person of the same sex is just as unfaithful as unfaithfulness with a person of the opposite sex. If you or someone else starts a petition I will sign it.

I do wonder if all this is also about more, are you looking for validation of your new relationship? Are you more upset by the failure of your marriage than you thought you were? Again, no need to answer if you do not wish to.

Just because you chose to end it doesn't mean you won't be upset or feel hurt etc. Do you have non-judgemental friends who can talk to you about all this.

I wish you all the best.

italian, he cannot petition for divorce simply because I've left him, without waiting two years.

Which is quite emotionally unpleasant.

I have said this before. I'm probably not saying it very well, but I really have said it!

The law seems to me to be homophobic because it defines adultery as something that only a heterosexual couple can commit, and same-sex sex as something lesser (less upsetting, less significant, whatever). It means that if your partner has left you and moved into a relationship with someone else, that only counts as a self-sufficient reason for divorce if the person they are with is of the same sex as yourself. I just do not think this is in line with most people's stances on marriage today.

A separate case could be made that people would find (eg) their partner having straight oral sex with someone else as upsetting as their partner having straight PIV sex with someone else. But it is a separate case, I think? The issue here is that some straight sex counts as adultery, but no homosexual sex does.

As for the questions - sorry, I am being a bit cagey, but he knew I was bi, and he knew I planned to date women.

I don't think I am more upset by the divorce than I expected, or needing validation, but I do feel more angry than I thought that it has to drag on so very long, and that the routine solution people seem to get into, is lying about what happened in order to expedite things.

If the law said he could simply state 'she was unreasonable to leave me, we're married!' that would make sense, and be much, much, much more humane. But the fact is that it doesn't.

JeanneDeMontbaston you really do not need to answer this but your comment "He knew I was bi, and he knew I planned to date women." Sounds like this would be a feature of your marriage, you would date other women while married to him ... Again, no need to reply but why get married at all?

It's quite confusing and I am sorry you are in the place you are in and now want out and don't feel comfortable with the way you could get out, or with waiting two years. It sounds like either what you envisioned your marriage would be or what he envisioned your marriage would be, is not how it turned out to be.

But for the majority of people I think marriage is more straight forward, they want to be with the person they married and they expect that person not to be with others. I agree that unfaithfulness should include same sex relationships. But I also feel that marriage legally is recognised as what it is and the laws about being able to divorce someone quickly may be there for a reason. Other people may not want divorce to be particularly easy (not necessarily me).

It does feel that you sense your relationship is being judged by this law, which seems a curious point. Would a same sex marriage, where there is adultery with an opposite sex person, be eligible for divorce on those grounds? If not, then things are actually equal, aren't they?

Have you seen a divorce solicitor? They may be able to help. I am sure that although this is an unusual situation it is not unique.

Hope you find a way forward.

No, sorry, I was referring to the situation after we had separated.

I don't think marriage is particularly straightforward for anyone, and divorce certainly isn't.

The whole point of this thread has been that, no, same sex marriages cannot be ended with adultery.

Adultery is defined as sex with someone of the opposite sex.

The law is therefore a bit odd.

Isn't it?

Legally "sex" in the context of adultery is defined as penetrative sex between a woman and a man. MPs could not agree what would legally constitute "sex" between two women. Without a legal definition of sex, there can be no legal adultery.

IGH - I will pm you, thank you.

Precisely, cleaty. Bit crap.

JeanneDeMontbaston Re "No, sorry, I was referring to the situation after we had separated." Oh, OK, sorry then that makes my comments look rather unpleasant and crass, which was not my intention.

Actually, for some of us marriage is pretty straightforward, that's my view, and my experience. I don't think it is easy, but I do think for some it is straight forward.

".. no, same sex marriages cannot be ended with adultery." It could though, a same sex marriage could not be ended if one or other partner had sex with someone of the opposite sex. As you say "Adultery is defined as sex with someone of the opposite sex."

I have already agreed I think the law should be changed but in my view it doesn't make it homophobic.

JeanneDeMontbaston why is it crap people can't define what makes lesbian sex or gay sex in law, is this really how relationships could or should be valued, whether one can define bits of sexual practice or whether one can use them to get out of a marriage? There could be heterosexual couples who cannot 'perform' PIV sex, they would also not be able to be cited for adultery!

No, your comments didn't look crass. I just regret having phrased this thread in personal terms, which confused the issue.

But I do not see how it can be anything other than homophobic to give homosexual couples less recognition and fewer rights under law, and to define gay sex as 'not sex'.

It is also horrible for hetero couples who can't perform PIV, but that doesn't mean it is less daft for gay couples, does it? That is like arguing against gay marriage by saying 'well, you can't marry your uncle, either, so really, what are the gay people worried about?' You see?

Of course it is homophobic. MPs could agree what legally "sex" would be between two men. But it is homophobic because it does not recognise legally what two women do as sex.

Because something is discriminatory against gay people does not make it homophobic (the hatred or fear of homosexuals). I think calling everything that one finds discriminatory homophobic is actually harmful to when things are genuinely homophobic. Like wise not all things that discriminate against women are misogynistic!

But this is homophobic, isn't it? So need we split hairs?

JeanneDeMontbaston you clearly think it is, me not. To me this law is not about fear or hatred it is about an archaic law that has not been updated.

For me this is not about 'splitting hairs' it is about how we define things. But anyway, I am not sure I have got much to add. I am very sorry that things have not worked out well for you in this and you are clearly frustrated and upset about the law etc. I hope things will be better and whatever route this all takes you will find happiness. All the best.

There is no requirement of consummation in same-sex marriage/civil partnership either.

Like many things in our legal system, the adultery ground harks back to the Bible.

I have written 30,000 words on this sort of stuff, in which I argued that we should abolish a requirement of consummation in all marriages and also adultery in divorce. Just put all sort of sexual infidelity under 'unreasonable behaviour'. We could then just have 'marriage', instead of the ongoing distinctions relating to consummation and adultery. That would get rid of the current two-tier system.

Apparently, lots of divorce proceedings for alleged adultery are proceeded with on the basis of unreasonable behaviour instead - that is usually easier to prove than the strict definition of adultery, especially if contested.

It is a really interesting subject, but it gave me many headaches!

Umm you do realise you posted in AIBU? Which means people will almost certainly disagree with you. Agreement or consensus is rare here.

I don't agree it is homophobic as it doesn't discriminate against homosexual people but the group it discriminates against is far wider. As the definition of Adultery is so narrow, it is very hard to divorce on these grounds, for anyone.
But in the best of English legal justice there is a nice "get around" in the unreasonable behaviour grounds which in practise means that a Judge will grant pretty much "divorce on demand".
People do not ask from the official reason for your divorce.

If you read the Relationships area you would see lots of women who have had husbands commit adultery against them, but their lawyers tell them to go for Unreasonable Behaviour. Emotionally it might not be what they or your husband want, but it is the practical answer.

cleaty I don't agree that it would be easier to define what sex is in a m-m relationship than a f-f one. Are you thinking that the m-m definition could be anal penetration by penis? Because it is not that simple, male gay couples engage in other acts and consider it sex.

I think the divorce law in the UK is pretty ridiculous in general. There shouldn't need to be any grounds for divorce - if a couple don't want to be married any more then that should be enough. We have no-fault divorce over here and all you have to do is file a request for divorce, wait at least 6 months for 'reconsideration' and then file again. If you've been living separately for two years then don't need the reconsideration period so just file and its done. You don't need the other spouse to agree either. Much better I think.

But that adultery bit - whoa that's out-dated!

I agree with you Decaff. Gay men do not necessarily wish to engage in anal sex. Ever. As said above, I think we should take the emphasis on sex out of all marriages.
I also don't think the legislation is homophobic. The legislators worked with what they could, but clumsily.
When they finally remove consummation and adultery from marriage legislation, remember you read it here first - from some random woman on an internet forum.

So, OP, how do you define gay (lady) sex and, if a straight man did it with a straight woman, would it also be adultery?

By far the most sensible option seems to remove adultery as a reason and introduce no-fault divorce. The issue then is when people want their partner's infidelity recorded.

I can see why the law, as it currently stands, is difficult (or impossible) to change and can't see it as being homophobic, discriminatory or unfair. A case of it is what it is.

but natsku (I assume you're talking about the US), you have the third highest divorce rate in the world. Surely not aspirational.

but natsku (I assume you're talking about the US), you have the third highest divorce rate in the world. Surely not aspirational

Finland not the US. Divorce rate here (as of 2014) is 39% of first time marriages. In the divorce:marriage ratio its 45% which is less than the UK.

You do not think it is homophobic that legally lesbians do not have sex??
And not all male/female couples have penetrative sex. But there is still a legal definition of what sex is.

I'll answer your questions and then you can answer mine :)

No cleaty, I don't. I don't hate gay people because they can't have straight sex. I genuinely couldn't care less if you're gay / straight or wherever inbetween.

If a straight (married) couple don't have sex then legally they aren't married. Another archaic law and while I'm not saying two wrongs make a right, I'm also saying that perhaps we're you're hung up on details.

What lesbians call sex, I call foreplay and I couldn't divorce my OH for it. That isn't taking anything away from their sex life but it's actually perfectly fair. Neither gay nor straights can divorce their partner for oral sex (or hands etc) equalling adultery and it is therefore absolutely fair. In fact, aren't you asking for special measures and to be treated exceptionally?

I don't think it's unfair to base my argument on the premise, "we are all equal but we are not all the same". If we are not the same then different 'rules' need apply. This doesn't make them discriminatory, just different.

Re-post from my question up there -

How do you define gay (lady) sex and, if a straight man did it with a straight woman, would it also be adultery? Gay (man) sex is obviously more easily definable.