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

mummy - yes, I know I posted in AIBU, and know to expect disagreement.

I expect I am phrasing things in a way that doesn't help - but I don't think I am being narky with people who disagree? I'm just explaining my views. AIBU also means you can't expect to comment on a thread and have the OP bow down humbly and accept anything you say as law. It means we can have a debate.

italians - thanks!

catsize - I can imagine the headaches. It seems it's incredibly complex.

here - I agree that no-fault divorce ought to be introduced.

But I disagree with you on two counts. I think something may be homophobic, and also discriminatory against a wider group as well. For example, the idea that gay men are all effeminate is plainly homophobic, but it's also got traces of misogyny in the implication that to be feminine is lesser than being masculine.

I think this law is like that. It is a bad law for many reasons, but homophobia is one of them.

I also disagree it's 'obviously' easier to define gay male sex.

So (excuse me for getting specific), if you give your husband a blow job, is that not foreplay to you? But if he gives you oral sex, or sex with a strap on, that's foreplay?

If two gay men never have oral or anal sex, are they still having sex? If straight people never have PIV, are they still having sex?

To me, these questions show why the problem isn't with defining 'sex', the problem is that people tend to equate PIV with straight sex. There's a real health issue for gay women, that they've been made to feel that what they do isn't real sex, and that is problematic both on an emotional level and because lots of young women don't get educated about safe sex, including safe penetrative sex.

I can't understand the last question. How could a straight man have lesbian sex with a woman? He doesn't have the right bits.

"I also disagree it's 'obviously' easier to define gay male sex."

PIB!

"So (excuse me for getting specific), if you give your husband a blow job, is that not foreplay to you? But if he gives you oral sex, or sex with a strap on, that's foreplay?"

Yes. Foreplay.

"If two gay men never have oral or anal sex, are they still having sex?"

no, (same goes for straight people) but we can all see how anal is easily definable. PIB

"If straight people never have PIV, are they still having sex?"

No. Not sex.

My question is. How do you define sex (so that lesbians can have 'it') because, for it to be fair, it has to be the same for gay and straight folks. Does your new definition of sex apply to straight people too?

But lots of gay men don't have PIB (I like the acronym ) sex. I have gay male friends who would be really quite offended at the idea that something they've never done or wanted to do, is held to define their sex lives.

Lesbians really do have sex. I promise you. I'd define sex as contact intended to result in mutual orgasms. Obviously, others might define it in other ways, but I don't see how you can be so certain your definition is right. Or how you can say mine is a 'new definition of sex'?

What is it about sex with a strap on that makes it 'foreplay' for you?

In English law there is only ONE ground for divorce -that the marriage has irretrievably broken down by the way so the first post is wrong. However, you can prove that thorugh various things including adultery. There is case law on that - i loved reading it as a teeanger doing a law degree - it requires vaginal intercourse between a man and woman and you do not need to ejaculate. It does not include oral sex (hence all those fascinating and true from a lawyer point of view of Clinton - I did not have sex with that woman - Clinton is a lawyer) and it does not include anal sex. However all that stuff is unreasonable behaviour anyway so it doesn't matter. We basically have divorce on demand after a year in the UK.

When the same sex bill went through the question came up of how you deal with that definition of adultery if neither party has a penis etc. Do you take dildo or whatever about other stuff lesbians do? It was decided there was not need to get nito that detail. If they sleep with a same sex partner it's still unresaonable behaviour and you get your divorce and I think that was the right decision.

Yes, eustace, that's what the thread is about.

Though, no, we don't 'basically' have divorce on demand after a year in the UK.

your same argument could be used (defining gay men by PIB) as to not define straight people by PIV sex.

I can already see legal issues with your definition. BJ etc aren't for mutual orgasms. If you're saying 'to give an orgasm' then I didn't have sex with lots or my exes (or is it the intention :) )

My definition is right because it's the current legal one. That's all it's based upon, and I can see issues with every other way of explaining it - for gay or straight sex.

Yes, it could - I (and someone else upthread) already made that argument.

What's the legal issue? Other than that BJs don't lead to orgasms?

I'm sorry I didn't say this more clearly - what I mean is, given I started this thread asking if the legal definition should be right, what do you have to add other than saying 'well, it is how it is'? If nothing, that's fine too. I'm just cross-purposes with you, because I feel as if we're going round in circles here?

I suspect that the government haven't yet been able to agree a definition of what adultery would constitute between two females. It's fairly easy, I think, to define adultery between two males but perhaps more problematic between two females.

As long as you can get your divorce then I think there is little difference between adultery and unreasonable behaviour except perhaps the cost, it's more expensive to name a third party when citing adultery as the reason.

"Though, no, we don't 'basically' have divorce on demand after a year in the UK."

We do. In England anyway. you can show unreasonable behaviour in any marriage, even the most happily married on this thread and the other party will not be able to avoid it. That is divorce on demand. It is definitely the case. Yes you have to cite unreasonable behaviour etc but as I say you can do that in any marriage - he does not pay me enough attention, at Christmas he went out for a drink; he is moody and silent - last summer on holiday he did XYZ.

I would certainly support a change so that English law just says divorce on demand after a year rather than there is only one ground - unreasonable behaviour proven by XYZ.

Same with out silly abortion law - we have abortion on demand in reality before the relevant week limit and yet we maintain a farce about women having to pretend they will be suicidal if the baby isn't aborted. We are so mealy mouthed about these areas in England. Why can't we just call a spade a spade?

I don't think showing unreasonable behaviour is divorce on demand, no.

But I do agree with you we should just call a spade a spade, in this case and the case of abortion.

We are going around in circles.

In which case; I think the current legal definition is correct because it is black and white. It could be expanded to include gay men because it is still black and white ie. penetration by a sexual organ.

Including lesbians is more difficult because including lesbian sex changes the meaning of adultery for straight people ie. penetration of a sexual organ (doesn't apply to men).

I hate to be crude but I can't think of a better word than 'fingering' which isn't adultery at the moment but may have to be included if the definition of sex is to be one which includes what gay women and think of all the right-on wankers who would be out protesting if 'their' form of adultery was changed because of homosexuals.

At the risk of going off on a tangent, marriage (in the UK) is a Christian thing and therefore restricted in certain ways and while I love gay pride marches sticking two fingers up to bigoted CofE (or other denomination) assholes, you can't re-write an entire countries laws because of a perceived injustice.

Is it always wrong to give the advice "let sleeping dogs lie" or "pick your battles"?

edit: "...is correct and fair and should be left alone because..."

It is based on that idea that what lesbians do, isn't really sex.
Just abolish the adultery reason for divorce, easiest way forward.

But adultery SHOULD be grounds for divorce.

OP I've been considering your predicament and what keeps sticking for me is this: if your ex doesn't consider it unreasonable behaviour for you to be in a relationship with another person- why does he want to divorce you?

I'm sorry if this is making it about your personal situation and you don't want it to be, but I do think you've been given bad legal advice and there is no way you need to be waiting 2 years to divorce.

But if we got rid of adultery as grounds for divorce altogether, and just kept unreasonable behaviour (of which adultery could be cited as one type), in the OP's personal situation her H would still have to divorce her for unreasonable behaviour, which he doesn't want to do.

So I see how this would be much less homophobic, but I don't see how it would help the OP's specific situation.

right-on wankers who would be out protesting if 'their' form of adultery was changed because of homosexuals.

Does being a right-on wanker mean having sex?! (sorry herecome....couldn't resist!)

If you abolish the idea of consummation then you remove the option for a marriage to be annulled if a gay man marries a heterosexual woman under false pretences and then refuses to consummate the marriage,something which is doubly hard for the woman concerned if he plays the 'good Catholic' card and insists on no sex before marriage.

"It is based on that idea that what lesbians do, isn't really sex.
Just abolish the adultery reason for divorce, easiest way forward."

Playing devils advocate, why should the straights give up something for the gays? Surely getting rid of bigotry is treating us all fairly, not setting different rules for different people. If you have 3 definitions for gay lady sex, gay man sex and straight sex then you are, by definition, treating everyone differently.

As an aside, if a (man-woman) marriage can be anulled if it isn't consummated, how does the law 'deal with' (for want of a better term) gay marriage?

Except women don't have a penis, so it is impossible to have the definition of sex for lesbians that there currently is for Het people. You could change the definition to genital contact for sexual pleasure.

Like Eustace I've read some of the old case law on adultery and it's true. Only piv will do but it only needs to be a single penetration, no repeat thrusts required. Same for consummation.
There were also some bizarre and very specific grounds constituting provocation for murder, though these are now obsolete (but would be a major digression from this thread.)
So as far as same sex marriages go, the law is pretty unbalanced. What to do about it (alternative definitions of adultery) I just don't know. Whether piv has occurred is a yes/no question. Other forms of sex are less "measurable" bit last because individuals have their own ideas of what constitutes "sex" and "infidelity"

In which case; I think the current legal definition is correct because it is black and white. It could be expanded to include gay men because it is still black and white ie. penetration by a sexual organ.

Including lesbians is more difficult because including lesbian sex changes the meaning of adultery for straight people ie. penetration of a sexual organ (doesn't apply to men).

I don't follow that. Isn't that, well, presuming lesbian sex is defined by passivity (being penetrated)? Which isn't necessarily the case.

You might just as well say straight sex is defined as penetration of a sexual organ, surely, mightn't you?

scary - he doesn't really want to. Which is rotten for him. But he particularly doesn't want to for something he thinks is a lie.

I am aware that (like a lot of stuff around divorce) it's emotional, and the law is, or tries to be, pragmatic, and that that is a difficult mix.

The problem with all our laws is they developed over hundreds, sometimes thousands of years in many areas of law. no one, not even we lawyers, think all lawyers are perfect and we'd love to start from scratch and design a brand new family law or contract law or whatever but that's very expensive and difficult so you just about always get lawyers of new law inserted on top of older laws.

in my life time and many other people's it was impossible to rape your wife as for hundreds, probably thousands of years, when you married you were his - he could have sex whenever he wanted whether you wanted it or not and that is still a major part of many religions including Islam and the national law of plenty of countries so in the light of that history you can see why the law regards things like if a marriage wasn't consumated then it could be annulled. I knew a man actually who did not have a complete penis due to an accident and his first wife was able to have the marriage annulled rather than having to divorce him, because of course they never had legal consummation.

If we just changed English divorce law to divorce on demand after a year (which is the practical reality now anyway) that would be a lot more logical than all these issues of whether there was penis in the vagina which of course mattered in the old days as that was your hymen broken and you were damgaed goods, no longer a virgin, worthless, spoiled, dirty, used and indeed you might well be pregnant.

I think the concept of adultery is a lot more complex than that Eustace. :Laws around marriage certainly protected men and treated women badly but they also, sometimes, have protected women. Not all people, male or female woudl want 'marriage' to be boiled down to opt out when you feel like it. If that is what some people mean by marriage maybe we should have a form of temporary marriage, which on signs on for and renews, lie life insurance. I am not speaking personally, I think marriage should be able to be ended for whatever reason but not necessarily quickly, not necessarily instant divorce.

I also keep failing to see how this law is disadvantaging homosexuals! People whose partner has gone of with someone of the same sex, yes, gay people not so much.

Sorry... which one signs on for and renews, like life insurance.

(Some countries do have a form of this which enables men to sleep with prostitutes they legally marry for a brief period of time... the whole thing is just not so easy to pick pieces out without unravelling some aspects of it, IMHO!