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

But, italian, what if someone gay has a partner who sleeps with, well, someone else gay? Is it really fair they can't cite adultery? Because I think emotionally, it does feel like saying 'well, your sex is lesser. Straight people have this extra thing. Not you.'

JeanneDeMontbaston re "But, italian, what if someone gay has a partner who sleeps with, well, someone else gay? Is it really fair they can't cite adultery? Because I think emotionally, it does feel like saying 'well, your sex is lesser. Straight people have this extra thing. Not you.'

I've said repeatedly I think gay people should be able to be cited as being a partner in adultery. I think it is grossly unfair that a man can go off and have an affair with another man and his wife can't legally call what happened adultery! It doesn't make it homophobic! it's nothing to do with fear or hatred, (phobia) it's a quirk of the law.And I agree it should be addressed, but not by throwing out adultery as a reason for straight people to claim that divorce on the grounds of adultery.

Straight sex can make a baby (not all the time, I am living proof of that one, my first baby was born due to IUI not PIV!) and plenty of people are too old to be reproductive in their sex. But it's a biological fact that heterosexual sex can result in a baby, gay sex doesn't. Is that homophobic?

But the key thing for me is that the value of a relationship is not whether it can produce a baby, or whether it can be cited as a reason for divorce because of adultery!

That's my thinking, yes, make the law as equal as one can, but recognise these things are not the same, and one can't simply unpick 1000s of years of law relating to heterosexual sex because one is gay or lesbian. And because one can't do that, it is not homophobic.

But by all means, define gay sex in law, genital to genital contact, any body part to genital contact? That's pretty broad. What about affairs which do not result in intimidate physical contact but do result in emotionally intimate contact?

I just do not think there is a clear answer to all this but the fact there is not, is not because our laws are homophobic, it is because defining what one person means by sex is very broad. I always agreed with Clinton, ""I did not have sexual relations with that woman ..." But what he did was pretty appalling.

I truly do get where you are coming from.

Adultery as a reason for divorce is a very established thing, both in law and in the psyche of people. I am sure gay people feel just the same. You are right to say that the law should reflect this

I am speaking practically and not about your personal situation.

italian - you're being very diplomatic and kind, and I do respect your position too.

But I can't agree it's not homophobic. I asked if you thought it was fair gay couples can't cite adultery - you reply it should be possible to cite them as a partner in adultery, if a man has an affair with another man while married to his wife. It's not your fault, but you are automatically defaulting to the idea that homosexual relationships aren't the real issue, and don't really matter - because what I actually asked was whether it was fair that gay couples can't cite adultery. Not whether it was fair that a straight couple can't cite a gay adulterous third party in a divorce.

Obviously, it's not homophobic to say that gay sex can't make a baby. But the law on adultery isn't only concerned with reproduction. If it were - as we've said upthread - it would have excluded couples past the age of reproduction, and it doesn't. The legal system recognises that, even when a couple cannot actually reproduce, they may still seek a divorce for adultery.

We could say that is a loophole or a glitch, because it must affect only a minority of straight couples - but then, only a minority of couples are gay, so the same 'but it's only few people' argument applies.

Likewise, saying we can't unpick thousands of years of laws relating to heterosexual sex doesn't really make sense, because that is what equal marriage has already done - isn't it? If two gay people marry, children born to that couple are legally theirs. We all know that, biologically, this is not so, but the law has got over that problem. It doesn't therefore seem impossible it could get over this one, too.

It's the inconsistency of it that seems homophobic to me - the fact that equal marriage is legal, but the implications of that haven't been properly integrated, as if they don't matter.

I have to re-iterate that I could get anyone on this thread in England a divorce on the basis of unreasonable behaviour, doesn't matter how hapyp your marriage is and thus it is divorce on demand and we would find it simpler to change th elaw to that rather than the one ground we have which is marriage fundamentally broken down (which can be proven in various ways).

I certainly agree that the current definitions of things like adultery were based in the past when things like virginity at marriage and things like that mattered. We are where we are. I don't think any Government however will be rushing to change divorce law as it's a hot potato and the issue of adulty in gay married people was looked at in considerable depth before the gay marriage law was passed and it was decided people will just have to rely on unreasonable behaviuor as you have to rely on if your huisband has anal sex with your sister or an emotional affair with your cousin.

JeanneDeMontbaston hi re "italian - you're being very diplomatic and kind, and I do respect your position too."

Thank you, I thought I was coming across as rather crass in fact, so it is good to know I am not!

Re "But I can't agree it's not homophobic"

I think what I am struggling with is that your definition of homophobic, which seems to me to mean discriminatory, is not what the dictionary defines as homophobia.

My example to explain this is the difference between sexual discrimination and misogyny. I once attended a church where women could not be leaders, this was the case for many many churches through out time, until fairly recently, and I would see this practice as discriminatory against women, but not misogynistic.

Likewise, I see the laws that differentiate between straight and gay people as discriminatory, but not necessary homophobic.

The danger I see with using the term homophobic, when what might be meant is discrimination, is that when things really are about fear and hatred (which is what phobic means) the strength of that word is diminished because homophobic as a word loses some of its meaning.

Plus words like 'homophobic' can be used (not necessarily by you) to shut down discussion.

Re "I asked if you thought it was fair gay couples can't cite adultery - you reply it should be possible to cite them as a partner in adultery, if a man has an affair with another man while married to his wife. It's not your fault, but you are automatically defaulting to the idea that homosexual relationships aren't the real issue, and don't really matter - because what I actually asked was whether it was fair that gay couples can't cite adultery. Not whether it was fair that a straight couple can't cite a gay adulterous third party in a divorce."

I am sorry if I was not clear, I absolutely think anyone should be able to cite a sexual relationship with another person outside the marriage as reasons for adultery.

But the reason that we are discussing this here is because we are specifically talking about this situation. If we were talking about a gay couple where one of the people had an affair with another same sex person, I would also agree that that affair was sex and therefore was adultery.

Re "But the law on adultery isn't only concerned with reproduction." No it is not but I do wonder if that is where it has its origins, about the man knowing his wife only had his babies etc.

Yes "...the legal system recognises that, even when a couple cannot actually reproduce, they may still seek a divorce for adultery." And I can imagine that would be very, very hard thing to define, with modern technology it would be very difficult to determine whether a woman could definitely not have a baby with her husband at almost any age!! BUT I take your point.

Re "only a minority of couples are gay" I still believe in equality for people even if they are in the minority. It is your terminology I was having issue with not your premise! You know that, I've said that a lot.

Re "Likewise, saying we can't unpick thousands of years of laws relating to heterosexual sex doesn't really make sense, because that is what equal marriage has already done - isn't it?"

I think equal marriage has extended things not unpicked things.

Re "If two gay people marry, children born to that couple are legally theirs. We all know that, biologically, this is not so, but the law has got over that problem. It doesn't therefore seem impossible it could get over this one, too."

Of course not, and I feel it is a lack of 'imagination' that led to those people discussing gay sex for a long while and not being able to come up with definition of what adultery may look like for a gay couple.

My concern here is that this seems to be your main concern in the fact that your marriage has broken up and you have a new partner.

Maybe people like Stonewall should be campaigning about this.

But at the end of the day please just look after yourself and work this one through.

Wishing you all the best.

As Eustace2016 says, adultery applies only to vaginal intercourse between a man and a woman. If you widen it to same sex relationships you have to also widen the range of activity that qualifies. Some of that would not be contentious but there would undoubtedly be some activities that some people would regard as adultery while others would not. Right now we have a clear dividing line.

Most lawyers will recommend that you don't allege adultery but go for unreasonable behaviour instead on the grounds that it is less likely to lead to a contested divorce and, if it is contested, it is hard to prove.

JeanneDeMontbaston just realised that the woman having a baby much later in life would not be down to sexual adultery! But it shows that in many ways adultery and the possibility of children can be quite linked in the mind, because I do feel a lot of our previous laws were around a kind of 'ownership'. But of course I don't want to throw the baby out wit the bath water, I do believe in marriage.

What I do wonder if why so many people still choose to marry. I think wanting to leave a marriage is always going to be problematic, but I also very much believe in divorce!

prh is right that even if there is adultery it often results in a smoother divorce to use unreasonable behaviour. In fact in our divorce we sent my husband's solicitor my draftu nreasonable beavhiour petition so he could remove any parts he didn't like - yes in the real sensible world of better done divorce you aren't out to get each other however much you hate the other person, but to get it done quickly without damage to children. Gone are the days when adultery was a ground for divorce - the only ground now is marriage irretrievably broken down. In the old days back the vidence of adultery- was key.

Although even in the 1930s etc if you'd had a lover your husband might even fake an encounter with a prostitute recorded by an investigator and you cite his invented "adultery" as damage to your reputation as someone female, from adultery was huge (as in many ways you were property and then became damaged goods) and damage to him was nothing. It has always been a difficult issue. However now it is withering on the vine anyway so despite quite come debate as the drafts of the gay marriage bill was going through the Government decided it was too difficult an issue to tackle and although it's unfair (I raised it at the time) it was the only practical way to deal with it given no one has stomach to say it's divorce on demand rather than divorce on plucking a few examples of unreasonable behaviour - he snores, he ignores me, she spends all the time chatting to her mother or whatever.

No fault divorce ftw.