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AIBU?

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Original poster

To be shocked at the divorce laws for same sex marriage re: adultery?

87 replies

Bogeyface · 21/09/2016 02:02

Probably am, probably everyone else knew this except me but this is taken from the gov.uk website

"Adultery

Your husband or wife had sex with someone else of the opposite sex, and you can no longer bear to live with them.

It doesn’t count as adultery if they had sex with someone of the same sex. This includes if you’re in a same-sex marriage.

You can’t give adultery as a reason if you lived with your husband or wife for 6 months after you found out about it."

So, if you are a lesbian and your wife has sex with another lesbian then you cannot divorce her on grounds of adultery! It only counts if it is PIV sex!

I am sure, as I said, that this is just me late to the party but surely when the marriage laws where changed to allow same sex marriage then the divorce laws should have been updated at the same time? Interestingly, adultery is not grounds for ending a civil partnership, so perhaps the best thing would be to end it being grounds for divorce too in order to have parity across the board?

OP posts:

LRDtheFeministDragon · 21/09/2016 08:23

gnome - no, doesn't make sense. You can definitely cite adultery even if one or both of you is unable to have children.

SecondTimeIsBetter · 21/09/2016 08:30

12 years ago I divorced my ex on the grounds of adultery - he was happy to accept the grounds but when I handed in the papers to the court the clerk looked through it and commented "oh we don't get many of these!"
Most people cite unreasonable behaviour, but due to my religious beliefs it was important for me that the grounds were adultery.
At the moment the legal and biblical definition of adultery are tied together causing an anomaly for same sex couples - this should be addressed in law.

Collaborate · 21/09/2016 08:38

It really doesn't make a difference.

Upthread someone posted a man saying they'd take the wife to the cleaners by proving adultery. Doesn't happen. It has no financial consequences on divorce.

If your spouse has a same sex relationship with someone else, whether your marriage is same sex or not, that is not called adultery. It never was. It's one of the first thing you're taught in family law at university. Adultery must involve penetration of the vagina by a penis.

So, if you want parliament to redefine adultery, could you really imagine MPs debating what constitutes adultery? I can't.

The following, if done between heterosexual couples, doesn't constitute adultery:
Anal sex
Oral sex
Fingering
Penetration of the vagina with a toy
Masturbation

So in that respect same sex couples cheating on their spouses are treated exactly the same as heterosexual couples. They simply lack the necessary equipment to be able to commit adultery.

As a family law solicitor I have had many a client who knows their spouse has committed adultery, but because they cannot prove it, or the other won't admit it, they have to proceed on the basis of unreasonable behaviour instead. That UB is their sexual relationship with another person. I tick a different box on the form, but nothing else differs from an adultery petition. At all.

quasibex · 21/09/2016 08:38

A little while an MP proposed a range of proposals to make divorce fairer and less convoluted than it currently is. One of those was adultery to be classed as a non platonic relationship with anyone other than your spouse.

Another key change they wanted was to have a no blame divorce option where a couple could just agree they didn't want to be married anymore but no one was at fault (as I understand it legally someone has to be to blame for the breakdown of a marriage whereas in reality you can just both change enough over the course of the years that you have literally no reason to stay married but no legal reason to leave).

They failed miserably because opponents trumpeted this was the end of family values and made a mockery of marriage. I don't think it even made it past the first post in terms of parliamentary process.

To be fair, it does make too much sense for a government to implement...

LRDtheFeministDragon · 21/09/2016 08:41

So, if you want parliament to redefine adultery, could you really imagine MPs debating what constitutes adultery? I can't.

col, as someone has already pointed out upthread, they already have discussed it.

And it has been discussed many times (surprised you didn't learn this at university?) across history.

Legal definitions change. That is the point. You might as well say 'oh, same-sex couples can't get married. Marriage is defined as between a man and a woman. It always was'. This is true, but times change.

Collaborate · 21/09/2016 08:45

The only likely change on the law in this area would be to either make divorce no-fault (my preferred option) or drop adultery entirely, and accept all non-spouse relationships are dealt with as unreasonable behaviour.

Collaborate · 21/09/2016 08:50

sashh Oh and I forgot to add, what if you are in a loving lesbian relationship, you are married and you want a child.

You can have the expensive treatment at an infertility clinic, but many couples have asked a male friend to DTD.

Is that cheating? Legally it is adultery, but if you both want a child, agree the friend would be a great dad, he is fine abut it etc etc.

That would not count as adultery. The actual wording is "the Respondent has committed adultery and the petitioner finds it intolerable to live with the Respondent". There must be a link between the adultery and the finding it intolerable. So in your case, or in the case of a couple who agree to group sex, one cannot divorce the other for adultery. They consented to it at the very least, or perhaps encouraged it.

prh47bridge · 21/09/2016 08:52

Adultery is rarely used as a grounds for divorce these days. Most lawyers would advise using unreasonable behaviour instead. There is nothing to be gained from citing adultery. It makes no difference in terms of the outcome (including the finances). And if the other partner defends the divorce you will have to prove that they actually had sex. Indeed, even if we are dealing with a man and a woman, you would have to prove that they had PIV sex. Oral sex and anal sex (or, indeed, anything else that doesn't involve PIV) does not count.

I suspect the government decided that defining what actually constitutes adultery when dealing with a spouse straying with someone of the same sex was too difficult and that unreasonable behaviour was adequate to cover it. Certainly some gay rights groups that have debated the issue think that unreasonable behaviour is sufficient and that there is no need to change the law on adultery. And some gay rights groups believe that the way to deal with this anomaly is to remove adultery as grounds for divorce completely.

IrenetheQuaint · 21/09/2016 08:53

Divorce law is bizarrely antiquated, isn't it? I guess that reforming it has just not been on the list of recent government's priorities.

It should be so easy: if one of both parties state they don't want to be married any more they can be given an official divorce after (say) six months. What more does anyone need?

IrenetheQuaint · 21/09/2016 08:57

"You can have the expensive treatment at an infertility clinic, but many couples have asked a male friend to DTD."

This seems somewhat unusual to me too.

When one of my lesbian friends was TTC with a known donor (using a kit from the internet) several of her acquaintances asked her if she would be shagging him. She replied, ' If a woman in a heterosexual relationship with a man who had a zero sperm count was trying to conceive with a donor, do you think she would shag the donor then?' They got the point.

People are weird about lesbians and sex.

NothingIsOK · 21/09/2016 09:47

Oh, I just noticed the word... Adultery, as in unadulterated, meaning not mixed or polluted. So obvious then that the meaning is to do with unpolluted lines of inheritance and genes.

LRDtheFeministDragon · 21/09/2016 10:01

Yes, I'm sure etymologically it has to do with genes.

LurkingHusband · 21/09/2016 10:20

I think the nub of the problem is that marriage (or rather control of marriage) was a powerful tool in the feudal society we emerged from, and which - frankly - not only are we not far from, but seem to be returning to.

Being able to decide who can and cannot marry, and hindering divorce are all techniques to subjugate women, and ensure the family silver stays in the family.

PeachMelba78 · 21/09/2016 10:38

*Oh and I forgot to add, what if you are in a loving lesbian relationship, you are married and you want a child.

You can have the expensive treatment at an infertility clinic, but many couples have asked a male friend to DTD.*

Is that cheating? Legally it is adultery, but if you both want a child, agree the friend would be a great dad, he is fine abut it etc etc.

Legally if you are in a same sex marriage or civil partnership, and have sex with a man, get pregnant and have a baby, then he will be the legal second parent, whereas if you use donated sperm without DTD then your civil partner/ wife will be the second parent. I have experience in this, having used sperm from a friend twice, my wife and I are on the birth certificate for both children, we each had a pregnancy and the donor has no legal rights (although he is called Daddy)

PeachMelba78 · 21/09/2016 10:38

Oops bold fail!

LRDtheFeministDragon · 21/09/2016 10:44

Legally if you are in a same sex marriage or civil partnership, and have sex with a man, get pregnant and have a baby, then he will be the legal second parent

I don't think that's true? If you are married, the child is presumed to be a child of that marriage, isn't it?

LikeDylanInTheMovies · 21/09/2016 10:57

I find the whole concept of having to cite a grounds for divorce odd. If you no longer wish to be married to someone that should be grounds enough. Having to justify the reason serves to stigmatise divorce.

PeachMelba78 · 21/09/2016 11:02

LRD yes it is true! In Civil Partnerships and same sex marriages for lesbians, if you have intercourse and a baby, then legally that man is the baby's father. There are cases of it happening!

prh47bridge · 21/09/2016 11:08

as someone has already pointed out upthread, they already have discussed it

I don't think they have - at least, not recently. As far as I can see Brasty is wrong when saying that MPs could not agree what constitutes sex between two women. There does not appear to have been any debate on the subject.

The legislation for same sex marriages, like the legislation for civil partnerships before it, excluded adultery as grounds for divorce. Some MPs opposed to same sex marriage used this to argue that this was not equal and meant that there was no requirement for same sex partners to remain faithful, and that therefore same sex marriage should not be allowed. I cannot find anything to indicate that there was any attempt to debate how adultery should be defined.

VladmirsPoutine · 21/09/2016 11:09

What's the issue with citing adultery as a reason if true wrt hetero couples?
I've never been married or know too much about this.

LRDtheFeministDragon · 21/09/2016 11:10

peach, the .gov site doesn't seem to be saying so?

It says that if a couple is married when they have a baby, they are both responsible for it.

There is then a section specifically for same-sex couples, which says that if a couple are civil partners at the time of fertility treatment, both have responsibility - but it doesn't comment on marriage, so marriage is clearly covered by the same rules as heterosexual marriage.

LRDtheFeministDragon · 21/09/2016 11:13

prh, this is a Telegraph link about the discussions: www.telegraph.co.uk/news/politics/9827596/Gay-marriage-bill-opens-door-to-abolition-of-adultery.html

It is within the context of legalising equal marriage, you're right, but part of that discussion was explicitly to do with how adultery could be defined.

LurkingHusband · 21/09/2016 11:15

I find the whole concept of having to cite a grounds for divorce odd.

Depends on what your initial view of marriage is ....

If you no longer wish to be married to someone that should be grounds enough.

Depends on what your initial view of marriage is ....

Having to justify the reason serves to stigmatise divorce.

Depends on what your initial view of marriage is ....

There are 2 components to marriage - at least in the UK. The legal/civil side, and - like it or not - the religious side. And whatever your personal view of religion is, this is an area where it is painfully obvious the UK is a Christian country, where the CofE plays a part in the legal system - in this case marriage.

As we have seen with same-sex marriage, religion plays a big part. Religious leaders of all stripes would be vocally opposed to any attempt to redefine marriage to make divorce easier. And since religions seem to be codified misogyny, it's hardly surprising that marriage is still unequal and unfair.

prh47bridge · 21/09/2016 11:16

And it has been discussed many times (surprised you didn't learn this at university?) across history

I don't think this is true but, even if it is, why should that form part of a law degree? All that students need to know is the current legal definition of adultery as defined by case law. Unless and until parliament decides to change the definition any discussions they have are irrelevant.

LikeDylanInTheMovies · 21/09/2016 11:19

But Lurking I married in a registry office. I entered a civil contract. I certainly didn't enter a religious one or one where I should be forced to dream up or justify the reasons why I no longer wish to be married to that person.

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