Grounds for divorce and same-sex marriage

There is only one ground on which a petition for divorce may be presented to the court by either party to a marriage and that is the marriage has broken down irretrievably.  Under current law a petitioner will not satisfy the court that it has done unless one (or more) of five facts is proved.  These are:

1. Adultery and intolerability
2. Unreasonable behaviour
3. Desertion
4. 2 years separation and consent
5. 5 years separation

The law applies equally to same-sex marriages as it does to those between opposite sexes with one exception and that is adultery.  Case law defines adultery as voluntary sexual intercourse between two persons of the opposite sex, one or both of whom, is or are married, but not to each other.

It seems rather curious but, if you cheat on your partner with someone of the same sex, it is not considered adultery even if you are in a same-sex marriage.

It feels rather outdated but sex or even intimacy between two persons of the same-sex, one of whom is married, would be unreasonable behaviour but not adultery. Indeed, such conduct is frequently cited as a ground for dissolving a same-sex marriage.

The Divorce, Dissolution and Separation Bill is progressing through Parliament with important changes to the legal process for married couples who wish to divorce, and civil partners wishing to dissolve their civil partnership. The intention is to make divorce a simple, administrative process which can be completed online.  Members of the family law profession have been advocating change for many years and the DD&S Bill will mean that irretrievable breakdown will be the sole ground for divorce. This will be demonstrated by a confirmatory statement from one party so that the current five facts will be irrelevant.  There is also provision to make a joint application for divorce.

The proposed reforms to divorce will also be mirrored for the dissolution of civil partnerships and should assist in reducing hostility and legal costs in all cases.

For further information contact Kim Beatson kim.beatson@anthonygold.co.uk 020 7940 4000

*Disclaimer: The information on the Anthony Gold website is for general information only and reflects the position at the date of publication. It does not constitute legal advice and should not be treated as such. It is provided without any representations or warranties, express or implied.*