THEGAYUK APRIL/MAY ISSUE 3
2014
MARRIAGE SPECIAL
sex, but this is unlikely to happen much in
practice. The precedent for this compromise
has been set by the Civil Partnership Act
2004, which also omits adultery from the list
of facts on which parties can rely when
petitioning for a dissolution, despite
mirroring the Matrimonial Causes Act 1973
in almost every other way.
The same dilemma exists in relation to the
consummation of marriages. At present,
marriages can be annulled on the grounds
which include the parties
not consummating their
union. The government
intends to exclude same
sex couples from
annulment on the grounds
of non consummation.
divorces are based on the unreasonable
behaviour of the other party rather than
adultery. Even when adultery has taken
place, the petitioner is free to cite examples of
“inappropriate relationships” in a behaviour
petition.
Given the fact that the government is seeking
to end marriage discrimination, it is strange
that they have sought to apply different rules
in practice on divorce for those in same sex
marriages as compared to heterosexual
marriages. Total equality
would mean that no
distinction is made in the
legislation.
The
government could allow
the common law definition
of adultery to develop over
time, or give statutory
guidance on the definition
if it has concerns about
uncertainty.
It has instead
decided to exclude
same sex couples
from relying on
sexual intercourse
with another
person of the
same sex to
evidence the
breakdown of
their marriage.
Legal commentators have
noted that marriage
equality means total
equality, not just in the
formation of marriages
but also in their
dissolution. If the
government intends go
ahead as planned it is
thought that the differing
law surrounding
homosexual couples and
heterosexual couples is
capable of being
challenged under equality
legislation. For instance,
whereas a heterosexual man can be divorced
on the basis of unfaithfulness with another
woman, a homosexual man cannot on the
basis of unfaithfulness with another ma n.
Whilst it is true that the government’s plans
could be challenged under equality
legislation, press reports which suggest that
unhappy wives could be forced to remain
married to adulterous husbands are far
fetched. In reality, the majority of fault based
68
Perhaps the most
interesting aspect of the
debate is the government’s
attempts to reconcile
centuries old concepts of
consummation and
adultery with the issues
that arise in modern
relationships. A more
revolutionary approach to
this particular debate may
do away with fault based
divorce altogether.
This article was written by Thomas Duggins
of the family team at Charles Russell LLP.
Thomas advises on all areas of family law,
including divorce, ancillary relief and
children matters. On the financial side, he
has expertise in cases involving family
businesses and property abroad. ∎
To find out more about Charles Russell LLP visit
their website:www.charlesrussell.co.uk