IS SAME-SEX INFIDELITY THE SAME AS ADULTERY?

The short answer to this question is no. Sheryl Perry of Sheryl Perry Solicitors explains, why when it comes to divorce, this isn’t as cut and dried as it seems.

For most married ‘husband and wife’ couples the term ‘adultery’ means that one person has cheated or been cheated on by their spouse and this is more than enough reason on its own to petition for divorce. In English law, we have 5 main grounds for divorce which are:

  • Unreasonable behaviour
  • Desertion
  • Separation for more than 2 years – with both parties in agreement
  • Separation for more than 5 years – without any agreement
  • And of course, adultery!

Proof has to be provided of at least one these grounds before a divorce petition will be granted and in order to prove ‘adultery’ has been committed, we really need to understand exactly what this term means under English law.

What does ‘adultery’ mean?

“Voluntary sexual intercourse between a man and a woman who are not married to each other but one of whom is married to someone else”. Straightforward enough for opposite sex couples, but what does this mean for same-sex couples? It means the ‘adultery’ definition cannot apply due to the physiological ‘mechanics’ of having sex with a same-sex partner, so the term ‘adultery’ at this moment in time, isn’t physically, thus legally, possible.

Whilst the current legal definition of ‘adultery’ potentially implies that same-sex infidelity isn’t as serious as opposite sex unfaithfulness, it is a massive grey area, full of blurred lines, confusion and double standards. Same-sex infidelity can be used as grounds for divorce but only under the provision of ‘unreasonable behaviour’, not ‘adultery’. 

Why is it different for same-sex infidelity?

We have to remember that today’s divorce law was established by the Matrimonial Causes Act 1973, that’s almost half a century ago and back then, sexual relations between two men had only just been legalised. Did you know that same-sex relations between two women have never been criminalised? There were certainly no plans to allow same-sex unions like the civil partnership we have today, let alone a legal marriage. 

Even with the progression we have seen since 1973, as we begin 2021, we must accept that legally same-sex infidelity is not the same as adultery, it is classed as ‘unreasonable behaviour’. 

Change is coming

The government’s Divorce, Dissolution and Separation Act 2020 which was passed in June, will remove the concept of ‘fault’, making citing a reason for divorce redundant as it just won’t be required anymore. The 5 grounds for divorce listed at the top of this blog will be replaced by a new requirement to submit a statement of irretrievable breakdown. Further changes will include provision for a joint application; we will also see the old Latin-isms go as ‘decree nisi’ and ‘decree absolute’ will be replaced with ‘conditional order’ and ‘final order’. All of these changes apply fairly to the dissolution of civil partnerships as well as marriages.

The government is still working on the changes that need to be implemented and the new ‘no fault divorce’ is planned to come into effect in the autumn of 2021. So, whilst current rules around adultery are not ideal or deemed equal, we only have to wait a little longer for the changes to ring in.

Right now, the reality is that it makes very little difference in obtaining a divorce in the unfortunate event of same-sex infidelity; it just means a different box has to be ticked when filling out the divorce petition. When citing ‘unreasonable behaviour’ as the reason for a marriage breakdown, the petition will  be assessed by the judge who will make the decision on whether or not a spouse’s behaviour is serious enough to merit divorce. In cases of same-sex infidelity, this can be quite a simple judgement.

Need professional help?

If you find yourself in a similar situation and are unsure of where you stand and what your next steps should be, please contact Sheryl Perry today for a free 30-minute consultation to gain legal clarity and peace of mind.

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