Sex and divorce for same sex couples

Marriage is now, we are generally led to believe, the same for heterosexual and homosexual couples, but is it? There remains an important different when it comes to the legal role which sex plays in same sex and heterosexual marriage, both at the beginning, in the consummation of the marriage, and the potential end, with adultery. What is the difference, and does it matter?

Consummation of Marriage

If a marriage between a man and woman is not consummated due to incapacity or wilful refusal, the marriage is voidable. This means that the parties will be able to treat the marriage as not having occurred, and the one-year bar (parties are unable to divorce in the first year of marriage) does not apply. Should they choose, parties can apply for a certificate of nullity without delay.

However, the legislation was amended to confirm that non-consummation cannot be a ground on which same sex marriage is voidable because of difficulties defining sexual intercourse within same-sex marriages. Instead, if either spouse wishes to end their marriage in those circumstances they would have to wait for a year and apply for a divorce based on the other’s “unreasonable behaviour”.

Adultery in Same Sex Marriages

Pending the inception of “No Fault” divorce, due in April next year, when making an application for a divorce the party filing the application has to prove the irretrievable breakdown of the marriage. This can only be done by establishing one of five facts:

1. Adultery
2. Unreasonable behaviour
3. Desertion
4. Two years separation with consent
5. Five years separation

In practice, parties are often advised against relying on adultery as the “fact” that has caused the irretrievable breakdown of the marriage unless the other party has already admitted the adultery and they are certain the petition will not be defended. This is because “proving” adultery is difficult and unpleasant.

Adultery is defined as voluntary sexual intercourse between a man and woman; sexual intercourse must involve penetration of the woman’s vagina by the man’s penis, however slight. The legal definition of adultery was clarified by the Marriage (Same Sex Couples) Act 2013, to confirm that adultery can only be committed between people of the opposite sex.

This means that, if your spouse has sex with someone of the same sex as them, that will not be treated as adultery and that “fact” will not be open to you when applying for divorce. In practice, anyone who finds themselves in this position will be limited to petitioning for divorce on the basis of unreasonable behaviour.

Does it matter?

In my view, yes it does.

Firstly, non-consummation. The law in relation to non-consummation is clearly outdated given the increasing recognition of asexuality and the fact that the relationship between marriage and sex is not what it once was. Putting that to one side, if it is available in heterosexual marriage, it must be equally available to same-sex couples who find themselves wishing to end their marriage due to their partners incapacity or wilful refusal to have sex with them. Those spouses are potentially disadvantages as they would have to remain in the marriage for at least a one year before divorce would become available and they may have preferred not to divorce for personal or religious reasons. There may also be negative financial consequences.

Secondly, it cannot be right that Adultery as a fact, no matter how rarely used, is only available if the “guilty” spouse has had sex with someone of the opposite sex.

Baroness Butler-Sloss raised this issue in the House of Lords in June 2013, as she highlighted at the time, adultery is a fundamental breach of trust within a marriage. This is felt equally as strongly by heterosexual and homosexual couples and the difference undermines the value of same-sex marriage. She assumes, I think correctly, that this is the case because of “a failure to come to terms with more than one type of sexual relationship” and proposed an amendment that would have seen the definition of adultery amended to include “a sexual act with a person of the same sex similar to adultery”. She was met with resistance, primarily based on it being too difficult to craft a suitable alternative definition to encompass both male and female same-sex relationships, and the amendment was withdrawn.

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