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Divorce and the matter of gay adultery

10th August 2015

Following a BBC report, subsequent press coverage has raised the issue of ‘gay adultery’ in the context of divorce cases. The law is clear: adultery must involve a man and a woman, not a same sex liaison, which could, of course, be unreasonable behaviour. Unsurprisingly, this has provoked a storm in the Twittersphere.

It seems to me that the press and public outcry was an entirely emotional response rather than one founded in legal principle.  In fact, the person described in the article was able to progress their divorce, presumably to a conclusion, based on unreasonable behaviour rather than adultery.

There is no consensus on the rights and wrongs, if any, and the BBC article notes the outcome of an Equality Network focus group which did not feel that there should be a change in the law to include gay adultery.

Routinely however, people whose marriages have recently broken down do have to leap over the, albeit low, hurdle of unreasonable behaviour. This means that to some extent, however mildly put, some mud has to be slung in the direction of their spouse.

For many this is as abhorrent as not being able to base a divorce on a gay man or woman who has had a sexual relationship, and in terms of numbers a far bigger issue.

Changing divorce law to a no-fault based irreconcilable breakdown process would avoid the two fault based facts of adultery or behaviour which many now have to use.

Rather than focusing on one particular issue, an overall review of divorce law is long overdue, particularly bearing in mind the current legislation dates back to 1973 when social mores were very different.

Let’s hope that the government will review the need to prove divorce by raising the fault of either party and recognise that, even when couples have not been separated for two years, they still should be entitled to file for a divorce without having to accuse the other.

Government might also like to review the exorbitant hikes in court fees.  Divorce petition issuing fees are set to rise from their current £410.00 to £550.00.  In the time that I have been in practice I have seen the issuing fee rise from £40.  Again this is an issue for many of modest means who may want to do their own divorce but in some sense are put off the court issuing fees.

Perhaps what the gay adultery issue shows is that the system needs overhaul from top to tail rather than in one discreet area.

Jim Richards, family department.

Family Law
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