Following the legalisation of same-sex marriage by virtue of the Marriage (Same Sex Couples) Act 2013, hope of equality for the LGBT community was reinforced. However, the current legal definition of adultery under the Act suggests that our law is inherently limited in its view of same-sex relationships.
There may be trouble ahead …
The Act itself is controversial, as it legalised same-sex marriage under new legislation instead of amending the existing Marriage Act. Many have argued that this does not mean equality, with the New Statesman saying ‘Separate and different are not equal.’ There is a specific point, however, that has stayed consistent across the acts:
“Only conduct between the respondent and a person of the opposite sex may constitute adultery for the purposes of this section.”
This is the definition of adultery for both same-sex and mixed-sex couples and brings to attention another antiquated definition in the law. The law in England appears to continue to encourage a binary view of sexuality.
Where is the love?
When debating the Bill in the Commons, Conservative MP Nadine Dorries emphasised that the drafted Bill did not create equality but instead highlighted ‘the inequalities that will always exist, because the definition of marriage is based on the definition of sex’. Labour MP Helena Goodman reiterated this sentiment rather more bluntly, asking ‘why [is] the Bill fixating on biological heterosexual intercourse?’
Sex classifications have historically given further clarity to legislation, allowing less scope for confusion in the courts. But with an estimated 1.1 million LG&B individuals in the UK and a further 650,000 who are transgender and non-binary, gendered definitions are outdated and offensive to many. Nonsensically, this portion of the population are incapable of committing legal adultery or may be proved innocent upon transition. It is clear that the ever-increasing LGBT population cannot be ignored.
Craig Whittaker has commented on the Government’s decision to drop ‘equal’ from the title of the Bill ‘probably because it does not promote equality’. Admittedly it is true that filing for divorce on alternate grounds (namely unreasonable behaviour) has little to no effect on financial settlements and child arrangements.
Many call for equality but others suggest that on grounds of unreasonable behaviour one can specify sexual infidelity. The Equality Network in Scotland (an LGBTI rights group), for example, held several focus groups on the matter and released the following statement:
‘We agree with the approach taken in the bill, which applies the law on adultery and other sexual infidelity equally to same-sex and mixed-sex marriages, and allows divorce on grounds of sexual infidelity for all marriages.’
This pragmatic viewpoint reflects the realities of the LGBTQIA community. With so many battles to fight, why another? In the struggle to be equal the community is often told that it is sufficient to be lawful. But it is really enough?
This article originally appeared on the Fisher Meredith website in February 2017.
For more information, please contact our Family & Divorce Team on 020 7631 4141.