The BBC has recently reported that a woman could not divorce her husband of 20 years on the basis of his adultery because although he had engaged in 10 separate affairs while they were married, those affairs were with men rather than women.
She is part of a group of spouses in similar positions who “care hugely about the betrayal and want to know that somebody somewhere has recognised that”.
Homosexual adultery laws
UK case law currently defines adultery as voluntary sexual intercourse between a man and a woman who are not married to each other but at least one of whom is married. In addition to this, adultery does not include any other kind of sexual contact.
Instead of issuing proceedings on the basis of adultery, a spouse whose partner has been unfaithful with someone of the same sex must therefore issue on the grounds of unreasonable behaviour. This means that they must illustrate, with examples, that the other party has behaved in such an unreasonable manner that they find it intolerable to live with them.
Similarly, under the Marriage (Same Sex Couples) Act 2013, same-sex spouses are not able to cite adultery as the reason for their divorce if their partner has a same-sex affair. The only situation in which a same-sex married couple could divorce on grounds of adultery is if one spouse has a heterosexual affair.
Spouses in this position will almost always obtain the same result by filing a petition on the basis of unreasonable behaviour as they would using adultery. The woman in the BBC’s report did so and therefore would have obtained her divorce and received the same financial settlement. However, this is not believed to be the crux of the issue; rather, the resistance is towards homosexual infidelity being effectively ignored due to the antiquated legal definition of adultery and not being given equal recognition to heterosexual infidelity, which some will say is a form of discrimination.
How Nelsons can help
If you need advice on divorce or separation, please contact our expert Family Law team on 0800 024 1976 or via our online form. The team will be happy to discuss your circumstances in more detail and give you information about the services that we can provide.