Same-Sex Divorce & Dissolution

June was, internationally, Pride month and in Norwich, we celebrated Pride on 30 July. The movement has come a long way since the 1960s with gay marriage being legalised in the UK in 2013, but is marriage the same for all regardless of sexuality?

We are encouraged to believe that it is but there are differences when it comes to the legal role in which sex plays in same-sex and heterosexual marriage from consummation through to adultery.

Adultery in Same-Sex Marriages

Since 6 April 2022, we have the “No Fault” divorce but, before this, the party seeking a divorce would need to prove the irretrievable breakdown of the marriage which could only be done by establishing one of five facts:

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

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 Marriage (Same Sex Couples) Act 2013 confirmed that adultery can only be committed between people of the opposite sex.

This meant that, if your spouse has sex with someone of the same sex as them, that will not be treated as adultery and anyone who found themselves in this position was limited to petitioning for divorce on the basis of unreasonable behaviour which was rather outdated and, arguably, discriminative.

Consummation of Marriage

If a man and a woman do not consummate their marriage due to incapacity or wilful refusal then the marriage is voidable, without delay. The parties can treat the marriage as not having occurred and can apply for nullity without delay. They do not have to wait for the one-year requirement before divorce if consummation has not occurred.

This is not the case for same-sex marriage because of the difficulties defining sexual intercourse within same-sex marriages. Instead, if either party wishes to end their marriage due to non-consummation they would have to wait for a year and apply for a divorce based on the new no-fault divorce legislation. Some would argue that it is not fair and the law remains dated and prejudicial. It does not acknowledge the increasing recognition of asexuality and the fact that the relationship between marriage and sex is not what it once was.

Surely, 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 partner’s incapacity or wilful refusal to have sex with them. Same-sex spouses may feel disadvantaged as they would have to remain married for at least one year when divorce proceedings would be available. They may have wanted the marriage nullified due to a preference not to divorce for personal or religious reasons. There may also be negative financial consequences as the parties can make financial claims against each other in connection with divorce which they cannot where a marriage has been nullified.

Does it matter?

With the No-Fault Divorce coming into effect in April 2022 removing the five (or four in the case of same-sex couples) facts, it could be argued that it doesn’t matter anymore. But the fact that it took until 2022 to bring in identical grounds for divorce for same-sex couples may suggest that change is very slow.

With the option of nullity based on lack of consummation being available only to heterosexual spouses, for same-sex spouses, this could prove prejudicial, both financially and emotionally.

What to do if you are separating or divorcing?

Sarah Harris is a Legal Assistant in our Family Team based on Theatre Street in Norwich. If you would like advice in relation to divorce, nullity or any other family law matter then please telephone 01603 214 220.