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Adultery and same-sex relationships

View profile for Rebecca Gladwin
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Same-sex couples can now either marry under the Marriage (Same Sex Couples) Act 2013 or form a Civil Partnership. The rights enjoyed by same-sex couples who have either married or formed a Civil Partnership reflect those of heterosexual couples, all bar the ability to divorce based on adultery.

For heterosexual couples there are five facts which can be relied upon to prove that the marriage has broken down irretrievably. They are:-

  1. The adultery of the respondent party
  2. The unreasonable behaviour of the respondent party
  3. Desertion for two years
  4. Separation for two years combined with the consent of the Respondent to the divorce proceeding
  5. Separation of five years.

For a same-sex couple who have entered into a Civil Partnership there is simply no ground for dissolution of the relationship based on adultery. For those in a same-sex marriage, whilst there is a ground for adultery, the infidelity must involve members of the opposite sex. It could be questioned whether this accurately reflects the sexual intimacy in the 21st century and whether a further change in the law is needed.

Whilst the law remains as it is currently, the applicant can still rely on their partner’s adultery as a reason for the divorce (same-sex marriage) or dissolution (civil partnership) by incorporating the adultery into their petition on the fact of unreasonable behavior.  This would enable the applicant to cite the infidelity as a reason the relationship has broken down. For many, recognition that the infidelity caused the breakdown of the marriage is enough and the fact relied upon when issuing the divorce petition is of little importance. Petitioning on the fact of unreasonable behavior would enable this.

The reasons stated within the divorce petition and the fact which has been relied upon has no bearing on any decision about financial matters and it is not necessary to name the third party. If you find yourself in a similar situation and require further advice on the law surrounding same-sex marriages and Civil Partnerships please contact the Neves Family Team on or  01908 304560 and we will be happy to advise you further.