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Do divorce laws give same sex couples a cheater’s charter?

It is generally well known that adultery is a reason permitting the court to grant a divorce in England and Wales.

What many find surprising however is that adultery can only be committed with a person of the opposite sex which means that if the act takes place between members of the same sex, which is more likely in same sex couples than opposite sex couples, the aggrieved party cannot divorce them based on their adultery. Furthermore, it is not possible to cite adultery to dissolve a civil partnership regardless of the sex of the parties involved.

Does this mean that same sex couples can have affairs with impunity?

Well, no not really. Adultery is only one of the five ways a divorce petition can be presented. The aggrieved party (whether in a marriage or a civil partnership) can instead present a petition based on their spouse/civil partner’s unreasonable behaviour, indicating that they find it unreasonable to remain living with a person who has formed an inappropriate relationship with somebody else. Indeed, on occasion opposite sex couples may opt to use unreasonable behaviour instead of adultery as a reason for seeking a divorce when their spouse has formed an inappropriate sexual relationship with another person, but they have not performed the specific act required to fall under the definition of adultery.

Should the law be changed to provide equality for all?

Wholescale changes to divorce and dissolution law have already been passed by Parliament and are due to be implemented in April 2022. This introduces a new system of “no fault” divorce/dissolution meaning that it will no longer be necessary (nor indeed possible) to give a reason for seeking the divorce/dissolution.  All one has to say is that the relationship has irretrievably broken down.

Whilst the change in law is primarily to avoid the parties having to blame one another for the breakdown of their relationship, it will address this lacuna in the law making it the same regardless of the sexes involved or whether the parties are in a civil partnership or a marriage.

For further information, please contact one of our specialist divorce solicitors.

Please note that this briefing is designed to be informative, not advisory and represents our understanding of English law and practice as at the date indicated. We would always recommend that you should seek specific guidance on any particular legal issue.

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