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Should the ground of adultery remain and is it relevant to gay marriage?

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The long debated Gay Marriage Bill has finally been voted on. It has attracted so much controversy from all walks of life and has almost become an election issue for the Tory party. The purpose of the bill is to allow same sex couples to marry in civil ceremonies and possibly in religious ceremonies if religious organisations are prepared to do so. Previously, same sex couples could enter into a civil partnership but not marry.

Whilst same sex couples gained legal rights under a Civil Partnership they did not have the commitment of marriage. It will also allow those who entered into Civil Partnership to convert it to marriage.

There has been much opposition to the bill from religious organisations. The view seems to be that marriage is only appropriate between a man and a woman but is this not a discriminatory approach? Gay couples live as families with children and does marriage not bind people together and provide much needed stability for children so why should we not have gay marriage?

Alongside the debate of gay marriage lies gay divorce and whether the current law relevant to marriage can be applied to marriage between same sex couples. Difficulties have arisen due to the legal definition of adultery and non-consummation. Both definitions are only relevant to sexual intercourse between a man and a woman. It was thought the fact of adultery for divorce may disappear. This would have been in keeping with the arguments of no fault divorce which have been running for some considerable time.

However, it appears that at this stage the government have decided not to change the legal definition of adultery or non-consummation so the likelihood is that these terms will not be relevant to gay divorce. Unreasonable behaviour is by far the most common fact cited in divorce and this would be relevant to heterosexual or gay marriage.

Some commentators have raised this issue of defining adultery and non-consummation as a major problem in the acceptance of gay marriage. As lawyers we avoid making moral or value judgements but focus on helping our clients and the courts to navigate a way through life’s complexities. The law is best when it reflects the social norms of the day and the vast majority of people now accept that the single ground for divorce namely that the marriage has irretrievably broken down, does not have to be proven by a fault based fact such as adultery. For most people these days when it’s over, it’s over.

This raises the question, does adultery or unreasonable behaviour, the most commonly cited fact in divorce petitions, have any relevance to marriage and divorce in the 21st Century?

By solicitor and mediator, Gillian Davies