Same Sex Adultery and The Forgotten Law

Same sex adultery is NOT adultery according to the law in England; we take a closer look at this seemingly forgotten portion of legislation. 

The Law in England currently states that if you have sex with another person outside of your marriage or civil partnership, and that other person is of the same sex as you, it’s not considered adultery – even if you’re in a same-sex marriage or civil partnership.

This causes both same-sex couples and heterosexual couples some difficulties when citing the reason for the breakdown of their marriage/civil partnership for the purpose of divorce or dissolution where one person has had an affair with someone of the same sex.

In order to divorce or dissolve your civil partnership, you have to support the ground for divorce/dissolution, which is the irretrievable breakdown of your marriage/civil partnership, with one of 5 facts:

1. Adultery;
2. Unreasonable Behaviour;
3. Desertion for a period of 2 years or more;
4. 2 years separation (with the consent of the other spouse); or
5. 5 years separation (where the consent of the other spouse is not required.

When identifying the relevant fact causing the breakdown of the relationship one would assume that if your spouse/partner had cheated on you with another person you were entitled to rely on their affair to obtain your divorce/dissolution. Well, not if that affair was with a person of the same sex as them.

Most people would think that this wouldn’t be of concern to a heterosexual married couple but it has proven to be problematic. For example, a married man would not be able to rely on his wife’s adultery to divorce her if she had been having an affair with another woman. And on the flip side, a woman would not be able to reply on her husband’s adultery if he had been having an affair with another man. There have been situations across the country whereby the spouse who has been cheated on and left feeling terrible cannot even rely on the relevant fact to initiate his/her divorce proceedings.

This is because the definition of adultery requires there to be voluntary sexual intercourse (not sexual acts) between persons of the opposite sex who are not married to each other but one or both of whom is or are married. The definition therefore clearly excludes sexual intercourse with someone of the same sex.

Clearly, this is more commonly a problem for those already in a same-sex marriage or civil partnership. The definition of adultery prohibits same-sex couples relying on their partner’s affair and thus the fact of adultery for divorce/dissolution purposes. That is unless of course, they have an affair with someone of the opposite sex! 

More information

For more information on divorce law and civil partnership dissolution please contact Catherine Polli, Head of Family at catherine.polli@pinneytalfourd.co.uk or call 01708 229444 for advice and comments.

The contents of this article are for the purposes of general awareness only. They do not purport to constitute legal or professional advice. Specific legal advice should be taken on each individual matter. The law may have changed since this article was published. This article is based on the law as of May 2017.