The government does not plan to change the legal definition of adultery when gay marriage is legalised, according to an official government paper.
Adultery is currently defined legally as taking place between a man and a woman. Consequently partners in same sex marriages will be unable to use adultery as a grounds for divorce. And according to the official document setting out the government’s plans, the government is “proposing to maintain the current position with regards to adultery in marriage”.
Partners in same sex unions will instead have to divorce unfaithful partners on the grounds of “unreasonable behaviour”, as is currently the case with civil partnerships.
In addition, same sex couples will also be unable to divorce on the grounds of non-consummation of the marriage. The document states:
“Same-sex couples cannot currently annul their civil partnership on the basis of non-consummation. Opposite sex couples will continue to be able to annul their marriage on the grounds of non-consummation. By maintaining this position, we are not altering the legal position unnecessarily.”
The paper states that adultery and consummation are both currently defined by a body of case law which refers only to heterosexual marriage. The government had proposed to let a new body of case law develop around same sex marriage but commentators, including the Family Law Bar Association insisted, according to the paper, “that it would not be acceptable to leave such uncertainty in the law.”
I think that this is correct.
As the piece says, the current position RE: adultery and consummation comes from case law. This has evolved over time. It’s not like you could ‘lend’ this case law to gay marriage because physically, you’re not comparing like with like. What’s more, the unreasonable behaviour Fact will do the same job.
I think there’s another point to make here – and that’s the older people who entered into a civil partnership back in 2005 (and since). Some of those people will have done so to protect assets and preserve financial security. For some of these people, consummation and sex in general maybe the last thing on their minds; (however, I suppose you could say that for anybody, regardless of their age or sexuality!)
I think the phrase “that it would not be acceptable to leave such uncertainty in the law” is correct, however, I couldn’t help smiling at the diplomacy! There’s still appears to be so much mystery and uncertainty around the bedroom activities of gay people, and on some levels, I suppose that I can appreciate why this is so.
Leave it as it is I say.
DT