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.”