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Should there be such a thing as ‘gay adultery’?

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On Saturday the iPM programme on BBC Radio 4 ran a story about a woman who was unable to divorce her husband on the grounds of adultery because he had affairs with men, rather than with women, and adultery can only be committed between a man and a woman. The woman considers that this is wrong and is calling for a change in the law. But is a change really required?

The woman in the programme said that she cared hugely about the betrayal by her husband, and wanted to know that “somebody somewhere has recognised that”. I’m not entirely clear what she has in mind about the fact of the betrayal being recognised, but one thing is certain: the courts are not interested in anything other than whether the marriage has irretrievably broken down, and they are definitely not in the business of ‘revenge’, even in its mildest sense of publicly attributing blame.

It may be that the woman, and others who share her views, would like to name the other person involved with their spouse, in the same way that a co-respondent can be named in an adultery divorce petition. I would normally strongly advise against this course of action, which really doesn’t do much to ‘exact revenge’ anyway – the court will not be interested in imposing any sanction against the co-respondent apart, possibly, from ordering them to contribute towards the costs of the divorce.

In any event, if the woman wants to name another party they can do so anyway even when there is no adultery, by alleging that their spouse has had an ‘improper association’ with a named person. The court may then direct that the named person is to be the co-respondent in the proceedings – see the Family Procedure Rules 2010, rule 7.10(4). As far as I can see, the term ‘improper association’ is not defined, but I assume that a homosexual association would be included, although whether the court would be prepared to go to the trouble and expense of directing that they be made a party is another matter.

The other reason given for a change in the law is that the present system is discriminatory – either adultery should be scrapped, or the law should work the same for everyone. Well, yes I suppose you could say that there is a technical discrimination, but the important thing, and (as I’ve said already) the only thing the court is really concerned about is whether the marriage has irretrievably broken down, and this can still be proved by way of unreasonable behaviour, even if adultery is not an option. In other words, the husband’s affairs with other men are most certainly unreasonable behaviour, even if they are not adultery. The woman therefore does not suffer as a result of the discrimination – she still has access to her legal remedy, i.e. divorce.

All of the above is, of course, yet another argument in favour of the introduction of full no-fault divorce, where the court does not have to investigate why the marriage broke down, or attribute blame for the breakdown. Under a no fault system there would be no more adultery (or unreasonable behaviour) and everyone would therefore be treated the same by the law, irrespective of what either spouse had done.

Certainly, the introduction of no-fault divorce would be infinitely preferable to some widening of the definition of adultery. In recent decades the courts have quite rightly become less and less concerned with matters of an intimate personal nature, and widening the definition of adultery would therefore be an unwelcome step backwards.

In short, to answer my question: yes, a change in the law is required, but the change should be to a no-fault divorce system, not the change that the woman in the story seeks.

You can listen to the iPM programme here. I don’t know how long it will be available for, but an article on the subject can be found here.

The blog team at Stowe is a group of writers based across our family law offices who share their advice on the wellbeing and emotional aspects of divorce or separation from personal experience. As well as pieces from our family law solicitors, guest contributors also regularly contribute to share their knowledge.

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