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Same-sex marriage – grounds for divorce?

Over recent weeks there has been much debate over the Government’s plans to legalise same-sex marriage. If successful, the changes will mean that gay couples within England and Wales have the right to marry, rather than to enter into a civil partnership.

If the changes are brought in, this will bring about an interesting anomaly in the law governing same-sex divorces due to the legal definition of adultery. Adultery, one of the grounds for divorce, is presently defined as sexual intercourse between a man and a woman. As such, it is not available to gay couples on the dissolution of a civil partnership.

If however same-sex marriage is legalised on the basis of equality, is it right that different grounds for divorce are available to heterosexual and gay couples? This could give rise to anti-discrimination actions in future. A gay couple would be denied ground for divorce specifically based upon one partner’s infidelity. Equally, a heterosexual partner could still be divorced in circumstances where a gay person could not.

Could this lead to a re-definition of adultery or even abandoning the term in favour of an alternative, to be applied equally to heterosexual or same-sex relationships? It remains to be seen whether the Government will recognise and seek to address this anomaly and if not there may be some interesting challenges through the courts.