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Family Law Blog

Comment on divorce & family law 

The unintentional consequences of equal marriage

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Earlier this month peers in the House of Lords backed government plans for same-sex marriages in England and Wales. In the end, the support from the upper house was by more than two votes to one but this political hot potato has not had an easy ride so far on the road to legislation. It has split the parties, brought opposing views from within the church and allowed activists of all shapes and sizes to get on their soapboxes to have their say.

As we have discussed before in these blogs, to a large extent the Marriage (Same Sex Couples) Bill for England and Wales, changes very little. The bulk of the legislation is the same as for civil partnerships. The pro-lobby who have been pushing for this want the principle amended so they can be “married” in the true legal sense of the word. Getting married in church is a whole separate issue as churches have the choice on whether to marry same sex couples when this all finally comes into law. They will certainly not have to perform the ceremonies.

It is interesting that similar debates have been going on in other countries around the world at the same time with France among the first to hold a same sex wedding.

However, as people have come to terms with the change, some of the nuances of the new rules have been interesting to look at. Because, you see, there are potentially a whole raft of unintended consequences to equal marriage that may yet take some time to overcome.

For example, what will happen to adultery? Currently in the UK, you have to use one of five facts to support the grounds of your divorce. Adultery is one of them but adultery (in current law) can only happen when there is a husband and a wife and one has had sex outside of the marriage with someone of the opposite sex. Adultery is not currently available to civil partners who are seeking to dissolve their partnership and presumably would not be available to a same sex couple ending a same sex marriage. So does that mean same-sex couples have only four grounds for divorce, which would make them different from heterosexual couples? Or do we need to rethink the definition of adultery?

There is also the issue of consummation. Non consummation of a marriage can be grounds for an annulment, legally different from a divorce. Again, consummation is sex between a man and woman and we have no definition for consummation for a same-sex couple. Will this need a rewrite also?

And so to the crux of my point: with these and many other points relating to current marriage and divorce law procedure still to be pinned down when related to equal marriage, would it not be the perfect time to really consider introducing a no blame or no fault divorce? Neither party would have to point a finger of blame or alternatively wait for a period of time. It is just an acceptance that the marriage has not worked and both parties are best splitting in the eyes of the law and moving on with their lives.

Couples in crisis are increasingly being funnelled towards more conciliatory approaches to their split, like mediation, and as a firm we support the principles and practice of the collaborative divorce approach. Yet under current law, one party is encouraged or even required to blame the other, which often causes acrimony. Now is the perfect time for this to change.

Kate Brooks
Family solicitor, Market Harborough

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