Coffee House

Adultery and the same-sex marriage bill

13 February 2013

10:26 AM

13 February 2013

10:26 AM

Nadine Dorries said during the debate on same sex marriage last week that ‘This bill in no way makes a requirement of faithfulness from same-sex couples. In fact, it does the opposite’. Her rather surprising claim stems from the government’s plans to maintain the current definition of adultery in the equal marriage bill.

Although not defined in statute, case law defines adultery as sexual intercourse between persons of the opposite sex. So while a heterosexual man can be divorced on the basis of unfaithfulness with another woman, a homosexual man could not on the basis of unfaithfulness with another man.

The definition of adultery has caused legislators a collective headache as they have tried to adapt current marriage legislation so that it is capable of extending to same sex couples. The gay rights group Stonewall has, quite correctly, pointed out that even if gay couples cannot rely on adultery, they can petition for divorce on the basis of their partner’s unreasonable behaviour, which could include having an ‘inappropriate relationship’ with another person. This does not quite address the issue, which is that marriage equality should mean equality in all respects.


Commentators have claimed over recent weeks that the legislation, if introduced as planned, could lead to challenges by heterosexual divorcees, frustrated at the fact that while their adultery might form the basis of divorce proceedings, the same might not be true for homosexuals.

Dorries suggests that the inability to divorce on the basis of adultery in a gay marriage means that gay couples will have no obligation to remain faithful. But for the reasons identified by Stonewall, this has no foundation. Adultery forms one of five facts which under current legislation may evidence the irretrievable breakdown of a marriage.

In addition, the fact that a gay couple may not divorce because of same sex adultery does not mean that they will not feel any obligation not to commit to one another.

It is also interesting that Tory MPs are attempting to justify their objections to gay marriage on the basis of a legal conundrum which is entirely of their own party’s making. The extension of the definition of adultery so that it may be relied upon in gay divorces is quite within the scope of legislators. Alternatively, the common law definition of adultery could be allowed to develop over time. Perhaps the most interesting aspect of the debate is the Government’s attempts to reconcile historical concepts of adultery with the issues that arise in modern relationships. A more revolutionary approach to this particular debate may do away with fault based divorce altogether, gay or straight.

But if having adultery as a ground for divorce is supposed to act as a deterrent, it doesn’t seem to have worked with heterosexual marriages.

Thomas Duggins is an associate at Charles Russell LLP.

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Show comments
  • Dogsnob

    I find it sad that gay people feel that they now need to ape the habits and rituals of the straight establishment. Gay people have lived together quite happily in the past with no compulsion to formalise their relationships – many still do. If it’s a legally driven thing, then that’s done in Civil Partnership, surely?

    • LaszloZapacik

      For most of history most straight people didn’t feel the need to formalise their relationships – until the 17th Century common law marriage was the norm.

      • Dogsnob

        Precisely. And in their pursuit of so many of the trappings of heterosexual formality, homosexuals are unwittingly conceding much of what makes up their identity.

  • Smithersjones2013

    As I wrote a long post and it has been eaten (again) by whatever under 2’s kindergarten spam filter Coffee House are using I will summarise.

    This article is disingenuous. It does not acknowledge the link between consummation and adultery. It does not even acknowledge the lack of a consummation at all in these proposals let alone exploring the likely implications for the gay marriage proposal of not having one..

    The consummation and adultery concepts are the only concepts which directly relate to the physical acts which are representative of the emotional ties in marriage. Omitting them is effectively gutting marriage of its soul and by omission does not recognise the physical acts and emotions involved in gay relationships.

    Unreasonable behaviour is not comparable to adultery. The former can be a simple lack of compatibility that has no stigma attached the latter is a complete betrayal of the core meaning of the institution.

    What is on offer is not equal, secures the unique nature of heterosexual marriage, and denies the nature of gay relationships by omission. Arguably the proposal offers nothing more than sham marriage. All gay people will be able to is use the word married (given legal equality is provided in civil partnerships) .

    Given all this is about is being able to use an empty label one has to wonder what all the kerfuffle is about. But hey if gay people want to get excited about a superficial label fine. I’d be holding out for something more if I was in their shoes……

    Lastly as a heterosexual, I want to know when we can have civil partnerships?

  • Carlotty1222

    It’s a ‘How many angels can you get on the end of a pin’ argument.
    Yep, pointless!
    There are those that are against gay marriage who just using this issue as yet another excuse to object to something they disapprove of in principle Although I am for gay marriage, I can see that there is a honourable argument against. Perhaps better for those against gay marriage to just be straightforward and object on principle rather than this tedious nit picking over points of law. Which I suspect will be ironed out in practice as time goes on.

    • Deputy Dawg again

      I object in principle to the impossibility of gay marriage. It is impossible since marriage is not in the gift of the state but is a natural and universal relation of a man and a woman.

      • John V. Hedtke

        Sounds like a load of cobblers to me, DD. Marriage is a relation between two people who love each other. If someone’s hetero marriage is weakened by the knowledge that there’s a gay couple down the street who are also married, then that wasn’t much of a hetero marriage to begin with.

    • Thomas Duggins

      I couldn’t agree more.

  • Tom Tom

    Surely Adultery is the Fast Divorce route and does not require 2 Years Separation. Thus we have “Adultery” and “Divorce” defined as between Man and Woman but not “Marriage” which is absurd. Once you go beyond “Civil Partnerships” you enter realms of absurdity. We may as well continue on this path and abolish Incest and Monogamy so each Cultural Identity can live in its own way without any central legal framework. “Community Standards” could reflect “Community Values” now that we are balkanised

    • Doppel1800

      And you can’t rely on any of the five grounds to divorce within the first year of marriage, though I am not sure if the marriage cannot be voided within the first year where one of the grounds for voiding it can be established (I don’t know what the new bill proposes with regard that aspect). Legislate in haste, repent at leisure.

      • Tom Tom

        There has been no Divorce Act since 1973 and the Courts are filling in the gaps

  • Andrew Paul Shakespeare

    “‘This bill in no way makes a requirement of faithfulness from same-sex couples. In fact, it does the opposite”

    Umm … it requires adultery?

  • Deputy Dawg again

    of divorces cite adultery as the reason. So our lawyer friend is not
    really correct on this easily obtained fact. And I would have thought
    that unreasonable behaviour which is sleeping with someone else must be
    defined as adultery otherwise it would not be unreasonable and offensive
    to a person.

    This will remain a matter of pro-homosexual bias since homosexuals
    will not be able to claim that having relations with someone else (in
    some undefined manner) is adultery and therefore unreasonable.

    What will be considered unreasonable in the uniquely homosexual case?
    It cannot be sexual relations in the same mode as those which
    constitute consummation since the government is refusing to describe
    what sexual behaviour would constitute consummation. Would it require
    the an&l penetration of both parties for instance? So if there is no
    consummation there can be no adultery and no unreasonable sexual

    Of course in the name of equality homosexuals get special treatment
    and their own definition of marriage. And we see that the legal
    community are quite happy to subvert marriage even more by creating a
    no-commitment marriage that can be ended with no reasons whatsoever.
    There is already a model of course, in the Islamic practice of simply
    repeating ‘I divorce you’ a few times.

    • Tom Tom


    • Thomas Duggins

      The parties do not have to rely upon adultery if it has been committed. They can rely on unreasonable behaviour and many of my clients do so. I do not think it is a matter of “special treatment” for homosexuals, but rather the government being uncomfortable with having to redefine adultery. As I explain in my piece, this could be construed as unfair on heterosexual couples, however, as some commentators have noted, it could also be unfair on homosexual couples who wish to cite their partner’s infidelity.
      I do not understand your reference to my not being correct on the percentage of divorces going through on the basis of adultery. I did not make any comment on this.

  • Jon Armstrong

    The solution is simple. Introduce no-fault divorce for all marriages, gay or straight. It’s hardly revolutionary; it was Conservative policy in the 1990’s and many many countries have it. Australia has had no-fault divorce since the 1970’s! Fault-based divorce simply adds unnecessarily to the hostility and distracts the parties’ attention away from agreeing sensible arrangements for their children and their finances. It makes not the slightest bit of difference to the financial outcome of a divorce and anyone who thinks that it will encourage more people to get divorced is out of touch with reality.

    • Doppel1800

      Whilst you are abolishing the conditions subsequent, would you also abolish various of conditions precedent, or even abolish the institution entirely.

    • Deputy Dawg again

      No commitment marriage, with fault free divorce is entirely and exactly what the Marxist/Communist pioneer thinkers described and wished to implement. Well done for identifying that the modern Conservative Party, as Michael Gove admits, looks to communism for its inspiration.

      As a conservative I think I’ll stick with our Judeo-Christian Western heritage while it can still be salvaged.

    • Tom Tom

      They have FAULT-FREE DIVORCE – it is simply that TWO YEARS SEPARATION is required and that leads to ADULTERY subsequent to Separation

      • Doppel1800

        It was/is possible to petition/claim on more than one ground.

    • Thomas Duggins

      I share your view entirely. My reference to “revolutionary” was in the context of a discussion about minor alterations to the current regime.

  • Colonel Mustard

    Oh, what a tangled web they weave . . .

    The more statutory equality pursued the more consequential inequality is created.

  • foxoles

    And that’s before we’ve even started on the definition of ‘consummation’ for these new marriages.

  • dalai guevara

    ‘Dorries suggests that the inability to divorce on the basis of adultery in a gay marriage means that gay couples will have no obligation to remain faithful’

    This straw man has jungle-type depth to it: almost all couples that are divorced today are divorced not on the grounds of *adultery*, but on the grounds of *irreconcilable differences*.

    Is that why you are now digging out Ms Dorries rather than your very own Charles Moore to make this point?

    • Doppel1800

      “Almost all” what like 99%; not sure about that. Last time I saw the figures I was quite surprised by the percentage of claimants holding out for adultery. And notwithstanding the difficulty of defending a claim that one has behaved unreasonably, given its de facto catch all nature, Ms Dorries is right to identify the inconsistency whether others like it or not.

      • Tom Tom…………..Adultery is one of five “facts” – the single ground is irretrievable
        breakdown – which a husband or wife must prove to secure a divorce. As
        one of only two facts which allow a quickie divorce, it is cited in more
        than one in four divorces.

        • Doppel1800

          My mistake. Some time since i studied family law.

    • Tom Tom

      Adultery is more common than you think and has a faster outcome. the problem with 2 Year Separation is that it often leads to Cohabitation with other relationships producing Children when the originbal Marriage is not ended

  • Petra Thompson

    I have gay friends who undertook civil partnerships, only to find out that when their partner has committed adultery, they have no legal basis on which to terminate the partnership. Given the possibility of acquiring AIDS from a lying, cheating partner, adultery in gay male relationships should be considered strong grounds for divorce.

    • Tom Tom

      They should form a legal Pre-Nup then

      • Smithersjones2013

        I didn’t think pre-nups were legal in this country?

  • Archimedes

    I think you’re missing the point. Their objections are to the logic that you employ throughout your piece, namely that all these legislative conundrums can be solved by more minor modifications. You then go on to suggest your “revolutionary” approach of doing away with fault-based divorce, which inherently means that marriage is no commitment at all, and so what is the point in having it at all? They objected to the fact that this bill would have unintended consequences, and I think you’ve illustrated that quite nicely.

    • Mark Bailey

      What would a lawyer know of consequences? And I speak as one, though, happily, not practicing. You are right: his argument is all about the wood, whilst failing to see that the tree is felled.

      • HooksLaw

        You are right about lawyers not knowing anything about consequence, but if people cared more about consequences then we would not need lawyers.

        • Tom Tom

          Lawyers are the new High Priests. They have built their Temple to Contradictions and Liturgies and donned costumes to complete the theatre. I find it hard not to see Courts as Theatres with actors reciting their lines

      • Austin Barry

        I think it was Matthew Parris who described divorce lawyers as being like soldiers who come down from the hills, bayonet the wounded and then loot their bodies.

    • HooksLaw

      Law changes make divorce a lot easier now and the whole point was not to overtly cast blame

    • Thomas Duggins

      Quite rightly, if someone is unhappy in a marriage, they are able to bring that marriage to an end. If they do not wish to rely on a period of separation (which can cause unneccessary complications as people will inevitably move on in their lives during the minimum two year period), forcing someone to accuse the other of adultery or cite unreasonable behaviour only increases animosity. No fault divorce does not undermine the value of marriage (ref ‘what is the point in having it at all?’) as marriage is a public commitment which brings with it great responsibility. The introduction of no fault divorce would not make it any easier or more difficult to obtain a divorce, but it would mean that one could be obtained without setting the parties up for a confrontation from the very beginning. I share the views of Jon Armstrong, below, on this subject.

      My preference is to have no fault divorce (and this would require substantial changes to legislation) for the reasons given above. However, if we are to continue with the current regime and adultery is to remain on the statute books, as I make clear in my piece, it would not take a great amount of legislative change to alter its definition.

      • Archimedes

        Do enlighten me as to what the great responsibility of marriage is, if one can just break it off if they are unhappy? What is the system of checks and balances that makes it a commitment at all? Of course, it would make it easier to obtain a divorce, not legally, I’ll grant you, but culturally, yes. If the grounds for divorce are “happiness” then I guarantee you people will not be willing to struggle through the difficult times that inevitably occur in any marriage – rather they will question whether their current “unhappiness” is symbolic of the unworkable nature of their marriage, and it will become self-fulfilling in the vast majority of cases. “Happiness” in marriage would become a momentary thing under your suggested change. People would not ask if they are, broadly speaking, happy in their marriage, but if they are happy right now.

        No, what you are talking about is something very different to marriage, and so the point stands: why demand that marriage be extended to same-sex couples, if what you want is not marriage? What you want is a legally recognised state of union between two individuals, that can broken off at any time. This is not about love or commitment to an individual or a commitment to society, it is about legislative advantage and a desire to have that union placed under an umbrella term. The latter is merely a selfish and intolerant desire.

        As for adultery, this is merely one of the oddities in the bill. As a lawyer, I’m sure you are aware that changing definitions has repercussions.

        In the future, marriage will be dismissed as insignificant, and if society finds a replacement that adheres to the old definition then people will soon be weeping about injustice and inequality yet again. I see no particular reason why it should be considered logical to run round in circles shouting “Progress! Progress!”. It’s not progress, it’s foolhardiness with no direction and a single-minded ambition to console a group of people with an irrational dispute.

  • The Red Bladder

    My word – now pick the bones out of that little lot. I should think the lawyers will have a field day in the coming months and years with the complexities this looks likely to throw up.

    • HooksLaw

      There are no bones – the ground for divorce is unreasonable behaviour – you may think its quite reasonable for your wife to have an affair, well done.

      The law has leant over backwards (pardon the analogy) to make hetrosexual divorce easy and we see numpties like Dorries complaining over an implausible theory that homosexual divorce may be more difficult.

      • The Red Bladder

        My heads spinning with this lot. Think I shall retire to the pavilion and take refreshment.

      • CharlietheChump

        Divorce is easy, abortion is even easier

        • HooksLaw

          Look, the bees nest has already been poked once don’t stir it again

      • Tom Tom

        Actually it is interesting to see whether Divorce is more widespread or simply more often repeated by the same Persons