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.

Tags: Gay Marriage, Law, UK politics