Does divorce legislation in relation to ‘adultery’ need modernising?

Under the Matrimonial Causes Act 1973, a husband or wife can seek a divorce from their spouse if they can show that there has been an “irretrievable breakdown” of their marriage. This “irretrievable breakdown” has to be proven on one of five facts, either:

1. Adultery;
2. Unreasonable behaviour;
3. Desertion;
4. Separation of two years with consent; or
5. Separation of five years without consent.

When “irretrievable breakdown” is proven on one of the above facts, the Court will pronounce Decree Nisi (the first stage of a divorce) and will order that the marriage should be dissolved thus allowing the husband or wife to apply for Decree Absolute (the final stage of a divorce) after the requisite time frame has elapsed.

If a husband or wife wishes to petition for divorce due to adultery, their spouse must have committed adultery with a member of the opposite sex. This is because under the current legislation, adultery cannot be claimed if the spouse in question has been unfaithful with a same sex partner as only heterosexual relations will constitute adultery.

Within the legal context in England and Wales, adultery is defined as “sexual intercourse between a consenting man and woman, one or both of whom are already married to other people.”

The law relating to civil partnership dissolutions is even more restrictive than that in relation to divorce, as a civil partner is not allowed to claim any form of adultery as a ground for dissolution, instead having to rely upon unreasonable behaviour, desertion or separation with or without consent.

Many believe that the definition of adultery is archaic as it fails to appreciate “sexual intimacy in the 21st century”, and the fact that married spouses sometimes conduct homosexual relationships within the confines of their marriage. This has been highlighted in a recent case where a spouse was prevented from petitioning for divorce against her husband based upon his adultery, as her husband had had a sexual relationship with a man as opposed to a woman.

Some equality campaigners are now calling for a change to this area of the law to enable the meaning of adultery to be extended to same sex relationships and for it to be used by civil partners going through dissolution proceedings. Surely, given the modern and diverse way in which people conduct relationships in today’s society….this seems like a sensible idea?

Please contact either Lorna Barry or Kirsty Bowers if you would like more information about any aspect of family law.