Whilst the same basic rules of divorce apply to the dissolution of a civil partnership, or divorce of a same sex married couple, citing adultery as a reason to end the marriage is not an option.

Adultery not a reason for same sex divorce

In the UK, you can apply for a divorce on the basis of ‘adultery’ providing ‘your husband or wife had sexual intercourse with someone else of the opposite sex and you can no longer bear to live with them’.

Adultery simply doesn’t apply if your husband or wife has had sexual intercourse with someone of the same sex.

Family law solicitor, Nicola Cancellara, says:

 “In my experience, where adultery has been committed, the aggrieved party generally wants that to be the reason cited for a divorce – irrespective of whether the adultery is with a person of the opposite or same sex.  Imagine the distress it causes when they find out they are unable to end their marriage on that basis and have to proceed on the basis of behaviour.”

Is it time the law relating to adultery was updated?

The question relating to adultery with a person of the same sex is most commonly raised in civil partnerships, but same sex marriage has been legal in England since 2014,  so isn’t it time that the law was updated?

Nicola Cancellara

Nicola says:

“Case law has defined adultery as ‘voluntary sexual intercourse between a man and woman who are not married to each other, but one or both of whom is or are married”.  In civil partnerships there is no ground for adultery whatsoever, whilst adultery can be a ground for divorce in a same sex marriage, but the infidelity must involve a member of the opposite sex. So opposite sex couples can commit adultery but same sex couples can’t and many say that this is a discriminatory system.”

This is undoubtedly a debate that will continue to simmer and until such time that a test case is brought.  Until then, the current law means that if you want to divorce or end a civil partnership because your partner has had sexual relations with someone of the same sex, you will have to cite one of the 4 other reasons to prove irretrievable breakdown of your relationship, which are unreasonable behaviour, 2 year separation, 5 year separation or desertion.

You can find out more about the grounds for divorce or dissolution of civil partnership on our web pages.