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When is adultery not adultery? 
Understanding same-sex infidelity and divorce

For most people, the concept of adultery may seem fairly straightforward. Ask the average person what it means and they will probably answer with some variation on ‘cheating on your husband or wife’.

Many of those people would likely be surprised to find that the actual definition of adultery, according to the UK government, is that it is where: “Your husband or wife had sexual intercourse with someone else of the opposite sex”.

This means that, as things stand, same-sex infidelity does not count as adultery for the purposes of divorce under English law.

What does this mean for same-sex divorce?

While the current definition of adultery does create a bizarre double standard (which could be taken as implying same-sex infidelity is not considered as serious as opposite-sex infidelity) it does not mean your spouse being unfaithful with someone of the same sex cannot be used as grounds for divorce.

Instead, same-sex infidelity can be used as a reason for divorce under the provision for ‘unreasonable behaviour’ i.e. where your spouse has behaved in such a way that you can no longer reasonably be expected to live with them.

When using unreasonable behaviour as the reason for the breakdown of your marriage, a judge is required to assess your petition and decide whether your spouse’s behaviour is really serious enough to merit divorce. In the case of same-sex infidelity, this is usually relatively clear cut, although it is worth bearing in mind that your spouse might dispute the accusation, in which case there is the possibility that they will choose to defend the divorce.

If your spouse does decide to defend the divorce, you may need to attend a court hearing in front of a judge to be able to carry on with your divorce.

Is divorce law for same-sex infidelity likely to change any time soon?

While the current rules around adultery are not ideal, it could be argued that in practice it makes little difference to the ability to get a divorce in the event of same-sex infidelity, other than slightly changing how you fill out the divorce petition.

However, there have recently been reports that the UK government is considering a review of English divorce law. It has been suggested that the Ministry of Justice may introduce ‘no fault’ divorces in England and Wales, meaning someone wanting a divorce will no longer need to give a reason.

While the government has not confirmed plans to look at changing the divorce laws, if no fault divorce were to be introduced, it would potentially make the whole issue redundant. However, for the time being, it seems we must simply accept that, in the eyes of the law, same-sex infidelity is not adultery, but rather just ‘unreasonable behaviour’.

Crisp & Co’s divorce lawyers have extensive experience with same-sex divorce and civil partnership dissolution. We can guide you through the entire process as simply and speedily as possible, helping to keep conflict to a minimum.

Our team can help you with everything from filling out and submitting your divorce petition to making a financial settlement and sorting out arrangements for children. We prefer to take a non-confrontational approach wherever possible, with strong skills in mediation and collaborative law.

To find out more, speak to one of our expert divorce lawyers now by calling 020 3797 4952 or use the enquiry form below to request a call back.

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