Same Sex Divorces: What Is the Process?

Year Published: 2020

The Office for National Statistics recently revealed that same sex female couples are more than twice as likely to divorce than same sex male couples. There is no clear explanation as to why this is the case but some commentators such as Natalie Drew, founder of Britain’s first fertility clinic, expressed her views to a national newspaper, cited as believing that many lesbian marriages fail due to pressure on lesbians to adopt traditional roles more typically associated with heterosexual couples that they may be unsuited to.

Couples in same sex marriages who are experiencing difficulties with their relationship and are seeking to divorce may wonder what differences there are in the divorce process.

The Process for Same Sex Divorces

A same sex divorce is dealt with the same way as it would be for a heterosexual couple with a divorce petition.

A divorce can only be granted in the UK if the court is satisfied that the marriage has irretrievably broken down and there is no chance of reconciliation. For same sex divorces, this can be proven by one of four facts:

  • Unreasonable behaviour
  • Desertion over two years
  • Two years separation and each party consents
  • Five years separation

The main difference for same sex divorces as opposed to heterosexual divorces, is that adultery cannot be used in a same sex divorce. This is due to the current law defining adultery as when ‘your husband or wife has had sexual intercourse with someone else of the opposite sex’.

Therefore, unless your partner has entered into a relationship with someone of the opposite sex, adultery cannot be cited as the reason for divorce. Until the law catches up, any form of infidelity would have to be cited as unreasonable behaviour.

Why Has the Law Not Caught Up?

The legislation that covers divorce is the Matrimonial Causes Act 1973. It is important to note that, when looking into the history of gay rights, sex between two men was only decriminalised in England in 1967. Only in 1980 did Scotland follow suit, with Northern Ireland in 1982 thereafter.

The Matrimonial Causes Act 1973 was therefore made prior to a change in legislation for Scotland and Northern Ireland. It is clear that there has been incredible progress made with same sex couples obtaining equal rights to adoption and gay marriage becoming legalised in 2014. Unfortunately, the law has not as yet updated to reflect societal changes, meaning that infidelity can only fall under unreasonable behaviour for the time being.

If you are experiencing a marriage breakdown and would like to speak to an expert about your options, please contact Zoe Worthington on 0161 475 1234 or email [email protected].

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