There was a fascinating item on BBC Radio 4’s iPM programme last Saturday. In it, a woman explained how after finding out that her husband had been unfaithful , she could not divorce him on the grounds of adultery. Why not? Because he cheated on her with another man. Listen to it here.
Adultery is very much a heterosexual concept as far as English law is concerned. The definition is very tight; it is defined as being between a man and woman, one of whom is married to someone else. It has to be involve vaginal intercourse. Lots of things that would be considered as being unfaithful do not amount to adultery, including gay sex (or for that matter straight sex that does not involve vaginal intercourse).
That’s not to say that infidelity is not grounds for divorce; it would be regarded as unreasonable behaviour which is most definitely grounds.
However, the wife in this case felt it was unfair that she could not divorce her husband for adultery. She speaks about wanting an acknowledgement of what he had done.
I can see how that might help someone achieve closure or to feel that justice has been done. However, while I am sympathetic to the point she makes, I would suggest that the issue of whether adultery should include gay sex is something of a red herring.
The real issue is why do we have to prove fault at all in order to get a divorce. If you fast forward to 21 minutes and 13 seconds, you’ll hear the iPM host, the great Eddie Mair, reading an email from an unnamed solicitor explaining that the divorce laws are antiquated and in need of reform. I was the author of that email, which I reproduce in full here as follows:
Dear iPM,
As a solicitor, I can tell you that our divorce laws are antiquated. The law is up to date when it comes to dealing with financial issues or arrangements for children, but the law that we have to use for bringing the marriage to an end is over 40 years old and in desperate need of reform.
At the moment, anyone who wants to divorce without waiting until they have been separated for at least 2 years has to point a finger at their ex and say “You’ve done something wrong, I want a divorce”. The requirement for there to be an allegation of adultery or unreasonable behaviour does nothing but complicate the divorce unnecessarily. It encourages people to waste time and money arguing about whose fault it all is, rather than concentrating on resolving what is to happen about their finances or children.
No-fault divorce is sorely needed. It would not weaken marriage, as it is already easy to divorce, you just have to be unpleasant about it. The government needs to reform the law to introduce no-fault divorce so that couples can divorce with dignity, and can avoid pointless arguments about who is to blame which does nothing but add extra hostility to an already bitter dispute.
Yours faithfully
Jon Armstrong
Solicitor, Collaborative Lawyer & Family Mediator
2nd August 2015