One small element of the government’s plans to introduce gay marriage has received minimal media attention. Government lawyers drafting the new laws are struggling to come up with a definition of how a gay marriage is consummated.
The lawyers are also struggling to define adultery for the purposes of gay divorce. This may surprise some people; surely, they will say, adultery is easy to define, but they are confusing infidelity with adultery. The trouble is that adultery is defined in law in a very precise way; it is vaginal sexual intercourse between a man and a woman, at least one of who is married to someone else. Therefore an awful lot of things that would be classed as being unfaithful do not amount to adultery.
When civil partnerships were introduced a few years, the whole issue was neatly sidestepped by those who drafted the new laws. Adultery is not grounds for dissolving a civil partnership, nor is non-consummation grounds for nullity. This is one of the very few legal differences between marriage and a civil partnership. But, if gay couples are now to be allowed to be married, the issue can be sidestepped no more.
Or can it? I would suggest that there is an easy and sensible way to avoid this conundrum. It’s time to reform the divorce laws so that it is no longer necessary to blames someone if you want to get divorced (whether that be gay or straight) or if you want to dissolve a civil partnership. It’s time for no-fault divorce laws.
Divorce law in England and Wales is cutting edge in many respects. The law deals sensibly for the most part with disputes about finances or children. However, it is painfully old fashioned when it comes to the central aspect of the divorce; the divorce itself.
Divorcees have to use antiquated divorce laws introduced in the early 1970’s. A generation has passed since the passage of the Matrimonial Causes Act 1973, and yet, apart from a few minor changes, the way that couples bring their marriages to an end has remained unchanged. If you don’t want to wait at least two years for a divorce, you have to divorce on the basis of adultery or unreasonable behaviour.
Some people think that this is the right approach. They feel that those who commit adultery or behave unreasonably should be held to account. I argue that it is utterly pointless. It makes not the slightest difference to how assets are divided or how maintenance is calculated or where the children live. The court knows that the reason that is set out in the divorce petition may not be the real reason why the marriage broke down. The adultery may have begun post-separation or the unreasonable behaviour may be being alleged as the Respondent won’t admit committing adultery.
The sad reality is that is all a huge distraction from the really important work needed to reach an agreement about finances and the children. It increases the hostility between a divorcing couple at a time when they need to work together to reach an agreement. It unnecessarily increases their legal bills, aggravating their already acute financial difficulty. It damages their ability to maintain a working relationship in relation to their children. It simply doesn’t help.
Some will argue that no fault divorce makes divorce more likely. Poppycock. Divorce is already not difficult. I could draft an unreasonable behaviour divorce petition on behalf of either party n any marriage, gay or straight, regardless of the actual state of their relationship; there’s always something. Divorce is a paper exercise; it may not be quite as easy as getting a driving licence as Sir Paul Coleridge suggests, but it is not legally difficult. There is no reason to believe that the divorce rate will increase. Those on the Tory right who splutter at the thought of no-fault divorce may wish to remember that it was Conservative policy in the 1990’s, but the (very flawed) no-fault divorce laws set out in the Family Law Act 1996 was quietly killed by Labour.
Others will argue that a solicitor arguing for no-fault divorce is just interested in generating more fees for himself. The reality is that no-fault divorce will reduce conflict, which will promote the chances of agreeing financial or children issues. That means people’s legal bills will be less.
It’s time to stop playing the blame game and to persuade the government to reform the divorce laws. Therefore I have started an e-petition on the Downing Street website calling on the government to abolish fault-based divorce and to introduce no-fault divorce laws. Please sign it by clicking here and follow the instructions on the website.
Read my other blogs on this subject:
Don’t let your emotions cloud your judgement
Don’t let your emotions cloud your judgement Part 2
12 December 2012