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Same Sex Couples and the dangers of Divorce

The Law has come a long way in realising and acknowledging the rights of same sex couples. Specifically, in 2013, UK law was updated and changed to recognise same sex marriage with same sex couples. However, the stigma still lies deep within the UK belief system and this can be seen through the exceptions directly associated with same sex couples in UK law.

What’s the law on same sex marriage?

The Marriage (Same-Sex Couples) Act 2013 has removed the provision that used to prevent same-sex couples from marrying. The Matrimonial Causes Act 1973 used to have this clause in there however, since the above act came into force, it is now legal for same sex couples to marry.

Before this act came into force, the Civil Partnership Act 2004 was created to recognise civil partnerships a legal commitment for same sex couples. Following a ruling in R (Steinfield) v Secretary of State for International Development (2018) the Civil Partnership (Opposite Sex Couples) Regulations in 2019 allowed for members of opposite sex couples to now be able to enter civil partnerships instead of a marriage.

The thought was that if same sex couples could enter into a marriage under UK law, surely it should be equal for opposite sex couples to be able to enter into a civil partnership.

I’m in a same sex marriage, how do I divorce?

How do I divorce in a same sex marriage?

Under UK law there are 5 grounds to divorce. These are:

1. Unreasonable Behaviour

2. Adultery

3. Abandonment

4. Separation for two years

5. Separation for 5 years

Interestingly enough, adultery cannot be used as a reason for same sex couples.

My partner has cheated, why can I not cite adultery as a reason for my divorce?

Harrowingly enough, UK law only recognises adultery as sexual conduct between members of the opposite sex. Therefore, using this definition members of the same sex cannot commit adultery.

So, if a gay man and his gay husband were in a marriage. One gay husband went and had sexual relations with another man, this would not count as adultery in the eyes of UK law. Similarly, if a gay woman and her gay wife were married and one gay woman had a sexual affair with another woman, her gay wife could not legally say that she had committed adultery.

However, if two gay wives were in a marriage, and one gay wife had sexual relations with a man, as he is a member of the opposite sex, her wife could cite adultery as a reason for divorce.

This unequal paradox is the result of the issue of what constitutes as consummation in a marriage. Consummation is currently thought and can be defined quite clearly with members of the opposite sex, however, the law finds it quite difficult to define this with same sex couples. This is why, when a same sex partner in a same sex couple cheats, the law cannot recognise it as they cannot recognise the consummation of the initial marriage.

What is void or voidable in a same sex marriage?

I’m in a same-sex marriage, what is void and voidable?

For a marriage to be void, it means:

1. There is no need to obtain a court order to say that the marriage is void

2. Any person can apply to have a marriage void

3. A child born into a couple with a void marriage is known as illegitimate

For a marriage to be voidable, it means:

1. The marriage can only be set aside if there is a court order

2. Only the parties to the marriage can apply to have a voidable marriage

3. A child born into a voidable marriage is not illegitimate

The reason why this is important is because a same sex couple cannot cite lack of consummation for a marriage to be voidable, whereas an opposite sex couple can. Again, the whole legal definition of what constitutes as consummation is the reasoning behind this trap door in UK law.

What is the difference between marriage, civil partnership and cohabiting for same sex couples?

Marriage and civil partnership in terms of legality are near enough the same when compared to cohabiting. For example, you can start and stop cohabiting whenever you like whereas with a marriage or civil partnership, there would be a court mandated start and end date. This is true for both same sex couples and couples of the opposite sex.

Similarly, cohabiting does not give the other rights of financial support if you were to separate, nor redistribution of property whereas if you were in a marriage or civil partnership these protections would be extended to you regardless of whether you were in a same sex relationship or opposite sex relationship.

Due to the key changes introduced by law in 2013 and then again in 2019 has led to more of an equal footing with regards to both same sex and opposite sex couples marriages and partnerships.

Is same sex marriage equal to opposite sex marriage?

So, is same sex marriage equal to opposite sex marriage?

Relatively, speaking yes.

Under section 11 of the Matrimonial Causes Act 1973, marriages are void if

1. Where the parties have knowingly and wilfully married in breach of the formality requirements

2. Where the parties have married in the prohibited degrees of a relationship for example a brother or sister

3. If either of the parties are under 16 years of age

4. If either of the parties are currently married to someone else

Same sex marriage used to be a part of this list however, due to the introduction of the Marriage (Same Sex Couples) Act 2013, this is no longer the case. Therefore, same sex couples are free to marry under UK law. The only real difference between same-sex marriage and the opposite sex marriage is that there are 5 grounds of divorce for opposite sex couples but only really 4 grounds of divorce for same sex couples.

However, the introduction of the ‘no fault divorce’ legislation should actually put both same sex couples and opposite sex couples on complete equal grounds. This is because this new legislation will stop the permitting of couples needing to give a reason for divorce. Therefore, it might have taken a while for the law to catch up, however, it is getting there slowly but surely.

Please do note that this Article is NOT Legal advice and should not be treated as legal advice.


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