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Homophobic British Law Says Gay Couples Can’t Divorce Over Same-Sex Cheating

In England and Wales, divorce law states that it doesn't legally count as adultery if it involves a member of the same gender. A new online petition calling for change has attracted over 4,000 signatures.
Photo by VegterFoto via Stocksy

Since same-sex marriage was legalized in England and Wales in 2013, over 15,000 gay couples have walked down the aisle. While most of us would rather think of the happy consummation of marital love and not its unhappy dissolution, statistically speaking, almost ten in 1,000 marriages end in divorce—and LGBTQ people aren't any more immune to acrimonious breakups than their straight counterparts.

But any gay couples who wish to divorce on the grounds of adultery may be in for a nasty shock. According to the law, you can't. According to the divorce guidelines on GOV.UK, the official government information resource for the public, "It doesn't count as adultery if [your partner] had sex with someone of the same sex. This includes if you're in a same-sex marriage."


That's right: in the eyes of the law, it's only adultery if it involves sexual intercourse between a man and a woman. So, for instance, if you're a woman in a same-sex marriage, it doesn't count as adultery if your wife has sex with another girl—but it does if she has sex with a man.

India Latham, a queer 25-year-old production coordinator from London, first discovered this legal anomaly when a friend posted about the rule on Facebook. "Initially I thought it must have been fake news or some kind of joke," she told Broadly. "It angered, confused and worried me. Whilst I'm more than aware that there are many antiquated laws still in existence, this one represents a blatant discrimination in the law."

She set up a petition to challenge what she describes as a "homophobic" and "blatant inequality in the law." Defining adultery along these strictly gendered lines, she says, also ignores those who are genderqueer or non-binary.

More than 4,650 people have signed the petition since. "People seem to be as outraged by the legal definition of adultery as I was," she says of the reaction from the public. "The word 'ridiculous' seems to come up a lot in the responses."

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"It's 2017 and this law is embarrassing," one supporter commented on the petition website. Another wrote, "Gay sex is still sex. My same sex wife would probably agree."

If you're queer, getting a divorce isn't as straightforward as it seems. Under English and Welsh law (it differs in Scotland and Northern Ireland), there are five grounds for divorce: adultery, unreasonable behavior, desertion, if both partners have lived apart for more than two years (in the case of a mutually agreed divorce), and if both have lived apart for more than five years (if the divorce is contested).


Photo by Nasos Zovoilis via Stocksy

You must supply one out of the five as proof that the marriage has irretrievably broken down in order for the courts to grant a divorce. If your partner cheats on you with someone of the same gender, that doesn't mean you're not allowed to separate—you can still get a divorce on the grounds of unreasonable behavior.

A government spokesperson told Broadly: "It is right that both opposite sex and same-sex couples have access to divorce proceedings if their partner is unfaithful.

"UK law currently defines adultery as consensual sexual activity between members of the opposite sex who are not married to each other. However, if someone in a same sex marriage or civil partnership wanted a divorce or dissolution following infidelity, they could apply on the grounds of unreasonable behaviour."

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So, if getting a divorce isn't the problem, why does this matter? According to one woman whose husband cheated on her with men, it hurts deeply to know that your partner's infidelity doesn't legally count as adultery. "[I] care hugely about the betrayal and want to know that somebody somewhere has recognized that," she told the BBC.

Besides, Latham points out, the GOV.UK site is the first Google result if you search for "how to get a divorce" in the UK. "The reader could be in quite a sensitive place when they read this and it is confusing and upsetting advice," she says. "Sure, clarification may then be given by a divorce lawyer that you can proceed under the grounds of unreasonable behavior. However, the fundamental issue I am petitioning against is the fact this law and advice exists in the first place when it is so obviously discriminatory."


Jonathan West, the head of family and marriage law at Prolegal, has handled several cases of divorces involving gay couples. "If people want to divorce, then they will use a different ground, because ultimately they want to be divorced," he says. "But it's certainly something that people don't really understand… People aren't happy, and I certainly have had it said to me before that they feel that it's discrimination.

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He adds: "I think it is upsetting to people, absolutely. It almost de-legitimizes the [adulterous] relationship that they've found out about."

The petition asks the government to scrap adultery as a cause for divorce completely, and to change the legislation to make it "inclusive and fair to all members of society."

Latham says that the issue at heart is one of equality—if couples in heterosexual marriages can divorce on the grounds of adultery, it makes no sense that homosexual ones can't. "The government legalized same-sex marriage, and I think most people would presume that the grounds for divorce would then have been addressed and made equal too," she explains.

"Just because same-sex marriage was legalized," she adds, "doesn't mean we don't have a long way to go for equal rights."