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Cutting Through Complexity

Same-sex marriages are not yet equal when they end

18th April 2016

Many celebrated implementation of the Marriage (Same Sex Couples) Act 2013 as the advent of true relationship equality. And yes, on the face of it we can all now get married if that is what we choose.

But a closer look at the legislation makes it abundantly clear that true equality has not been achieved.

For example, same-sex married couples do not have the same menu of factors from which to choose to demonstrate that the marriage has broken down. A same-sex couple cannot bring their marriage to an end relying on the fact that one of them has committed adultery. That is because adultery is defined as sexual intercourse between a man and a woman, one or both of whom are married to another person.

From a legal perspective, it makes little difference. If one party has had an extramarital relationship, then a divorce or dissolution can still be sought by citing the extramarital relationship as an example of "unreasonable behaviour", a factor on which both same-sex and heterosexual couples can rely.

However, it is not uncommon for those facing a breakdown in their relationship as a result of their other half having strayed to want to rely on that as the sole reason for the breakdown. While it is not important from a legal perspective, it can feel, to many, important from a personal and emotional perspective.

So it must be wrong that only those in a heterosexual relationship have the option to pursue that course.

For the same reasons, same-sex couples are not able to seek an annulment, owing to the reference to, and definition of, consummation.

It is plainly wrong to give all couples the same rights when they are uniting, only to discriminate between them when things go wrong and the decision is made to end a relationship. Equality must be more than skin deep and the legislation needs reform.

We have come a long way towards equality. There is some distance to go. Many same-sex couples still live in secrecy, they face persecution, exclusion from their families and colleagues and discrimination in their professional lives.

The government has taken great strides towards equality that assist in the campaign towards an open and accepting society. But progress must still be made. Equality is not a box-ticking exercise. The detail matters.

Rachel Lemon is a partner in the in the Family team, her article was published in The Brief on Monday 18th April 2016.

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