Policy Review: queer erasure in adultery law

Despite the introduction of same sex marriage in 2013, the close-minded definition of adultery remains. In law, it is only recognised between individuals of the opposite sex. Cheating on your partner with someone who is the same sex as you is not considered adultery.

This is telling of a system that routinely views straight relations as the ‘standard’, while leaving out anyone who does not conform to it. However, legislators should not extend the definition of adultery to same sex relations. Rather, they should revolutionise the current system by removing adultery from divorce law altogether, so as to avoid the simplifications inevitable in a fault-based system.

To be granted a divorce, a couple must prove that the marriage has irretrievably broken down, as per the Matrimonial Causes Act 1973. One of the five facts usually employed to prove this is the adultery ground. However, issue should be taken in how adultery is defined in law. Under paragraph 3(2) of Schedule 4 of the Marriage (Same Sex Couples) Act 2013, adultery is strictly between people of the opposite sex. Infidelity with someone of the same sex can be considered when arguing an ‘unreasonable behaviour’ fact for divorce. However, the exclusion still remains, and is symptomatic of legislative reluctance to engage with the private lives of those deemed outside of tradition.

The law should stop apportioning blame in divorce proceedings

The solution to this? While one could create more inclusive boundaries for adultery based on definitions in the Sexual Offences Act 2003, it is not worth the hassle. Rather, the law should simply stop attempting to place blame in divorce proceedings.

The notion that the person who cheats must necessarily be at fault is an outdated one. From psychological abuse to emotional neglect, a lot of factors can play into the decision to cheat. This does not automatically make adultery morally justifiable, but it does show that the reality is a lot more complex than how it is portrayed in the law.

Moreover, sex should not be the centre of how we define marriage. Adultery is not the only occasion in which the couple’s private life is so closely scrutinised: non-consummation even comes into play with annulment. A sex-based definition of marriage is problematic for two reasons. First, it excludes asexual individuals from the definition. Second, it fails to recognise that sex is a mutable aspect of private life no longer synonymous with long-term partnership.

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Last modified: 2nd July 2020