Equality and Dignity in Divorce?
As priests and politicians fall out over same sex marriage, lawyers are questioning why gay couples should be exempt from our antiquated and sexually intrusive divorce laws.
Many heterosexuals already look with envy at the civilised form of civil partnership which gay couples enjoy and which is denied to heterosexuals. It is arguable that same sex couples are treated more, not less, favourably under our current law.
Heterosexual cohabitants are forced into marriage if they wish to give their partners legal kinship status, property, pension, tax and inheritance rights. Gay couples acquire those same rights through a civil partnership.
Unlike heterosexual marriage, there is no requirement that a same sex couple has, or even intends to have, a sexual relationship. The only reference to gender in the Civil Partnership Act 2004 is that the couple cannot be of different sexes, thus deliberately excluding heterosexual couples from entering a civil partnership.
Perhaps the real difference is best illustrated by examining what happens when the relationship breaks down, which in 34% of cases it will, so this is no idle exercise.
In both cases, the only ground for dissolution is that the relationship has broken down ‘irretrievably’. Sensible people might assume that this is enough information. Not so. The unhappy Petitioner has to file a document telling a District Judge why it has broken down and upon which fact or facts he or she intends to rely. This could be behaviour, separation for two or five years or desertion.
A fifth fact, adultery, only applies to heterosexual divorce. A civil partnership or same sex marriage cannot be dissolved for adultery nor can it be annulled for non-consummation. It seems that what goes on, or does not go on, between consenting gay adults is no business of the state.
Heterosexual couples are afforded no such privacy or dignity. A spouse accused of adultery has to personally sign an acknowledgement form confessing the adultery (shades of the Inquisition). The third party can be named as a party in the divorce proceedings and could even be ordered to pay the Petitioner’s legal costs.
Clearly, the sexual act itself is of enormous legal importance in marriage, divorce and annulment for heterosexual couples. It features not at all for same sex couples.
Maybe civil servants drafting the Civil Partnership Act baulked at the prospect of defining sexual activity for same sex couples. Maybe politicians were intimidated by the church or family lobby from even going there. Maybe, by 2004, people understood that same sex couples just wanted the dignity of recognition and the security of a legal framework for their family and property.
Whatever the reason, if all of us are to be equal under the law, this blatant discrimination against heterosexuals needs to be addressed. There are mutterings about bringing a test case under the Human Rights Act. Has David Cameron really thought this thing through?
If the government has any sense, it will not introduce marriage for same sex couples without simultaneously reforming and simplifying our adversarial, intrusive, costly and procedurally archaic divorce law.
A highly paid District Judge with a team of overworked court staff should not have to waste time on the whys and wherefores of the relationship breakdown itself. A simple procedure to register that it has indeed broken down, is surely sufficient. The courts should be a last resort only when couples have serious disagreements over the children, or division of their assets. Human nature being what it is, lawyers will continue to have plenty of work.
Religious groups have nothing to fear in the simplification of civil divorce. They can adhere to their own canon law, just as they do and will continue to do with marriage. Their views should not determine what constitutes the breakdown of lay civil relationships, be those heterosexual, same sex or anything gloriously in between.
Sonia Behr is a solicitor at Behr & Co., Brynmawr, and a Trustee of the Bevan Foundation
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