The Marriage (Same Sex Couples) Act 2013 enabled same sex couples in England and Wales to legally marry for the first time in the same way as opposite sex couples. Previous to this, same sex couple could become civil partners but not marry under the laws of England and Wales. This Act also enables existing civil partners to convert their civil partnership to a marriage if they wish to.
The Act means that same sex couples have been legally able to marry in civil ceremonies across England and Wales since 29th March 2014. Religious organisations that wish to are now able to opt-in to marry same sex couples, but, at the present time, same sex marriage ceremonies cannot be carried out in the Church of England or Church of Wales.
In terms of if a same sex marriage unfortunately breaks down, the laws around divorce are also now very similar to those which relate to opposite sex divorces. This guide overviews the grounds and processes for same sex divorce. Please note that references below to divorce also includes dissolution of civil partnerships.
Are there differences between opposite and same sex marriage law?
In most regards, same sex marriage law in the UK is similar to the laws that surround opposite sex marriage. Scotland and Northern Ireland have their own unique legislations, but under law in England and Wales, the differences include:
- Religious marriages between same sex couples can only happen where the religious group has opted-in to this
- Consummation is not a requirement for a same sex marriage and therefore an annulment on this basis is not possible
- Adultery is not considered a basis for divorce in same sex marriage, unless the adultery was with someone of the opposite sex
Are there differences between opposite sex and same sex divorce laws?
Same sex divorces are dealt with in the same way as opposite sex divorces from a legal point of view. There is one ground on which a party can petition for divorce, and that is that the marriage has irretrievably broken down. Under current law a petitioner must prove the marriage has irretrievably broken down by satisfying the court that one (or more) of a list of five statutory facts has occurred.
The facts are:
- Behaviour (which may include behaviour such as being unfaithful with someone of the same sex)
- Adultery (and that the petitioner finds it intolerable to live with the respondent)
- Desertion (for over two years)
- Separation for at least two years (if both parties consent to the divorce)
- Separation for at least five years (consent of both parties is not necessary)
The above facts apply equally to same sex and opposite sex couple, although there is one inconsistency relating to adultery. Legislation and case law narrowly defines adultery as voluntary intercourse between two persons of the opposite sex where one, or both, are married, but not to each other. This means that extramarital intercourse with someone of the same sex does not fall within the definition of adultery. Instead, the petition can be drafted on the basis of behaviour, with the same-sex extramarital intercourse being used as an example of the respondent’s behaviour.
Same sex family law services
As with any marriage breakdown, there may be some complex issues to sort out with a same sex divorce, including the care and future arrangements for any children you have together, along with the division of finances and assets. Divorce can be an emotionally-charged process to go through, and it’s important that you have specialist legal support to help protect your interests and make sure you fully understand your rights at every stage.
If you’re considering divorce, please contact the experts at Moore Barlow for advice.