Same-Sex Divorce

The law and procedure for same-sex divorces is broadly the same as that for divorces between spouses of the opposite sex. The primary difference is that a same-sex marriage cannot ordinarily be ended on the grounds of adultery.

In order to initiate the divorce proceedings, the Petitioner needs to complete and file at Court exactly the same standardised form (a Divorce Petition) as they would if they were married to a member of the opposite sex. The following two stages of the process are also the same. Upon the Respondent completing and returning their Acknowledgement of Service, the Petitioner will be able to apply for the Decree Nisi. This is the first decree in the divorce process. Six weeks and one day thereafter the Petitioner will be able to apply for the Decree Absolute which is what will conclude the divorce and bring the marriage to an end.

A same-sex marriage cannot ordinarily be ended on the grounds of adultery as Parliament (confirming earlier case law) has imposed a narrow definition of what constitutes adultery. This is limited to voluntary sexual intercourse between a man and a woman of the opposite sex. Having sexual intercourse with someone of the same sex therefore does not technically amount to adultery.

With the above in mind, the grounds upon which a same-sex couple can divorce are effectively limited to the following:-

• Unreasonable behaviour
• Desertion
• Two years’ separation with consent
• Five years’ separation (no consent required)

A same-sex couple will only be able to divorce on the grounds of adultery if one of them has engaged in voluntary sexual intercourse with a member of the opposite sex. Plainly, however, a same-sex spouse could rely upon the other’s sexual relationship with a member of the same-sex when applying for a divorce on the basis of unreasonable behaviour.

Should you require any advice or assistance with your divorce or with regard to your financial position following your separation, please do not hesitate to contact Ian Butterworth through this firm’s Family Department on 01202 636223. Ian is based in this firm’s Bournemouth office and is a Resolution Accredited Specialist in complex matrimonial finance cases.