The advent of no-fault divorce has been welcomed by many sources as a positive change to the law, allowing couples to divorce without the assignment of blame. Whilst it will certainly lead to less acrimony for the vast majority of couples, no-fault divorce also represents the final step to true marriage equality.  

This is because, whilst same sex couples have been allowed to marry since 2014 and opposite sex couples are now able to enter into civil partnerships, divorce has never been an equal playing field. 

The current law dictates that you have to rely on one of five facts in order to divorce, namely:

• The other party’s behaviour, sometimes known as ‘unreasonable behaviour’;
• Adultery and intolerability;
• Two years’ separation with consent;
• Five years’ separation; or
• Desertion. 

Of those five, same sex couples are precluded from relying upon adultery in circumstances where a party to the marriage cheats with a person of the same sex. The leading case on this issue, Clarkson, defines adultery as voluntary sexual intercourse between a man and a woman who are not married to each other but one or both of whom are indeed married. This definition was reaffirmed in the Marriage (Same Sex Couples) Act 2013, despite being seen by many as a relic of a bygone era. 

The insistence that married same sex couples can only rely on adultery involving a member of the opposite sex, both severely limits the applicability of adultery as a fact and implies that same sex relationships are somehow less significant. By comparison, adultery is not a fact any party can rely on in civil partnerships and therefore civil partnerships have been equal since opposite sex couples could enter into them in December 2019. 

The case of Clarkson was first reported in 1930 and it should be noted that homosexuality was not decriminalised in England and Wales until 1967. Therefore, when adultery was initially defined, it was inconceivable that we would reach a point where same sex people could marry. 

Aside from the obvious inequality, the continued use of this antiquated definition has perhaps led to more animosity. This is because, instead of petitioning on the basis of the Respondent’s adultery, same sex couples are often left to rely upon the fact of the other party’s behaviour. A petition of this sort requires the Petitioner to give multiple examples of the Respondent’s behaviour which they deem to be both objectively and subjectively unreasonable. This could include, but is not limited to, adultery.  

The new law, which is due to come into effect in April of this year, requires a statement of irretrievable breakdown to be made. This can be made by one of the parties or the parties jointly, allowing for a constructive start to the divorce process. The removal of the five facts and the required assignment of blame will, it is hoped, help reduce conflict and allow the parties to focus on the more important details, like the children for instance. 

These changes are long awaited for clients and family lawyers alike. However, for those who identify as LGBTQ+, these divorce reforms remove the last vestiges of an unequal system and, 55 years on from the decriminalisation of homosexuality, it’s not a moment too soon.