The End of the Affair: Adultery and same-Sex Marriage

In April 2022, no-fault divorce came into force in England and Wales. This applies to all marriages and civil partnerships equally, meaning that although marriage equality was ostensibly achieved 9 years ago, it is only with this new law that a curious vestige of inequality has been swept away. 

It may surprise many people to know that unfaithfulness with someone of the same sex was never considered "adultery" under English law, even though marriage equality was ostensibly achieved in 2013. This meant that for most same-sex marriages (and opposite-sex marriages where a partner had been unfaithful with someone of the same sex) adultery could not be relied on as grounds for divorce. Legally, adultery is defined as "voluntary sexual intercourse between a man and a woman who are not married to each other but one or both of whom is married'. The law is also specific that this needs to be penetrative sex, and 'some lesser act of sexual gratification" would not qualify.

In the 21st century, you might think this anachronism was due to an oversight, but you would be wrong. Keeping the definition of adultery between one man and one woman was a deliberate choice in 2013; vigorous debate in parliament highlighted that the law has long historic precedent on the sticky issue of what constitutes sex, legally speaking. Instead of changing the legal definition of adultery, the Marriage (Same Sex Couples) Act 2013 was just awkwardly drafted around the current meaning. The refusal to change the definition might have been due to a reluctance on the part of the Commons to liven up the parlimentlive.tv stream with MPs debating what they thought should count as 'real' sex. This was undoubtedly a missed opportunity - both for equality and for getting teenagers interested in politics - but it was fairly representative of the law's confused and sometimes contradictory approach to recognising and regulating same-sex relationships. 

It definitely cannot be said that lawmakers have always hesitated to delve into the nitty-gritty of sex. In fact, the Acte for the Punishment of the Vice of Buggerie (aka the Buggery Act 1533) was the very first act of Parliament to deal with the "moral" issues traditionally dealt with by the church, and it set the precedent for our current doctrine of Parliamentary omnicompetence. Legal enthusiasm for making sure everyone was having the 'proper' sort of sex, all the time, no exceptions, is quite literally as old as our legal system itself. 

However, as the country's family courts have evolved, there have been some excellent examples of judges and law makers who would really rather not deal with the ins and outs of all that, thank you very much. In Mogg v Mogg (1894) 162 E.R. 301, a wife sought to divorce a husband who had been convicted of "lewdly, wantonly and wickedly pressing" his male apprentice to permit him to take "indecent liberties". There were only two grounds available for her to divorce him: adultery or life-threatening cruelty. In a rather terse judgement, the court preferred the latter ground, in a rather tortured attempt to sidestep the question of whether attempted sodomy could qualify as an affair. 

Several years previously, the Criminal Law Amendment Act had criminalised 'gross indecency' between men. There is a myth that Queen Victoria objected to this law also applying to women, on the basis that she did not believe lesbians existed. This is not true (at least, Queen Victoria never had an input into the bill - whether she had confused lesbians with unicorns is not recorded). However, it is absolutely the case that lawmakers have had, at best, a timorous approach to female same-sex relationships. Historically, the courts tended to prosecute women who have impersonated men to marry other women for financial fraud, rather than countenance the idea the women involved might have a motive besides owning their own money. In 1921 Parliament considered whether the criminal law should also criminalise 'indecent' acts between women. The bill was quickly withdrawn after the Earl of Desart made an impassioned plea for the House to keep the idea of lesbians to themselves. Otherwise, he argued, "hysterical" young women would inevitably start blackmailing each other with prosecutions, and once one of them got before the court, it would bring the concept of lesbianism 'to the notice of women who had never heard of it, never thought of it, never dreamed of it'. And, Lord Desart argued, once the mere idea of lesbianism floated through the pretty little heads of the respectable women of England, there would be "a perfect outburst of that offence all through the country". 

It is hardly penetrating academic insight to state that even as same-sex relationships moved towards social acceptance, the law still treated homosexuality as 'less than'. The Wolfenden report in 1957, which recommended the decriminalisation of homosexuality, was also tasked with considering the legal status of prostitution. The dual brief illustrates a prevailing view of same-sex relationships as illicit and seedy. This was not helped by the committee itself, which started out co-opting the name of the biscuit manufacturers Huntley & Palmers as pseudonyms – "Huntleys" were "homosexuals" and "Palmers" were "prostitutes". This was to avoid shocking the sensibilities of the secretaries on the case, and not because Sir Wolfenden thought gay men were snacks.  It took another decade to achieve partial decriminalisation, and even then, the age of consent to homosexual sex was 21, whereas the age of consent to heterosexual sex was 16. 

The battle lines around decriminalisation were thus redrawn around age of consent. The ensuing decades saw various campaigns and recommendations for equality, which was fiercely resisted in certain quarters. The final push came in the late 90s, and the then Home Secretary Michael Howard (supporting a compromised position of lowering the homosexual age of consent to 18), neatly summed up both sides of the argument with the weaselly pronouncement:  “We should not criminalise private actions freely entered into by consenting mature adults. On the other hand, we need to protect young men from activities which their lack of maturity might cause them to regret.” Where two young men could not be trusted, the involvement of a 17-year-old girl would apparently assuage Mr Howard's concerns. In any case, in 2001 the Commons finally had to invoke the Parliament Act to overrule the House of Lords on the issue, as they kept rejecting the bills. 

As a consequence, the law's treatment of same-sex relationships has maintained its Janus-face into the 21st century. On the one hand, same-sex intimacy presents such a danger that 16-year-olds needed legal protection from it, even though in 2001 the law held them perfectly capable of entering opposite-sex marriages, joining the armed forces or taking up smoking. On the other hand, until this April, the law treated same-sex relationships as falling short of the definition of 'adultery' and often failed to deal with issues involving gay sex with frankness and good faith. Few lawyers would argue that the ability to divorce on the grounds of adultery was not a helpful facet of family law, but the reasons for the discrepancy between same-sex and opposite-sex grounds for divorce matter a great deal. It is right that no fault divorce has kept the law on a path towards marriage quality, and the change is welcome, but it is a shame the law is still travelling at all. 

April's reform leaves a final discrepancy in marriage law, which is that one cannot annul a same-sex marriage on the grounds of non-consummation. As marriage law still does not recognise sex outside of its narrow definition as constituting adultery, it also does not recognise anything outside of heterosexual sex as consummation. Same-sex marriages could not have this ground for annulment without casting a permanent shadow of voidability over them all. Perhaps it is time for some slightly more imaginative re-drafting to put this whole issue to bed.