As of 13 March 2014, pursuant to the Marriage (Same Sex Couples) Act 2013, same-sex marriage became legal in the UK. Before this, the only way same-sex couples had legal recognition of their relationship was through a civil partnership. The passing of this legislation also enabled same-sex couples to convert their civil partnership into marriage. The UK’s Office for National Statistics (ONS) published that, since the introduction of same-sex marriage in the UK in 2014, there have been more marriages among female same-sex couples each year, than male same-sex couples.
Despite the developments in England and Wales, same-sex marriage is not recognised or performed in Northern Ireland. In Northern Ireland, same-sex marriages can only be recognised as civil partnerships. Conservative peer, Lord Hayward, and labour MP, Conor McGinn, have formed a political double act in their campaign to have same-sex marriage extended to Northern Ireland. Both believe that the law in Northern Ireland must catch up with a fundamentally changed world. YouGov published an opinion poll in June 2018 showing that 80% of British people supported the introduction of same-sex marriage in Northern Ireland.
How do you file for divorce in a same-sex marriage?
When it comes to divorce, the person starting the process is known as the “Petitioner” and the other spouse is known as the “Respondent”.
UK law states that the only ground for divorce is the irretrievable breakdown of the marriage. You must be able to prove the ground for divorce on one of five grounds:-
- Unreasonable behaviour;
- Two years separation with your spouse’s consent
- Five years separation
- Desertion for a period of no less than four years.
However, the exception to same-sex couples is that under UK law, adultery does not apply. This is because the common law definition of adultery remains as intercourse between a man and a woman only. Therefore, if one party of a married lesbian couple cheats on the other with another woman, under UK law, this would not be adultery. This outdated rule can create frustration for same-sex spouses. Similarly, in a heterosexual marriage, if a husband cheated on his wife with a man, she would not be able to use adultery as a ground for divorce in court.
With this being the case, the closest ground for same-sex couples to rely on is “unreasonable behaviour”.
What about the children?
When it comes to the children, the key question is who are the child’s legal parents?
This is due to the fact that the legal parents may not be the biological parents. The child may be adopted or conceived through surrogacy. The legal parents (who have legal responsibility for the child and their upbringing) may have no biological connection with the child at all. Establishing who the child’s legal parents are creates a firm foundation on which to base the arrangements for its future; where the child will live, with which parent, where the child will go to school, how often they will see their other parent(s).
When making a child arrangement order, the court will base their judgment on a welfare checklist contained in the Children Act 1989. The welfare checklist considers the wishes and feelings of the child, the child’s physical, emotional and educational needs, the likely effect on the child of any change in their circumstance, the child’s age, sex, background and anything else the court considers relevant including how well the parents (or anyone else) look after the child’s needs.
Usually, when same-sex couples with children separate, only one party will be the biological parent of the children (although this is not always the case). However, having regard to the factors listed in the welfare checklist, being the biological parent may not be relevant, depending on each individual case.
If you would like to discuss any of the issues raised in the above article, please call 0330 123 1229 to speak to a member of our Matrimonial/Family department.