Why you can't legally commit adultery if you have a gay or lesbian affair

If you cheat on your partner with someone of the same sex, it's not considered adultery - even if you're in a same-sex marriage

Rachel Hosie
Thursday 19 January 2017 11:56 GMT

What is considered grounds for divorce varies from person to person - whilst their partner embarking on an affair of the heart is enough for some people to call it quits, others will vow to stay together despite adultery.

In the eyes of the law, however, adultery is one of five reasons a person may file for a divorce from their partner.

But there are more caveats to citing adultery as a reason for divorce than most people know.

According to the Government, adultery is when “your husband or wife had sex with someone else of the opposite sex, and you can no longer bear to live with them.”

The opposite sex?

They then clarify that “it doesn’t count as adultery if they had sex with someone of the same sex. This includes if you’re in a same-sex marriage.”

Considering same-sex marriage is now legal in the UK, this implies that gay or lesbian married couples can’t file for divorce because of adultery, which seems incredibly outdated.

What’s more, with an increasing number of people identifying as bi-sexual or sexually-fluid, if a woman married to a man cheats on him with another woman, it wouldn’t be considered adultery in a court of law and would not be a valid reason for divorce.

One woman hit the headlines in 2015 after discovering her husband of 20 years had been having sexual relations with 10 different men, but she had no grounds for divorce.

Equally important to note is: “You can’t give adultery as a reason if you lived with your husband or wife for six months after you found out about [the adultery],” the Government’s website states.

So if you find out your husband’s cheated on you and you spend over half a year umming and ahhing before deciding you do in fact want a divorce, you won’t be able to get one unless you can cite one of the other reasons.

How you’d be able to prove when you found out about the adultery is another matter.

Aside from adultery, there are four other reasons a British citizen can file for divorce:

  • Unreasonable behaviour - examples include physical violence, verbal abuse such as insults or threats, drunkenness or drug-taking, and refusing to pay for housekeeping
  • Desertion - if your spouse has left you without your agreement, without a good reason, to end your relationship, or for more than two of the past two and a half years. If you’ve lived together for under six months in this period you can still claim desertion.
  • You’ve been separated for over two years - if you’ve lived apart for more than two years, this is reason enough to get a divorce if you both agree. Your husband or wife must, however, agree in writing.
  • You have lived apart for more than five years - living apart for this long is “usually enough to get a divorce”, even if your spouse disagrees with it.

It could be important to know.

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