The End of the Affair 2023 Update

April 2023 will be the anniversary of the introduction of no-fault divorce in England and Wales. It was a long-awaited reform, and it applies to opposite-sex and same-sex marriages equally, meaning that the new law swept away a curious vestige of marriage inequality: the definition of adultery.

Oddly, being unfaithful with someone of the same sex has never been "adultery" under English law, even though marriage equality was ostensibly achieved in 2013. This meant that for most same-sex marriages (and even 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 the 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 awkwardly drafted around the current meaning. The refusal to redefine it may have been simply reluctance on the part of the Commons to liven up Parlimentlive.tv 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 contradictory approach to recognising and regulating same-sex relationships.

Lawmakers have not 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 "moral" issues, traditionally dealt with by the church. That act 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, some judges and lawmakers have preferred not to 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 of divorce available for her: adultery or life-threatening cruelty. In a rather terse judgement, the court preferred the latter ground, in a tortured attempt to sidestep the question of whether attempted sodomy could qualify as an affair.

Several years earlier, 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 because she did not believe lesbians existed. This is not true (at least, Queen Victoria never had 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 to 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 when the first case came 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 indicated the prevailing view that same-sex relationships were illicit and dubious. This was not helped by the committee itself, which used the name of 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 after that report 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 decriminalisation battle lines 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 maintained its Janus-face into the 21st century. On the one hand, same-sex intimacy presented 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, 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 a helpful facet of family law, but the reasons for the discrepancy between same-sex and opposite-sex grounds for divorce still matter. It is right that no fault divorce has kept the law on a path towards marriage equality, and the change is welcome, but it is a shame the law is still travelling at all.

The reform left a final discrepancy in marriage law, which is that one cannot annul a same-sex marriage on the grounds of non-consummation. Just as the law does not recognise that gay sex can constitute adultery, it also does not recognise it as constituting 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.