In the context of society at large, the law continues to be a relatively conservative entity that is not always entirely at ease with the more recently recognised family set up. Most lawyers would rarely encounter same-sex partners seeking a divorce, not least because the Marriage (Same Sex Couples) Act 2013 only came into force in March 2014. In view of the fact that same-sex couples have to be married for one year before they can seek a divorce, having a divorce in a same-sex marriage has only been possible in England and Wales for just over two years, whereas there is over 40 years of case law that applies for opposite-sex couples. For same-sex couples each set of circumstances is new, so it is important to find a lawyer with whom you can be fully at ease.
One of the supporting facts for a divorce is adultery. However, in the eyes of the law, it is only possible to commit adultery with someone of the opposite sex; so a same-sex spouse cannot commit adultery with someone of the same sex. Some might feel that a betrayal of that nature ought to have similar consequences, regardless of whether the person was of the opposite sex or not.
The powers of the court in making financial orders are identical in same-sex marriages as they are in opposite-sex marriages, but the way in which they are applied can differ. The focus continues to be on achieving fairness, but not necessarily to treat same-sex couples identically to opposite-sex couples. A party’s gender can affect their earning capacity and the court’s assessment of their needs. Similarly, the gender dynamic in an opposite-sex couple’s relationship may prioritise the husband’s career, where the wife bears the children. The court then needs to address the gender-related economic disadvantage to her that can occur.
In the past it may well have been uncommon for male same-sex couples to bring up children together, and more common for female couples to have children from previous relationships, but this is no longer the case and doesn’t merit different expectations or treatment.
For further information
To find out more about how Anthony Collins Solicitors can support you through a same-sex divorce or civil partnership dissolution and marriage and relationship challenges, please contact Elizabeth Wyatt. Similarly, opposite-sex couples face similar challenges when getting divorced; they are outlined here.
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