The process to end a same-sex marriage or civil partnership is the same as for divorcing couples of the opposite sex, except for one important difference: same-sex couples cannot rely on adultery. Rebecca Worsley examines the procedure for ending a same-sex marriage or civil partnership.

The Civil Partnership Act 2004 enabled same-sex couples to have their relationship formally recognised under the law. In 2013, same-sex marriages were legalised by the Marriage (Same-sex couples) Act 2013, and in 2014, those already in same-sex civil partnerships could convert their partnership into a marriage.

Ending a same-sex marriage

To bring a same-sex marriage to an end, couples can follow the same process as opposite-sex couples when applying for a divorce under the Matrimonial Causes Act 1973. Similarly, those in a civil partnership can apply for their partnership to be dissolved by applying for a dissolution order under the Civil Partnership Act 2004.

There is, however, one key difference: same-sex couples are unable to rely on the fact of adultery where same-sex infidelity has occurred. The reason for this is that the historical legal definition of adultery under English law is “voluntary sexual intercourse between a man and a woman who are not married to each other but one or both of whom is or are married”. In other words, adultery only relates to extramarital sexual relations between two members of the opposite sex.

Given that relationships between same-sex couples have been recognised under law for some time, this definition is out of date. Although reform has been called for in recent years, the main family law issue under the spotlight is the move towards no-fault divorce, which happily comes into force this April.

Showing that a same-sex relationship has irretrievably broken down

Until the definition of adultery is addressed under law, same-sex couples must rely on one of the other four facts listed under the Civil Partnership Act 2004 or Matrimonial Causes Act 1973 to show that the relationship has irretrievably broken down. These are:

• Unreasonable behaviour

  This is the most commonly used fact as it is wide-ranging and can be applied on a case-by-case basis depending on the facts of each relationship. The burden is on the petitioner to give specific examples of the respondent’s behaviour showing why it is intolerable for them to continue living with them.
  As adultery is not open for same-sex couples to rely upon, where infidelity has been one of the causes for the breakdown of the relationship, it is commonly cited as an example of the respondent’s unreasonable behaviour. This is often the approach taken for opposite-sex couples too, where they do not wish to rely on the fact of adultery.

• Two years separation (with consent)

  The petitioner must prove that the parties have lived separately for a continuous period of at least two years immediately prior to the application to the court. If the parties continue to live in the same household, for financial or childcare reasons, for example, it must be established that the parties have been living independent lives, albeit under the same roof. Under this fact, the respondent must consent to the application for divorce/dissolution.

• Two years desertion by the other party

  The petitioner must prove that the respondent has deserted them for at least two continuous years immediately prior to the application to the court. This fact is rarely used in practice.

• Five years separation (no need for consent)

  The petitioner must prove that the parties have lived separately for a continuous period of at least five years prior to the application. This does not need to be agreed to by the respondent.

Uncontested divorce or dissolution of same-sex marriage

If the application for divorce or dissolution is uncontested, the court will acknowledge the statements made in the application and accept that the relationship has irretrievably broken down. The court will then issue either a decree nisi in divorce cases or a conditional order in dissolution proceedings. Neither of these court orders means the marriage or civil partnership has ended. However, they confirm that the court has accepted there is sufficient evidence and reason for it to grant a full divorce or dissolution, pending the final stages of the procedure.

Six weeks and a day after the pronouncement of decree nisi or conditional order, the petitioner can apply for the decree absolute (divorce proceedings) or final order (dissolution proceedings). This is the final stage of the process and officially ends the marriage or civil partnership. The timeline for any divorce or dissolution is often much longer than six months and one day due to the interplay between these proceedings and any financial proceedings. How long it takes varies greatly, and much depends on the facts of each case.

No-fault end to same-sex marriage or civil partnership

On a final note, the procedure set out above is the only option for couples currently going through a separation, as has been the position for some time. However, from 6 April 2022, couples will be able to bring their marriage or civil partnership to an end on a “no-fault basis”. This is something that family practitioners have been championing for many years in the hope it will bring less animosity to the divorce or dissolution process.

Find out more about financial provision in civil partnerships.

Read about Civil partnership agreements here.

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