The Answer is Maybe?
Adam Dupuis | August 2, 2015
What ever you want to call it, same-sex marriage, gay marriage, marriage equality, one thing will remain the same, there will be divorce. But when it comes time to go our LGBT separate ways, will there be the same legal battle and options that straight married couples would have when divorce is the only solution?
What are the reasons people seek a divorce? In all polls seen about the reasons for divorce, adultery / cheating is always the main category. What is interesting is that only 20 states classify adultery as an illegal act. (Idaho, Utah, Arizona, Kansas, Oklahoma, Minnesota, Wisconsin, Illinois, Michigan, Mississippi, Alabama, Georgia, Florida, North Carolina, South Carolina, Virginia, Massachusetts, New York, Maryland, Rhode Island). – divorcefamilylaw.com
What may be confusing is the definition of adultery. Here is a case from the UK:
Anna and her husband were married for 20 years before she discovered he was having 10 different sexual relationships with men. He denied everything, but the pictures and jokes she found on his phone left her in no doubt about what was going on.
When she contacted a lawyer to obtain a divorce, she assumed there would be two grounds open to her – adultery or unreasonable behaviour. Instead, she was surprised to find adultery was not an option.
This was because her husband had sex with other men and not with a woman. In the UK, adultery can only occur between members of the opposite sex and must involve vaginal intercourse.
She opted to divorce him on the grounds of unreasonable behaviour and it made no difference to the financial settlement. But she says she is among a minority of people in her situation who “care hugely about the betrayal and want to know that somebody somewhere has recognised that”. She is part of a support group with other spouses in a similar position.
Case law defines adultery as “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,” says Jonathan West, head of family and marriage law at Prolegal. “Sexual intercourse must involve penetration of the woman’s vagina by the man’s penis, however slight.”
[In the UK,] same-sex couples can either marry under the the 2013 legislation or opt for a civil partnership. In civil partnerships there is no ground for adultery whatsoever. Adultery can be grounds for divorce in same-sex marriage but the infidelity must involve members of the opposite sex.
Virginia law cites the need of there being male and female sex organs involved in the act to define the occurrence of adultery. To possibly cover men-on-men activity / adultery, the term sodomy is used. Leaving the forcible sodomy definition out, are lesbian sexual encounters a part of the definition of adultery in regard to divorce in Virginia? And then again, maybe Virginia should not be used since I am not sure I would want to know about buggery committed inside the marriage.
The Equality Network, a Scottish gay rights group, held focus groups with their members when the Marriage and Civil Partnership (Scotland) Act 2014 was being debated, and they didn’t feel the law on adultery needed to change. Unreasonable behaviour was considered to be sufficient. – bbc.com
But that is UK law, we cannot have the same concern here correct? Each state in America has their own divorce laws, definitions, and allowances. Some are as unchanged as the UK, while others have made alterations.
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