Is separation, divorce and dissolution, the same for same sex couples as it is for straight couples?
Saturday 5th August 2017
Research surrounding the breakdown of relationships, indicates that same sex couples are as likely or perhaps slightly less likely, to terminate their relationships when compared with heterosexual couples. Various studies have indicated that when it comes to ending a relationship, statistically it is about as likely to happen in a gay relationship as it is in a straight relationship.
The statistics from these studies indicate that the causes and problems before and during the breakdown, are very similar for both same sex and heterosexual couples. The real questions are about the underlying issues that same sex couples face. These are problems that arise as the cause of the relationship breakdown as well as ones that occur while the relationship is being terminated.
Adultery in same sex marriage
While there are several grounds on which a divorce can be applied for, adultery is not available to gay couples for dissolution because the legal definition of adultery requires that the unfaithful partner has had sexual intercourse with a person of the opposite sex. However, the legal loopholes are wide open as it is perfectly possible for a person in a same sex marriage to have adulterous intercourse with a person of the opposite sex.
A same sex divorce case in the UK, citing adultery as grounds and based on an extramarital relationship with a member of the opposite sex, has yet to be cited: but in terms of the law that is possible.
In a nutshell, if a person in a homosexual marriage has extramarital intercourse with a person of the same sex, they cannot be sued for divorce on grounds of adultery. However, if that party has intercourse with a person of the opposite sex, then they can be sued on grounds of adultery. This has yet to be tested in the courts.
Same sex couples also face problems with issues around parenting, children and child support.
With gay and lesbian couples, often one of the parents is not the biological parent and depending on the circumstances, may not have any legal rights with regard to the children. With lesbian couples, it may be the case that one partner has had IVF treatment and is registered as the parent while the other has not. However in recent years, it has become possible to register two parents of the same sex as the child's parents. Parties in that situation will find themselves in a similar position to most married couples that have had children together.
There are still many couples where only one person is registered as a parent and consequently, access to the child may become a thorny issue during the break up. It is possible that a gay couple have a situation where they have used a surrogate who is still registered as the mother and no adoption has taken place, although the biological father is legally the second parent.
Same sex couples are more likely to encounter legal grey areas when it comes to the children that they have had together. To protect both parties and the children, entering into mediation is an excellent route to resolve differences and save on mounting legal fees.
Civil partnerships were originally brought into existence to recognise long term, committed relationships and provide the same security to same sex partners that married couples enjoyed. Civil partnerships still exist and are comprised of a civil contract. A civil partner is treated as next of kin in emergency situations and enjoys similar (but not the same), pension and inheritance rights that a partner does in a heterosexual marriage.
The method by which pension rights are calculated for civil partners, is different to those in a marriage. In a civil partnership, rights to a partner's pension are usually calculated back to the date of the Civil Partnership Act becoming law in 2004. In some cases within public sector pension schemes, rights may be dated back to 1988, but not before.
For heterosexual married couples, marital pension rights are dated back to when the partner joined the scheme. This has been challenged more recently as discriminatory, with a recent court success meaning that the same rights could be applied to both married couples and civil partners.
However as a result of this shortfall, there is a very real possibility that when a couple part ways, the partner that is losing out on the pension will seek other financial relief to make up for the pension loss.
Making arrangements such as the division of marital assets, is similar with both same sex and heterosexual marriage situations as well as civil partnerships. These will be negotiated depending on children, their needs within the relationship and how the children are recognised in relation to the couple as parents. This means that the home may need to be sold or one partner may have to make financial provision both for the children and the other partner who is responsible for looking after the children.
Some countries that have same sex marriage do not recognise civil partnerships. This means that although they recognise same sex marriages, couples in civil partnerships are not recognised as legally partnered. Relationship status is complicated enough in countries that do not recognise either civil partnership or same sex marriage but in countries where freedom to have a same sex relationship appears to be clear, it may in fact still not be straightforward. This problem can arise where one partner is living in England and other in a country such as Sweden, Argentina or Portugal where complications regarding the status of the relationship are likely to be encountered.
Dissolving relationships across borders is a complicated process in any event, however when having to deal with countries that do not recognise either same sex marriage, civil partnership or both, the legal complications become a lot more difficult to deal with.
Gender is a complicated area of marriage law. In England when a trans person married as one gender, has transitioned to another gender and the couple want to remain married, for their relationship to be recognised, they must get divorced. The trans partner then needs to obtain a gender recognition certificate after which they can remarry as a same sex couple. This is no longer the case in Scotland.
The additional problem that exists, is that if a same sex couple where one partner decides to transition is in a civil partnership, they will have to dissolve the partnership so that the partner can obtain a gender recognition certificate and then they can marry. Civil partnership has effectively created a discriminatory rule against straight couples and trans individuals, intentionally or otherwise.
Gender expression is an exceptionally sensitive area and the law has not yet advanced to recognise both the needs and rights of people who are transitioning. Those who have transitioned are not recognised as inclusively as others, meaning that their relationships are often found to be in a state of limbo, one way or another. Couples who are heterosexual on paper may in fact want to be recognised as a same sex couple and couples who are same sex on paper may in fact want to be recognised as heterosexual.
When relationships break down there are often common themes running through. Among other catalysts to relationship breakdown, a partner may have been unfaithful or domestic abuse may have taken place. Same sex relationships are as vulnerable to the same problems that heterosexual couples face. The way those problems manifest, particularly during the breakdown of their relationship, may be different between same sex and heterosexual couples. The solutions may also be different, but in most cases mediation will result in a positive outcome, saving massive legal bills and assisting both parties to move on with their lives.