Marriage (Same Sex Couples)

Memorandum submitted by Joe O’Donnell (MB 08)

1. I am responding as an individual with a legal back ground who now writes for a legal journal. These views are my own and are not to represent those of my employer etc. I am a gay man who would not get a civil partnership due to the inherent, social if not legal, inferiority to marriage.

2. I welcome the fact that the Government intends to extend marriage to same sex couples. However, I was very disappointed to note that the Marriage (Same Sex Couples) Bill 2013 contains provisions that mean that same sex couples will be prevented from relying on adultery as a ground for divorce, or non- consummation as a ground for annulment. By excluding only same sex couples from these provisions the Government undermines its commitment to truly equal marriage.

3. Part 3 of Schedule 4 to the Marriage (Same Sex Couples) Bill 2013 would amend S.1 of the Matrimonial Causes Act 1973, which deals with the divorce, so that only 'conduct between the respondent and a person of the opposite sex may constitute adultery'. Current case law states that adultery requires penile penetration of a woman by a man as explained here. Thus neither straight couples nor homosexual couples could currently argue that the fact that their partner had sex with someone of the same sex amounted to adultery. Setting aside the fact it seems very strange that same sex outside marriage does not constitute adultery for straight couples, why does that need to be explicitly spelt out in legislation for gay couples and not straight ones – deviating from true equality before the law?

4. The Bill would also amend S.12 of the Matrimonial Causes Act, so that the marriage of a same sex couple would not be voidable on the grounds that the marriage has not been consummated due to a spouse's incapacity, or a respondent's wilful refusal to consummate the marriage.

5. Possible reasons for the Government's proposed deviation from the idea of equal civil marriage are unappetising. Does the Government think that all same sex partners' sexual morals are so louche that the idea of a monogamous relationship is alien and therefore adultery is not needed to support a divorce petition? Does the Government think same sex couples' sexual appetites are so voracious that no same-sex marriage could possibly remain unconsummated? Or perhaps the Government just couldn't bring itself to contemplate the idea of a court having to decide what constitutes consummation for a same sex marriage, or hearing the lurid details of an extra marital same sex affair? It’s probably more likely that these proposals were added to the Bill as a result of a combination of these factors and an unwillingness to engage with what the Government perceives to be complicated issues. Regardless of the reason it undermines the good intentions behind the Bill.

6. What is telling is that the Government has introduced the Marriage (Same Sex Couples) Bill 2013 not the Equal Marriage Bill 2013. Surely supporting a Bill which would create truly equal marriage would be a better position for the Government than the current proposals which are likely to upset both supporters of the traditional definition of marriage and some in the gay community such as myself.

7. The Bill should be amended to create truly equal marriage by allowing divorce/ annulments on the same basis.

8. It would also be very sensible to introduce provisions in the Bill amending the Matrimonial Causes Act to reform divorce across the board. A non fault based divorce, without any mention of adultery or non consummation, would not only avoid any difficult issues but it would make divorces much simpler for litigants in person. This is an extremely important consideration given the Government’s savage cuts to legal aid for divorces. I am currently advising on my uncle’s divorce, even though it is not within my area of expertise, because he is unable to get legal aid. He is not a rich man but a carer who works part- time to look after his disabled son.

9. The House has the opportunity to fix some major societal ills. I hope it will take that opportunity.

February 2013

Prepared 15th February 2013