The hugely popular television presenter Rylan Clark-Neal has announced he and his husband, Dan, are to divorce. In a statement released on 28 June, Rylan said: “I have made a number of mistakes which I deeply regret and have inevitably led to the breakdown of our marriage. I have taken time away from work as I am not in a good place at the moment and am seeking help.”
Our Managing Partner and award-winning family law expert Amanda McAlister explains how divorce in a same sex relationship will be enacted.
It is reported that Rylan’s well-publicised desire to have children, and Dan’s longing for a TV career, may well be the reason for the split, with insiders saying: “they just couldn’t resolve their differences”.
Whether this is true or not, one partner wanting children and the other wanting to focus on their career is certainly not an uncommon reason for a couple deciding their desire to pursue different life choices means they no longer wish to be together, and therefore filing for divorce.
Irretrievable breakdown
In the courts of England and Wales there is only one ground for divorce and that is the “irretrievable breakdown of the marriage” as set out in the Matrimonial Causes Act 1973. What this means is that one or both parties to the marriage are not willing, or do not want, to continue living and being in a relationship with one another, having determined that the marriage is over for good.
Whilst there is one ground for divorce, there are five legally accepted facts (or reasons) for a divorce to take place. Although a no-fault basis divorce is in the pipeline and legislation is planned for April 2022, unfortunately until then, we are still working on a fault-based system.
What are the Five Facts?
In the Petition, the Petitioner (the person who issues the divorce Petition) must prove that the marriage has broken down irretrievably by evidencing one of five, specific, statutory facts:
- The Respondent’s adultery
- The Respondent’s unreasonable behaviour
- Desertion – the Respondent must have deserted the Petitioner for at least two years (in practice, this is rare, and difficult to prove)
- two years’ separation with agreement by both that there should be a divorce
- five years’ separation (the consent of the Respondent is not needed)
The most common facts relied upon are adultery, or unreasonable behaviour.
One crucial difference
There is, however, one crucial difference for same sex divorces as opposed to heterosexual divorces, and that is that adultery cannot be used in a same sex divorce. This is due to the current law defining adultery as when “your husband or wife has had sexual intercourse with someone else of the opposite sex”.
On that basis – that adultery can only be grounds for divorce where there has been sexual intercourse between two people of the opposite sex – sexual intimacy between two people of the same sex is not “adultery” for the purposes of obtaining a divorce, if one of those people is in a same sex marriage.
However, in same sex marriages, although adultery is not a ground for divorce, the infidelity could be used as an example of unreasonable behaviour. Apart from the difference in the terms of the ground of a divorce, the application process is the same for same-sex and opposite-sex couples.
