On this gay marriage thing: define what sex is

I\’m getting the impression that our Lords and Masters have got themselves confused again.

Things are interconnected you see? Bit like that Blairite abolition of the position of Lord Chancellor. Suddenly vast parts of the law just didn\’t work, for the system developed over the centuries assuming that there would always be a Lord Chancellor. So by the afternoon of abolishing the position of Lord Chancellor they had to reinvent it.

And it seems that gay marriage is running into the same sorts of problems. Not whether it\’s a good idea or not (my views have been known for some time. One form of civil marriage for any two consenting adults and what religions do after that is up to them) but that it\’s all interconnected.

What, for example, is consummation of a marriage? There is an important difference here: a non-consummated marriage can be annulled. A consumated one (yes, more often in the breach but still) cannot, can only be divorced. Although I admit, I don\’t know whether that\’s a religious distinction only or a legal one as well.

And what is adultery?

Sure, we all know what we mean here. But this is the law. These things must be defined. And how do we do that?

We might, among men, say that bringing to ejaculation is adultery. But is it? I actually don\’t know: is a heterosexual hand job adultery? Looking sat it from the other definitions of sex we have, say the rape laws, it\’s not \”sex sex\” is it? For which we need penetration of one of three orifices.

I\’ve no idea what the answers are or even should be. Could be even. But it is all a bit more complicated than it at first seems, isn\’t it?

64 comments on “On this gay marriage thing: define what sex is

  1. “a non-consummated marriage can be annulled. A consumated one (yes, more often in the breach but still) cannot, can only be divorced.”

    Well, if it’s in the breech, it shouldn’t be a problem should it?

  2. This is one of the strongest arguments against the ham-fisted approach by the government, which is that they just haven’t thought this through at all. As I understand it, the law’s position on marriage is roughly the position held by the anti-same sex marriage brigade, which is that marriage is basically designed for biological families, and that heterosexual couples without the ability or the desire for children can get in because, well, we kind of mumble a bit at this point but basically it’s fairly clear that you couldn’t prevent them without intolerable levels of prying, and that’s probably good enough as a reason.

    So in all, the position ends up (again, this is all as I understand it from someone who knows the law and who started out far more favourable to gay marriage until they looked into the legal aspect) that your guess is about right: you need penetration in order for intercourse to give rise to a (potential) suit for adultery. Other forms of sexual activity would certainly fall under ‘unreasonable behaviour’, but the overall picture is that the law as currently set up cannot cope with the idea of two people of the same sex being married.

    Additionally, there is the dear old Church of England, which is in a particularly complicated situation because it is constituted by the prayer book, and to change the prayer book requires primary legislation: no-one gets this point nowadays, so that everyone talks about the government’s approach to the established church as though it was a regressive move rather than a recognition of the constitutional complexities.

    All in all, it almost certainly would be easier to get marriage out of English law altogether than it would be to make a proper attempt at defining same-sex marriages in a way which protects traditional religious (and some non-religious, lest we forget) views of marriage; and then to have a civil partnership for everyone who wants one with a marriage for anyone who wants, and will be given one, by any faith or social community of their choosing. And indeed, either of those without the other.

    None of this, so it appears, is going to stop the Westminster crowd, who have decided it is the Politically Correct thing to do even though it is very nearly Constitutionally Insurmountable. And so we’ll get yet another constitutional dog’s breakfast served up to the long-suffering courts.

    Carry on Westminster!

  3. Grounds for divorce:
    1. Adultery
    2. Unreasonable behaviour
    3. Desertion
    4. You have lived apart for more than two years
    5. You have lived apart for more than five years

    Grounds for ending civil partnership
    1. Unreasonable behaviour
    2. Desertion
    3. You have lived apart for more than two years
    4. You have lived apart for more than five years

    Unreasonable behaviour can include being sexually unfaithful. Whether the behaviour described in specific proceedings constitutes unreasonable behaviour is a matter for those specific proceedings.

    AIUI, adultery requires a penis penetrating a vagina. A woman can’t proceed on the grounds of adultery if her husband has been given blowjobs by the intern. She could say it’s unreasonable, though.

    So I don’t see why gay divorce will necessarily be more complicated than straight divorce or ending a civil partnership.

  4. Ukliberty: it wouldn’t. This whole thing is a completely nonsensical red herring. The easiest way to deal with it would be to abolish ‘adultery’ and ‘non-consummation’ formally, since ‘unreasonable behaviour’ amply encompasses either.

  5. @UKL

    I may be being stupid but:

    a) isn’t ‘living apart for more than five years’ rather encompassed by ‘living apart for more than two years’?

    b) so if you cheat on your wife either with a man, or with a woman but in what we might describe as ‘the public school manner’, that isn’t technically adultery, just ‘unreasonable’? Good lord.

  6. What’s the problem if we just allow same-sex marriage and leave the laws on consummation and adultery as they are? The only people who care that they get an annulment rather than a divorce are those whose religion doesn’t permit them to remarry otherwise. I suppose none of them will have entered into a same-sex marriage. And if you can’t get a divorce on grounds of adultery, which is already the case if your opposite-sex spouse has a homosexual affair, you can get one on grounds of their unreasonable behaviour instead.

    Incidentally, there are grounds for annulment other than non-consummation. Including VD at the time of the marriage.

  7. Annulment is still possible under English law, for both marriages and civil partnerships.

    http://hmctsformfinder.justice.gov.uk/courtfinder/forms/d008n-notes-eng.pdf

    Non-consummation is grounds for annulment of a marriage, but not of a civil partnership.

    I can’t find the figures, but remember seeing some; I think the number of marriage annulments in England is a couple of dozen a year or thereabouts. I wonder if there have been any annulments of civil partnerships.

  8. sam,

    a) no, you’re not stupid, I wasn’t at all clear (for the sake of brevity). You can get a dissolution (divorce or ending the civil partnership) if you’ve lived apart for two years and both spouses agree in writing to the dissolution. If you’ve lived apart for more than five years, the agreement of the other spouse isn’t required. This applies to marriage and civil partnerships.

    b) yes. For adultery, the husband or wife must have engaged in consensual heterosexual sexual intercourse, i.e. penis penetrating vagina, with someone outside the marriage.

  9. PaulB, it’s a minor thing but one reason for people going for annulments is that they can be applied for at any time, whereas a divorce has to wait for 12 months after the marriage.

    I vaguely remember a gay rights group trying to kick up a bit of fuss about this “injustice” when the civil partnerships law was going through.

    And it wouldn’t surprise me if there are Christians who support same-sex marriage but not divorce; you get all sorts in the CofE.

  10. I don’t think a definition of homosexual adultery is hard to come up with – pretty much everything a straight couple can do that counts as adultry a gay couple can (short penis/vagina sex). Oral/digital/anal all count as sex.

    As for annullment – these are the reasons allowed under british law

    •If the marriage hasn’t been ‘consummated’ (you haven’t had sex with the person you married since the wedding), either because one of you chooses not to or is not physically capable
    •If either party was already married at the time of your marriage
    •If either party didn’t or was unable to give valid consent to the marriage
    •If you or your spouse was under 16 at the time of the wedding
    •If you weren’t a fully male/female couple
    •If you and your spouse were related (this is complex and needs some consideration by an experienced lawyer)
    •If your spouse had a communicable form of a sexually transmitted disease when you got married
    •If your spouse was pregnant with someone else’s child and you didn’t know about it
    •If you didn’t conform with the proper legal requirements – i.e. not filling in forms properly

    The only one that’s iffy is the first – and really only for churches – the one’s who insist that marriage is primarily for procreation anyway.

    As the law had determined what constitutes homosexual sex before homosexuality was legal (for the purposes of persecting/prosecuting ‘em) even that’s taken care of within the secular courts.

  11. Is this what the antis are reduced do, desperately peddling inconsequential technical arguments in the hope of putting up roadblocks?

    For starters, annulment is only an issue where a church declines to marry divorcees, and I think you’ll find that the religious denominations that are content to conduct same-sex marriages are equally relaxed about marrying divorcees without an annulment.

    So until either the Church of England or Roman Catholic Church chooses to do an about face on same-sex marriage, consummation is a non-issue.

    As for adultery, this was dealt with in the consultation and government response. Although it was suggested that the legal definition of adultery could be expanded using the definition of sexual activity in the Sexual Offences Act 2003 it was also noted that the use of adultery as grounds for divorce is diminishing anyway and that unreasonable behaviour provides a perfectly adequate alternative, so it’s been decided to leave things as they are. Same-sex couples will not be able to cite adultery as grounds for divorcee, true, but in practical terms this makes no odds.

    As for the Church of England being constituted by the prayer book and the requirement for primary legislation, I’m afraid your understanding of the constitutional law is a little out of date – by at least a century and probably longer.

    The Church of England is constituted through a combination of statute and canon law which can be revised and amended with the approval of Parliament through Church of England measures passed in the General Synod.

    So, if an when the CofE changes its position on same-sex marriage it need only draw up a measure to remove the ‘lock’ clauses in the current bill and make the necessary amendments to canon law and the prayer book and secure the approval of the General Synod and Parliament’s Church Committee, after which convention should see the measure pass through the House without challenge an on to Royal Assent.

    Only the Church of Wales will require full primary legislation because its in the slightly odd position of having been disestablished – losing the ability to pass its own measures – while still retaining its legal duty in common law to marry any parishioner who asks irrespective of their religious beliefs.

    The Church of England’s position will only become complex if, for any reason, Parliament chooses to reject a measure after its been approved by General Synod, creating an impasse which could only be resolved in the Church’s favour by disestablishment. In practice, however, it is unlikely such a situation would arise as the Church is highly unlikely to put such a measure to vote in the General Synod without first having obtained approval in principle from the Church Committee.

    It is not as if Parliament has not exercised its veto before without the sky falling in on the Church. Back in the 1920′s, proposed revisions to the Book of Common Prayer were rejected by Parliament forcing the Church to go back and do its homework properly. I forget the exact terms in which Parliament couched its objections but the general gist was ‘it’s a bit too Catholic for our liking’.

    There is nothing here that is ‘constitutionally insurmountable’, it will just require Parliament and the Church of England to demonstrate a bit of legislative finesse if and when the CofE decides to join the 21st Century.

  12. Isn’t the bigger issue how you define consummation of a homosexual relationship?

    OK, it’s easy(ish) to define consummation for men, but apparently not all of them want to/like doing that. For women it’s a bit harder to define consummation.

    It’s worth adding that while non-consummation is obviously unreasonable behaviour within a marriage it is almost as unreasonable to simply consummate a marriage and then subsequently fail to do one’s duty. So one could get round the problem by abolishing annulment (does it even happen legally as opposed to religiously?) and wondering for each individual case precisely what one’s duty is and with what frequency one should lie back and think of England?

  13. Re prayer books, didn’t the CoE update things in about 1980, and went decidedly Catholic? Alternative service book or something, they called it?

    In fact from my experience in the ’90s of both strands of god delusion, one would be hard pressed to tell the difference between the Angles and Cathlics unless well versed in the minutiae of the missals.

  14. Will same sex marriages still prevent brothers marrying, or mother marrying a daughter, or other blood unions – assuming both parties are 18 years or older?

    If not on what grounds? There can be no issue of idiot children resulting from the union?

    It would be a good way to avoid inheritance and other taxation.

    Similarly since no spouse can give evidence against the other, will we see criminals getting married so evidence from one cannot be used against the other?

    Divorce being quick and cheap these days, once same sex marriage is allowed, all those inventive minds out there homo and hetero will find good use for it.

    Then we shall hear the litany of woe about the ubiquitous unforeseen and unintended consequences that only politicans and ‘activists’ cannot foresee.

  15. “One form of civil marriage for any two consenting adults and what religions do after that is up to them)”

    Why only two? Civil partnerships present a few wholly surmountable legal difficulties, but legalising polygamy will be an incredible mess in comparison.

    And there we come to the root of the whole problem: what damn business of the government’s is it who I shack up with?

  16. You have lived apart for more than two years

    Jeez, I’ve not lived with my wife for longer than that! Something to do with my being in Nigeria, which may also come under “unreasonable behaviour”.

  17. If you really want a definition of what adultery or consummation are why not just use the equivalent definitions from the Sexual Offences Act, just add consent?

    Or we could stop worrying about what actually constitutes a “marriage” and let people register their relationship. If they want to turn it into a marriage in the eyes of God or whatever fluffy tradition they fancy then fine.

  18. Dave(Jan 28, 2013 at 3:01 pm) points out that
    Mr. Worstall does not agree with polygamy.

    Could Mr. Worstall tell us how he would argue against polygamy should Mormons or Muslims begin agitating for laws to allow it?

    Tim adds: Mr. Worstall has never made public his views on polygamy so quite how you divine them I’m not sure. You want multiple mothers in law, you go for it sunshine.

    I don’t think this is going to become any part of the English legal system any time soon though. Which is what we are talking about here.

  19. John B @15

    Will same sex marriages still prevent brothers marrying, or mother marrying a daughter, or other blood unions – assuming both parties are 18 years or older? If not on what grounds? There can be no issue of idiot children resulting from the union?
    It would be a good way to avoid inheritance and other taxation.

    Civil partnership law prevents brothers marrying, a mother marrying a daughter etc. Why? To discourage inappropriate relationships within families that can cause dysfunction to the family members and disadvantage society.

    Similarly since no spouse can give evidence against the other, will we see criminals getting married so evidence from one cannot be used against the other?

    Inaccurate.

    http://www.cps.gov.uk/legal/a_to_c/competence_and_compellability/#an07

    What’s the extent of criminals taking advantage of today’s rules in that regard? Anything to worry about?

  20. John B:

    As so defines the offence of ‘sex with an adult relative’ in gender neutral terms then, no, legalising same-sex marriage will not create scope for same-sex blood unions – and even if the law were not framed in such a way, we live in a common law jurisdiction which would permit the judiciary to impute gender neutrality even if this was not evident in statute.

    As for spouses not being able to give evidence against their partner, I’m pretty sure that went by the wayside a good few years ago.

    From a purely legal perspective marriage is a contract in law and, like any other contract, subject to a number of key common law principles not least that of ‘good faith’. A ‘marriage of convenience’ is a legal nonsense and will cut no ice whatsoever with a court if the court is satisfied that the marriage was not entered into in good faith, so your fears of a ‘litany of woe’ are entirely unfounded.

    If there’s one thing that the common law is good at, it’s dealing with unforeseen, unexpected, and unintended consequences.

  21. UKL:

    Thanks for that. I knew the old rules about spousal evidence had gone, just forgot that it was PACE where the change was made.

  22. @ Dave

    “And there we come to the root of the whole problem: what damn business of the government’s is it who I shack up with?”

    The correct answer, of course, is none.

    However, should you decide that you want tax perks, or some other kind of legal ‘support’ for whatever your relationship is then it becomes the business of the government.

    So Tim is right.. there should be a state-recognised agreement which any consenting adults can enter into. That’s the only thing that has any legal force… and whatever you want to say in front of your favourite imaginary sky person is your own business.

    The state contract can be restricted so that a person may only enter into one at a time. Feel free to marry as many people as you please.. but the tax relief is a one-spouse-only deal. That’s, pretty much, the only restriction I’d want. If brother and sister want to ‘contract’, for tax or other reasons, then so what?

    The discussions above mainly highlight what a complete mess the law is in. Let’s not have *anything* in law which seeks to define whether consenting peoples are ‘doing it’ or not. Still, if in any doubt, consult the following:

    http://www.thefrisky.com/2011-11-14/flowchart-am-i-having-sex/

  23. Oh, forgot to say that ‘unreasonable behaviour’ is apparently the most commonly cited ground for divorce. So the definition of adultery is becoming irrelevant.

  24. The discussions above mainly highlight what a complete mess the law is in.

    I don’t think that’s true. I think some people’s understanding of the law is a mess.

  25. TTG>

    “However, should you decide that you want tax perks, or some other kind of legal ‘support’ for whatever your relationship is then it becomes the business of the government.”

    Well, quite. But there aren’t any remaining tax advantages to being married, are there? (Inheritance tax, of course, but no more/less tax on the living as far as I know.) Next of kin presumption exists, but that can be overridden with a simple document.

    As far as I can see, we’ve pretty much entirely got rid of subsidies and privileges for married couples – so let’s go the whole hog and get the government’s sticky nose out altogether.

    “Feel free to marry as many people as you please.. but the tax relief is a one-spouse-only deal. That’s, pretty much, the only restriction I’d want.”

    Why? What’s the justification for the initial subsidy? Does it apply more or less to multi-partner families?

  26. Isn’t the point about spouses giving evidence not that they can’t but that the prosecutors can’t compel them to?

  27. @ Dave

    Whilst I am one of those who thinks IHT is a fab tax, and there should be more of it.. I’m not going so far as to label the lack of it as a ‘subsidy’. That be Murphytalk.

    I guess the rationale behind it is that the assets are jointly owned by the two spouses, and when one shuffles off we, don’t tax the other on their half. It seems fair enough to me.

    If you allow people in ‘multi partner’ relationships to have this exemption, then anyone can enter into the deal with anyone else.. I could enter into civil partnerships with all of the beneficiaries of my will so as to avoid any IHT (leaving aside that it’s my intention to be heavily in debt when I die).

    If you would just scrap all of the legal impacts of ‘marriage’ then, indeed, feel free to take the government out of the picture entirely. But as it stands, IHT is still a thing (and always will be), and are there not other occasions wherby the existance of the contract of marriage/union has some relevance? Such as joint borrowing and suchlike? You could always replicate that with other agreements – but when you have a ‘contract’ that most of the population will enter into at some point, why not have a standard and universally recognised version of it?

  28. Adultery is a red herring – given that unreasonable behaviour covers any relevent acts in any case.

    Consummation does require a little thought regarding the usefulness and desirability of being able to annul due to lack of consummation but is hardly an insurmountable issue.

    For example, you could leave the law on consummation as it is quite happily and allow gay marriage. A party who marries knowing that s/he is incapable of consummating the marriage cannot rely on his/her own incapacity in a petition for annulment (Harthan v Harthan [1948] 2 All ER 639, CA).

    All you need, therefore, is a one line in the statute to confirm this is the position for gay marriages where, generally, both parties would be aware at the time of the marriage that it is impossible to consummate it.

    The issue of lack of consummation would thus only be relevant for gay marriage if, say, a man marries somebody whom he believes to be a woman but, upon marriage, finds out is another man. At present, such a marriage is void from the start. If you can marry somebody of the same sex, you’d want some way of making it voidable to avoid embarrassing situations.

  29. UKL @ 4:

    Asa you show, the grounds for ending a marriage and a civil partnership are currently different, and introducing SSM is not going to change that, so SSM and heterosexual marriage will be not be ‘equal’ from the start.

    Similarly, the criterion of “unreasonable behaviour” will not be wholly identical for SSM and heterosexual marriage because of the greater difficulty of determining exactly what consitutes being “sexually unfaithful” in a same-sex marriage.

    Accordingly, I cannot see the advantage in legislating for SSM when we already have civil partnerships.

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  31. Unity – you are wrong about marriages of convenience. It matters not a whit whether parties enter into it in good faith, provided they consent to it. and that the formalities are complied with. Private motives and misgivings are irrelevent. This has been held by the highest court in the land on numerous occasions.

  32. theophrastus,

    Similarly, the criterion of “unreasonable behaviour” will not be wholly identical for SSM and heterosexual marriage because of the greater difficulty of determining exactly what consitutes being “sexually unfaithful” in a same-sex marriage.

    In what way is it more difficult?

  33. UKL @ 35:

    “In what way is it more difficult?”

    Because of the variety of homosexual practices.

  34. Given your vagueness, I can only guess that you’re assuming things about what homosexual couples get up to, as well as assuming what heterosexual couples don’t get up to.

    ISTM no more difficult for Joe to claim Jim was unfaithful than it is for Jack to claim Jill was unfaithful. If there is an understanding between the spouses about what constitutes unfaithfulness, and a spouse does something that constitutes unfaithfulness, then that could constitute unreasonable behaviour.

  35. @Theophrastus

    What can a gay couple do that a young lady and I can’t do? Other than symmetrical 69s?

    Variety of homosexual practices indeed…

  36. TTG>

    Well, personally I’d say that any ‘marriage’ in which one partner retains their own property rather than both/all partners holding it in common completely fails to be what I’d call a real marriage. That’s completely subjective, of course, but I can’t imagine marrying someone you didn’t trust enough to share your life with in every way. Of course, that’s a good example of why marriage should be up to the individual to define.

    That aside, what’s really the thing you’re trying to subsidise? I’d wager it’s not marriage, but something like cohabitation. In which case, either the tax break is a good thing, or it’s not, regardless of the number of people cohabiting – unless, for some unlikely reason, the benefit we’re trying to encourage ends at two cohabitees.

    (That, incidentally, would deal with your objection – you could make an inheritance-tax-exempt bequest to anyone you could stand to live with long term.)

    “but when you have a ‘contract’ that most of the population will enter into at some point, why not have a standard and universally recognised version of it?”

    No reason whatsoever why the government shouldn’t provide a free standard text for such things. If you want to sign a next-of-kin agreement, you’d be able to download the form and fill it out. Similarly for a commitment to raise children together, or to a monogamous relationship, or whatever else many people feel they want a contract for.

  37. Oxonymous>

    “What can a gay couple do that a young lady and I can’t do? Other than symmetrical 69s?”

    Actually, 69 doesn’t work properly for two men in most cases. The angles are all wrong.

  38. Other John B: infertile/menopausal/sterilised people of opposite sexes still aren’t allowed to marry if they’re blood relatives, so why on earth would/should same-sex marriage be any different?

    Dave: for some reason I was picturing two ladies (I’m told this works acceptably).

  39. UKL @ 37:

    “I can only guess that you’re assuming things about what homosexual couples get up to, as well as assuming what heterosexual couples don’t get up to.”

    All I’m assuming is that, for obvious anatomical reasons, non-penetrative sex is more common among gays and lesbians than it is among heterosexuals. This can make infidelity harder to determine.

    “ISTM no more difficult for Joe to claim Jim was unfaithful than it is for Jack to claim Jill was unfaithful.”

    In Jack and Jill’s case, there are conventions, some consensus and case law about what would constitute infidelity. In Jack and Joe’s and Jill and Jane’s cases, there is much less to go on.

    “If there is an understanding between the spouses about what constitutes unfaithfulness, and a spouse does something that constitutes unfaithfulness, then that could constitute unreasonable behaviour.”

    But that’s a big ‘if’! Even in heterosexual marriages, where the “understanding” is often disputed; and adjudications are usually made with implicit reference to existing social conventions. In lesbian or gay marriages, it would be harder to determine what constituted infidelity or unreasonable (sexual) behaviour because there are few if any publicly acknowledged conventions.

    Essentially, this is why adultery is not a reason for ending a civil partnership. And the same will be true of SSM. So SSM will always be significantly different to heterosexual marriage. In which case why not just leave things as they are?

  40. In practice, it’s easier to get a divorce on grounds of unreasonable behaviour (about 48% of UK divorces) than adultery (about 16%). (The rest are mostly on grounds of separation.)

  41. theophrastus,

    All I’m assuming is that, for obvious anatomical reasons, non-penetrative sex is more common among gays and lesbians than it is among heterosexuals. This can make infidelity harder to determine.

    It’s not at all obvious that “this can make infidelity harder to determine” logically follows.

    But that’s a big ‘if’! Even in heterosexual marriages, where the “understanding” is often disputed; and adjudications are usually made with implicit reference to existing social conventions. In lesbian or gay marriages, it would be harder to determine what constituted infidelity or unreasonable (sexual) behaviour because there are few if any publicly acknowledged conventions.

    If the couple have an understanding that neither party is to go outside the couple for sex – which is the convention among most couples, so far as I know – if one of them does go outside for sex then he or she has been unfaithful. It doesn’t matter what sex or sexuality any of the participants are.

    Surely everyone, even the senior Tories who tried to wreck the Civil Partnerships Bills, understands what a couple is. It’s weird that some people think this is chucked out the window just because the people involved are homosexual. Perhaps they have read too many cottaging stories in the Daily Mail.

    If there is an unconventional couple, e.g. one that invites others to their bed but considers it cheating if both spouses aren’t present, the couple being homosexual or heterosexual wouldn’t make a difference to the complexity of the case, surely.

    In which case why not just leave things as they are?

    Because homosexuals want to marry.

  42. UKL:

    “It’s not at all obvious that “this can make infidelity harder to determine” logically follows.”

    The inference is an inductive and empirical one, not one of logical entailment.

    And why do you think adultery is not grounds for dissolving a civil partnership? Apparently, because it is harder to prove in same-sex relationships.

    For exactly the same reasons, unreasonable sexual behaviour is harder to establish in same-sex relationships.

    So from the start, SSM will have different dissolution criteria to heterosexual marriage.

    Bolting-on SSM to existing marital law creates this problem. Making civil partnerships the standard for all – and marriage a religious non-legal ceremony – would be preferable, surely.

  43. theophrastus,

    And why do you think adultery is not grounds for dissolving a civil partnership? Apparently, because it is harder to prove in same-sex relationships.

    As I said earlier, adultery is a legal term that relates to a man and a woman having sex. A wife can’t claim her husband committed adultery if he had sex with a man. Likewise, a husband could not file on the grounds of adultery if his wife had sex with a woman.

  44. Well, personally I’d say that any ‘marriage’ in which one partner retains their own property rather than both/all partners holding it in common completely fails to be what I’d call a real marriage.

    A situation that comes to mind is where one partner is a director, and the other half wishes to protect some of their assets from personal liability.

    Or one partner receives a severe brain injury/develops dementia and is no longer capable of making rational financial decisions, and the other partner does not wish to divorce them, nor wishes to see their money wasted away.

  45. Tracy>

    Surely the whole point of your first scenario is that in fact the partners trust each other enough that the commonly-held property can be placed (as a legal fiction) in the ownership of just one?

    In your second scenario, if one partner is no longer legally competent, the other partner (as their next of kin) would (almost certainly) be the competent adult for all purposes – whether that’s consenting to medical treatment, or making investments. (I’m assuming there that in a genuine, loving relationship, there would be no need to appoint outside trustees.)

    Anyway, the point I think I was making there is that the things that to me seem to be important in a marriage are not things which the law sees as important, and, conversely, the things the law sees as important, I do not. I know of lots of legally married couples whom I wouldn’t consider to have a real marriage, and many (legally) unmarried couples who are what I would consider to be married despite never having signed any papers to gain government approval.

    I have no desire to impose my views on marriage on anyone else, but nor do I expect to have their views imposed on me. Marriage is no more a matter for legislation than taste is.

  46. UKLiberty>

    We’re debating a change in the law, so whilst the legal definition is relevant, it’s not the end of the story. It’s interesting just how many different definitions of adultery are out there – for example, under Jewish law, intercourse between a married man and an unmarried woman is not adultery, but some other crime.

  47. UKL:

    “As I said earlier, adultery is a legal term that relates to a man and a woman having sex. A wife can’t claim her husband committed adultery if he had sex with a man. Likewise, a husband could not file on the grounds of adultery if his wife had sex with a woman.”

    Yes. But that does not answer my point, because if we can change the definition of ‘marriage’ to include same-sex relationships, we can change the definition of ‘adultery’ to include same-sex relationships. And why wasn’t that done with civil partnerships? Because, apparently, those who drafted the legislation thought it harder to prove and define in same-sex relationships.

  48. Dave, good point on the difference between legally and emotionally.

    When it comes to the law, marriage is mostly about what happens when a relationship ends (by divorce/abandonment or death), or if there’s a quarrel about whether the marriage ever existed in the first place. If two people are happily living together and sharing their property they don’t generally need the law to intervene. (There are some details of tax laws, eg hiring your husband as a secretary in your business and paying him a high salary looks more like an attempt to avoid income tax, than hiring a total stranger and paying them a high salary).

  49. “When it comes to the law, marriage is mostly about what happens when a relationship ends (by divorce/abandonment or death), or if there’s a quarrel about whether the marriage ever existed in the first place.”

    Yes. But why is marriage different to any other form of contract such that two (or more) consenting and competent parties cannot enter into it without governmental approval?

  50. Theophrastus>

    “And why wasn’t that done with civil partnerships? Because, apparently, those who drafted the legislation thought it harder to prove and define in same-sex relationships.”

    There doesn’t appear to be a logical link there. It’s perfectly possible that it was for some other reason. I’d go for incompetence, myself, given that it’s Blair-era legislation, and that bad drafting is the hallmark of his legislation.

  51. theophrastus,

    Yes. But that does not answer my point, because if we can change the definition of ‘marriage’ to include same-sex relationships, we can change the definition of ‘adultery’ to include same-sex relationships. And why wasn’t that done with civil partnerships? Because, apparently, those who drafted the legislation thought it harder to prove and define in same-sex relationships.

    You keep saying so, but you haven’t provided any evidence. Instead of repeating yourself, why don’t you attempt to answer my point?

    I’ll spell it out: why is it more difficult for a lesbian to prove her partner had sex with a man than it is for a husband to prove his wife had sex with another man?

    Dave,

    Yes. But why is marriage different to any other form of contract such that two (or more) consenting and competent parties cannot enter into it without governmental approval?

    1. Because marriage brings with it rights and responsibilities in which the government (and society, I suppose) has an interest.

    2. Absent such, there would remain many people who think they have a right to interfere with what consenting adults get up to.

  52. UKL>

    1) Seriously? What are those ‘interests’ that society has in myself and my wife? Other than prurience, of course.

    2) Many people do think such a thing. Surely in the absence of government interference, the presumption of non-interference would be stronger?

    Is the ‘UKLiberty’ tag meant to be ironic?

  53. Dave,

    I think you’ve assumed something that isn’t in evidence. I’d like people to get out of the way of consenting adults. Hope that clears things up.

  54. UKL:

    “You keep saying so, but you haven’t provided any evidence”

    Over the last few months, there have been several press reports about the difficulties faced by those drafting the legislation, notably in The Sunday Times and subsequently repeated elsewhere:.

    http://www.guardian.co.uk/society/2012/dec/10/legal-definition-consummation-gay-marriage

    http://www.dailymail.co.uk/news/article-2268689/Concept-adultery-abolished-law-grounds-divorce-wake-Government-s-plans-gay-marriage.html

    “why is it more difficult for a lesbian to prove her partner had sex with a man than it is for a husband to prove his wife had sex with another man?”

    The difficulty is not in proving that the act occurred but in whether it is unreasonable (sexual) behaviour , particularly if (for example) the lesbians themselves do not have penetrative sex of any kind.

  55. Those articles aren’t evidence that it’s difficult to apply adultery to same-sex relationships, they are merely re-stating that it’s difficult. The Guardian even says so and why:

    The search for a definition of consummation and adultery – neither of which are precisely formulated in the Matrimonial Causes Act 1973 – has been dismissed by equality activists as an irrelevance.

    But church groups and Conservative MPs have focused on the issue in their opposition to gay marriage.

    It is as Unity said: an inconsequential technical argument in the hope of putting up a roadblock. Adultery has a very specific meaning. A husband being given blowjobs by his secretary, male or female, hasn’t committed adultery. If “couple” is as commonly understood (don’t have sex with someone else) there is no difference between couple A and couple B, whether A or B are heterosexual or homosexual. If they do have sex with someone else, that’s unreasonable, who cares what the definition of adultery is, apart from Tebbit et al?

    The Guardian article is old news. The Government has since (later that month, I think) decided to leave the definition of adultery as-is but allow same-sex married couples (but not civil partnership couples) to cite it as grounds for divorce.

    The difficulty is not in proving that the act occurred but in whether it is unreasonable (sexual) behaviour , particularly if (for example) the lesbians themselves do not have penetrative sex of any kind.

    And so we return to @35. Why wouldn’t it be unreasonable for one of them to have sex outside the couple, if they have the same understanding between them about their marriage / civil partnership as a ‘conventional’ husband and wife?

    We’re going around in circles.

  56. I still haven’t grasped what the problem is supposed to be. Allow people of the same sex to get married, leave the rules about adultery and consummation as they are, and let our wise judges develop the rules on unreasonable behaviour, as they have done for opposite sex marriages.

  57. The problem is supposed to be that same-sex couples only have penis-in-vagina sex, until one or the other cheats, at which point they have penis-in-vagina sex with somebody else.

    Meanwhile, filthy queers stick their penises in places that we can’t even imagine and/or use their vaginas in terrifying and wrong fashions.

    This is also why anti-SSM types tend to have an obsession with men having anal sex with each other that tend towards the prurient and pathological, whilst being in total denial of the concept that a woman could possibly want such a thing.

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