Saturday, 26 January 2013

Same sex marriages can be ‘open’ marriages because ‘adultery’ will not legally exist

It has long been suspected that same sex marriage is a legal can of worms.

But David Cameron's new proposed same sex marriage law may change the nature of marriage beyond even his wildest imaginings.

Currently marriage and same sex civil partnerships are dealt with under two different types of legislation.

The formalities of marriage are predominantly governed by the Marriage Act 1949, the Marriage Act 1983 and the Marriage (Registrar General's Licence) Act 1970.

By contrast the Civil Partnership Act 2004 (CPA 2004) defines civil partnership as a formal legal relationship between two people of the same sex but gives same-sex couples virtually all of the rights and privileges of married couples.

The President of the Family Division has even described civil partnerships as conferring ‘the benefits of marriage in all but name’.

There are however some differences in English law, between a marriage and a civil partnership, but these differences focus not on the rights they confer, but on the genders of the partners, the procedure and place where the partnership is formed, and the roles of consummation and adultery in making and breaking the relationship.

These differences are there because they are different types of relationship. It is not ‘one size fits all’.

Currently same-sex couples cannot get married and opposite-sex couples cannot form civil partnerships.

One of the most intriguing mysteries about David Cameron’s plans to redefine marriage to include same sex couples was always therefore going to be how he would deal with ‘consummation’ and ‘adultery’.

At present a marriage can be declared void if it is not ‘consummated’. And if necessary, whether consummation has been achieved needs to be determined by medical examination. But how is a lesbian or gay marriage to be consummated? Interesting question!

In the same way adultery is grounds for divorce, but the legal definition of adultery is based on (how does one say this politely?) a certain kind of genital contact. So how exactly do lesbian or gay couples commit adultery? Or are the consummation and adultery definitions just to be dropped?

This is important because when a marriage breaks down, and the bickering over who has a right to what begins (in terms of possessions, money, children etc), then the outcome could depend, at least in part, on whether or not the marriage has been consummated and whether or not there has been adultery.

So how would Cameron deal with this problem?

Well now that the Marriage (Same Sex Couples) Bill has been published we finally know.

There will be no consummation or adultery for same sex couples.

The explanatory notes are more explicit than the Bill itself on this point with respect to consummation:

‘108. Paragraph 4 [of Part 3] amends section 12 of the Matrimonial Causes Act. The effect of this amendment is that non-consummation (either by reason of incapacity or wilful refusal) cannot be a ground on which a marriage is voidable for a same sex couple. The provisions for opposite sex couples remain unaltered.’

And adultery? Well it will simply not exist for same sex couples.

Under the Government's draft Bill only infidelity between a man and a woman constitutes adultery.

So while the law would give same-sex couples the right to marry, they would not be able to divorce their partner on the basis of adultery if their spouse went on to be unfaithful - unless they cheated with somebody of the opposite sex.

It also states that a straight person who discovered their husband or wife had a lover of the same-sex could not accuse their unfaithful partner of adultery in a divorce court.

So what does this mean?

First that this supposed equal marriage for same sex couples is not equal at all because in traditional marriage there is consummation and adultery and in same sex marriage there is not.

Second, this will mean that as soon as the ink is dry on the new law – assuming it passes – it will be ripe for attacks by people who might want, for whatever reason, to abolish consummation and adultery for traditional marriage as well on grounds of equality.

Imagine the following scenario. A man marries a wealthy heiress with no intention to consummate – she dies and the man claims his inheritance. The Estate argues that the heiress was in the process of getting an annulment for non-consummation. The man says he is being discriminated against because he is a heterosexual. If he was gay there is no requirement for consummation – what about his human rights?

According to the Daily Mail, lawyers and MPs have already argued that the distinction over adultery - which arose after Government legal experts failed to agree on what constitutes sex between same-sex couples - would cause confusion.

They warned it would create inequality between heterosexual and homosexual married couples who found themselves in the divorce courts, and said it would likely result in adultery being abolished altogether as a grounds for divorce.

Third, it means that same-sex marriages will, in effect, be legal open marriages. As long as both partners consent in a same sex marriage, each of them can have as many sexual partners as they choose, as long as they are all of the same sex, without actually ever committing adultery. This may actually suit some couples but it completely alters the meaning of marriage which is based on sexual faithfulness.

In fact since one is married without consummation, the situation might arise where a married member of a same sex couple could have sex with any number of people he is not married to (provided they are of the same sex) without ever committing adultery (because it doesn’t exist for same sex marriages) and without ever actually having sex with his or her married partner.

So for same sex couples, sex will be legally uncoupled from marriage altogether. And if there is a legal challenge on the basis of equality, the same thing may follow for traditional marriage.

I wonder if anyone has yet explained this to David Cameron?

I suspect he may be in for a few extra late night briefing before second reading on 5 February.

15 comments:

  1. If same-sex couples can't by definition commit adultery, this is a tacit logical admission that they can't by admission be faithful and truly monogamous either. Thus they earn the reputation of being promiscuous fornicators. Thus their 'marriage' will be seen as counterfeit.
    If men can't be divorced by their wives on the grounds of homosexual acting out, they can't be divorced on the grounds of cross-dressing and visiting male or transsexual prostitutes either.
    Bring on Biblical teaching based on Hosea and Ezekiel 16, I say, where unfaithful Israel is compared to a violent woman who chose prostitution with foreign army officers. That's the real basis of Jesus' forgiveness of the Samaritan Woman and the adulterous woman in John's Gospel. Today's evangelical churches are too wimply to teach at this level.

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  2. Consummation: the name pertains to a physically real act. As the act existed before the name, there can only be one correct definition of the act. Consummation is not physically possible between any combination of humans other than one man and one woman. The government is therefore correct to not define it in any other way.

    Adultery: the act of adultery is the same physical act as consummation. One starts a marriage, and the other gives cause to end a marriage. If, say, a woman is "married" to another woman, that first woman can only commit adultery by sleeping with a man who is married to a woman. In this case, it is only the man's wife who can divorce on grounds of adultery. The woman's "wife" cannot, because she is not married to her "wife". They are not married because...they have not (and cannot) consummate their relationship. The government is therefore correct to not define adultery in any other way.

    Once we start from the correct base (that a marriage is only physically possible between one man and one woman) most of the surrounding issues explain themselves. We get into trouble as soon as we concece the principle that a same-sex marriage can physically exist.

    All of which shows an interesting point: the Law knows exactly what marriage is, knows marriage is physically impossible between two people of the same sex (thereby knowing that same-sex consummation and adultery are physically impossible) yet is redefining marriage anyway. They know what they are doing.

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  3. As a slight aside: marriage gives the legal right to found a family (where rights are protections, not permissions). If, say, Jane is "married" to Jenny, those two women have the right to do the physically impossible - have a child. Procreation is only possible because of sexual difference. Jane and Jenny's relationship does not contain sexual difference. Q: how does Jane give her "wife" the gift of motherhood? A: through sexual difference with a man. This is not adultery (see above). Instead, sex outside of their "marriage" becomes a virtue - their way of starting a family.

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  4. You're right that homosexual couples can only have children through fornication. Everything they do is counterfeit. This is the message that the churches need to get across. This includes the way that transgender intersects with the whole thing.

    I just looked at Schedule 5 of the Same-Sex Marriage Bill, and it is really a homewrecker's and marriage wrecker's bill as it pushes the existing boundaries of applying for 'gender recognition' as a member of the opposite sex/gender. Now a married person is allowed to apply for gender recognition, and can gain an interim certificate even if they are still married. The bill speaks of the other spouse giving consent(or not) to 'gender recognition', i.e. self-identification as a member of the opposite sex to the reality of the self-identified transgender person. This is subtly manipulative, because in reality, most spouses, nearly all of whom are wives, NEVER consent to their husbands identifying themselves as 'women' and divorce their husbands accordingly. The Bill introduces the Lie that the normal, heterosexual spouse can choose to consent or not to 'gender recognition' and 'reassignment'. Why would they want to do that? Most heterosexual women wouldn't. It's the bisexual women who are more likely to do that, being already more ambivalent about themselves, and it is not a secret that many lesbians really struggle with partners who become post-operative female-to-male transsexuals. Many of those relationships, predictably, break down.

    Funny how the transgender dimension to the Same-Sex Marriage Bill only shores up the reality that the whole idea of 'same-sex marriage' is a counterfeit, as it allows homosexuals to 'change sex/gender' and so impersonate members of the opposite sex, thus making up the counterfeit impersonation of a real marriage.

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  5. Hi anonymous. Without meaning to hijack Peter's thread, can i ask you whether you have any particular personal involvement in this issue? Are you a campaigner, etc? The reason i ask is that you seem to have zeroed in on the one thing that is going largely unaddressed: gender recognition.

    Pick the sense out of this: Jane "marries" Jenny. Jenny becomes the "mother" of Jane's child. Jenny becomes a "man". Jenny is then the "Father" of Jane's child. It becomes legally possible for one person, in the course of one lifetime, to be both mother and father to the same child.

    I happen to be the person who knows why marriage is being redefined, and i will be sharing the reason with all of you. Soon haha

    gentlemind

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  6. gentlemind,
    there are several reasons that spring to mind as to why governments around the world's wealthy countries want to redefine marriage. I've seen what you've written elsewhere, and I agree, but there's more to it than either you realise or let on.
    These factors have been involved in creating problems for ordinary folks for centuries. I'll leave it there.

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  7. It's letting on, not not realising. I am alluding to a specific legal reason why marriage has to be redefined. I expect you are refering to spiritual matters. Given that the legal world is not the real world, spiritual attacks and legal attacks can be seen as being one and the same.

    gentlemind@hotmail.co.uk

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  8. Gentle mind please do carry on ......

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  9. Gentlemind,

    I'd be very interested to know what you mean by a legal reason for this change in the law. I blog here: http://thomasmoreinstitute.org.uk/blog/ and we've written a few posts on this topic which you may find interesting.

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  10. Facinating blog post, Peter. It really does throw up some very interesting (and bizarre) possibilities.

    However, I am curious as to why you seem to think non-consummation should be grounds for divorce. I am, of course, aware that it is legal grounds - but it shouldn't be moral grounds, should it? Marriage is based on committment - of course sex is a (very enjoyable) part of marriage, but there are people who cannot have sex, for a variety of reasons. Surely a lack of consummation should not be grounds for dissolution of the marriage?

    I have a good mate who's been happily married for 30 years - his wife suffers from medical problems, which sadly have meant non-consummation. He knew this might be a real possibility when he married her, and still chose to go through with it, because he loves her. He is as married as anyone else I know.

    I am interested to hear why you think this should be grounds for divorce. Some people consummate but are forced to stay celibate afterwards (again, for a great variety of legitimate reasons) - some folk stay celibate virtually life-long despite being married. If everyone who was unable to have sex divorced their partner, the divorce rate would go up astronomically!

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  11. This discussion seems almost laughably out of date.

    First, sex before marriage is the norm these days. In fact, it's so much the norm that quite a lot of people don't even bother with the marriage part. So the whole business of whether a marriage was "consummated" or not seems little more than quaint. I tend to agree with James above that marriage is a public statement of commitment to one another, not defined by whether flange A was ever inserted into socket B.

    Secondly, "adultery" is also the norm. I think if we knew how many married people have had sex with someone who isn't their spouse, we would be very surprised. However the law may define adultery, what is important is not the specifics of the sexual congress but the betrayal of the commitment and intimacy that marriage demands. So penetrative intercourse is unlawful adultery, but fellatio (in the eyes of the law) would be unremarkable? Sounds like nonsense to me. From my perspective they would be acts of equal magnitude. And therefore the notion that same-sex marriage would be de-facto "open" marriage, since the law doesn't recognise same-sex adultery, is utter nonsense.

    Thirdly, there are quite a lot of gay and lesbian people who want to choose one single life partner and spend their lives with that person. To me it doesn't matter whether it's one man and another man, one woman and another woman, or one woman and one man (there is, for me, no demonstrable difference between heterosexual love and homosexual love). What matters is that they make a public commitment, which they are expected to live up to in public and in private, and the emotional and physical grounds for dissolution of that contract are the same for everybody (if you do with somebody else what you should only do with your spouse, that's adultery enough for me). Therefore the legal grounds for dissolution of that contract should be the same for everybody, and the law needs to wake up and modernise its terms.

    Marriage isn't for everybody, gay or straight. For people who don't want it, good luck to them. For people who do want it (and the various tiny recognitions and advantages it may bring), good luck to them too, but they should be prepared to commit wholly to it and not treat it as some sort of empty formality.

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  12. rationality and truth is never all that fashinable. that we are our own masters goes back to Adam.

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  13. Oh hai Aidanodonnell!

    You seem to think that because something is 'the norm', it is therefore acceptable, or even right. By your reasoning, owning a slave would have been aokay because 'everybody was doing it', or ostracising Jews or Muslims or Christians was okay, because 'it was the norm'. A majority opinion does not form Truth. If you don't recognise the fact of objective truth, then nothing about the marriage debate will make much sense to you.

    'marriage is about commitment' - you sir, are partly correct! But marriage is about so much more than that! As the pro-marriage demonstrations in Paris showed, marriage is also about children. 'Difference is key to existence' was one of their slogans, and I thought it quite apt! Marriage must be about more than just 'commitment', or by that criteria polygamy and incest should also be legislated for.

    You're also oscillating between saying 'marriage is such an important thing - people should totally be able to marry someone of the same sex' and saying 'marriage is no big deal, because people commit adultery and it brings negligible benefits to the couple'. Which is it? Either it is a big deal, or it's not. I would emphatically say that marriage is a huge deal, but not necessarily because of 'commitment'. Children benefit the most from secure marriages (which is why it's so terribly sad that nowadays people don't keep their promises and so many marriages end in divorce. The effect this is having on children is *not* negligible, and can be seen in the school system every single day), and children also have a right to a mother AND a father.

    Yes, marriage is not for everybody...but living chastely (be it while married (because chastity doesn't actually mean no-sex-never-because-sex-is-bad, just for the record :D ) or single, or in a relationship) IS for us all! :)

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    1. You seem to think that because I describe something as "the norm" that I think it's "acceptable or even right". All I am saying is that most people seem to think it's acceptable at the moment. (Back when people kept slaves, most of them seemed to think it was OK too; nobody troubled themselves to ask the slaves, of course).

      My point is that, if you are going to cling to hopeless concepts like consummation or adultery, the law (as it stands) either needs to declare nearly everyone's behaviour unlawful, or give up and turn a blind eye (which is what it seems to be doing). As a reflection of what is currently happening, and a means of deciding what is and isn't lawful, the law is currently next to useless.

      Unfortunately I don't think there is such a thing as "objective truth". I suspect this is a point over which you and I will just have to disagree.

      I know plenty of heterosexual marriages which are childless; some by choice, others not. I don't think it makes those marriages invalid. And, to come back to the "norm", more children are now born to couples who are not married than to couples who are married. So once again, children and marriage are not necessarily connected in any meaningful way. I am not saying that's a good thing; but it is the way things currently are.

      I'm not oscillating in any way in my views. I think marriage is an extremely important thing (I happen to agree with your points about children and secure marriage). The fact that many people flout its rules is (IMHO) very disappointing. On the other side of the argument, many people here (including the OP), and even the law, seem to think that the model is one man marries one woman, "consummates", bears children, and doesn't commit "adultery" ever, and remains together until one of them dies. I think it is demonstrably true that comparatively few people succeed in this. FWIW, I think it would be better if more did.

      I think that a marriage can be valid and meaningful if no consummation takes place, if no children are produced, and even if the two partners are of the same sex. (I don't think there is any evidence that same-sex couples treat their vows or commitment any more cheaply than heterosexual couples do). I think that adultery can occur without penetrative intercourse needing to take place. But I think the same rules need to apply to everyone.

      The law needs to be able to decide: this type of behaviour is lawful, this other type of behaviour isn't lawful, and here are the definitions we use to rule on the difference. And at the moment, it absolutely cannot.

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