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Some things don’t feel fair

Many years ago – no, make that many decades ago – I used to be a lawyer before I moved on to other things. As a result, although I retain a working understanding of the basic principles involved in areas of the law that I formerly practised in, I am more than prepared to declare upfront that my knowledge and understanding of the law as it stands in 2016 is at best sketchy and – in fields that I never practised in – effectively non-existent.

That said, I was intrigued by a media report this week that Sarah Wilson, a rugby league player’s former wife, was complaining that in law (by definition) ‘adultery’ could only take place between people of different sexes.

Her specific position was that not long ago her husband had come out as gay and she was objecting on the perhaps understandable (or logical) grounds that if he were to have sex (or an affair) with a man – as regards his marriage – it should be treated as being no different from if he had similar with another woman.

See here for a link to the story as it appeared on the website of the – DAILY MAIL

Despite my admitted distance from the law as it currently stands, it seems to me that this lady has failed to appreciate the fundamental changes brought about in England & Wales by the Divorce Reform Act of 1969.

To that point, there was a limit series of grounds – some which necessarily involved fault on the part of one or the other – upon which either men or women could petition for divorce.

Where one of the said ‘faults’ was involved, it was a legal requirement first that the fault being specified had to be proved by the petitioning individual and that secondly the court had to be satisfied that the marriage had irretrievably broken down.

This sometimes led to absurdities such as either a husband or wife (having together agreed to divorce) deliberately going off to ‘spend the night’ innocently with an unspecified person of the opposite sex in a hotel, just so that they could later provide sufficient ‘evidence’ to satisfy the court that adultery had actually taken place – even if de facto it never had!

The 1969 Divorce Reform Act made a seismic change to the law in the sense that it completely removed the ‘fault’ requirement aspect of divorce. Under it the sole grounds for divorce became ‘irretrievable breakdown’ – and the former ‘faults’ (that were previously grounds for divorce) simply became examples of behaviour that could signify an irretrievable breakdown.

Hopefully now you can see where I’m coming from …

The error that many people (of all genders, I was going to write of ‘both genders’ but in this PC-full 21st Century we must allow for more than that) make is to hark back to the days when, for example, ‘adultery’ was generally regarded as a heinous betrayal of the sanctity of a marital relationship.

divorce2When your husband – or indeed your wife – has been off ‘playing away’ (be it on a one-off of serial basis) you may feel way more than just hurt. You may feel that your world has fallen apart. You may feel vengeful enough to go out and have sex with someone yourself just to pay them back. Or you may just feel cold fury and thence a lasting determination to take your ‘other half’ for everything you can as you divorce and discard them from your life.

(After all, you might reason, they have betrayed everything that the pair of you had built together).

But the law is not quite like that – even if some feel that it ought to be.

As previously stated, all the law is concerned with is ‘has the marriage irretrievably broken down?

It doesn’t matter what the reason is, or whether there is any fault attributable to anybody in respect of that reason. It’s just straightforwardly and simply whether or not the marital relationship has irretrievably broken down.

What Sarah Wilson – the ex-wife of Keegan Hirst the rugby league player – needs to appreciate is that ‘irretrievable breakdown’ is the only thing that matters.

Whether the ‘irretrievable breakdown’ concerned was caused by her ex-husband committing adultery, or having sex with a man, or just because perhaps he never ate his meals with her, but instead preferred to consume TV dinners whilst watching rugby league games on a 120” television from his drawing room sofa, doesn’t actually matter in law.

She appears not only to retain the ‘traditionalist’ view that ‘fault’ and ‘blame’ very much attach themselves to adultery, but that because in law it seems that a married man having sex with another man doesn’t ‘qualify’ as adultery, it therefore fails to attract similar society disapproval.

This misunderstanding that ‘fault’ ought to matter in marriage break-ups and/or divorces is one of the reason such processes can become acrimonious. The not-at-fault (aggrieved) party feels that his or her spouse was ‘at fault’ and therefore should rightfully get the rougher end of any financial (or other) settlement. They can then get very frustrated or exercised indeed when they realise that the law sees things quite differently.

To repeat, as a matter of law, in carving up the assets of a marriage many considerations can come into the equation, but who was supposedly at fault in causing the necessary ‘irretrievable breakdown’ isn’t one of them.

About Gerald Ingolby

Formerly a consumer journalist on radio and television, in 2002 Gerald published a thriller novel featuring a campaigning editor who was wrongly accused and jailed for fraud. He now runs a website devoted to consumer news. More Posts