There has been a huge amount of discussion around the issue of same sex marriage recently and following voting in the House of Lords, same sex marriage has been allowed in England and Wales for the first time. Many different voices and opinions have been heard on the subject, from MPs to church leaders and following the yes vote, supporters have had cause for huge celebration, but what does this mean in legal terms, and how will it change the legal landscape?

As the legislation moves slowly closer, the legal issues are quite far reaching and the crux of the issue centres around the term ‘marriage’. The new legislation is seeking to amend the term marriage to include same sex couples and this will have a number of consequences.

How Will Same Sex Marriage Fit With Existing Adultery Laws?

Because the existing laws around marriage and divorce are based on a union between a man and a woman, this does cause legal issues. When a couple decides to divorce, in order to obtain the divorce they have to meet one of five criteria, and one of which is adultery. The issue with this is that in law, adultery is classified as being a husband or wife having a sexual relationship outside of their marriage with someone of the opposite sex. This clearly would not apply in a same sex relationship, so would a same sex couple looking for a divorce not be able to use adultery as a reason for divorce, or will adultery be redefined to include same sex relationships outside of marriage?

Another stumbling block for the new legislation is annulment. A marriage can be annulled if it is not consummated. However, consummation of a marriage is actually defined as a sexual relationship between a man and a woman. Unless the legal definition is changed to incorporate this new legislation, a same sex couple will be unable to use annulment to end their marriage.

As it stands, the existing laws clearly do not fit in with the new legislation on same sex marriage so it will be interesting to see what, if anything the government decides to do. Perhaps a new ‘no fault’ divorce will be developed to avoid any amendments and to ensure that there are no exclusions in same sex marriages.

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