Gay marriage: divorces over adultery face legal challenge Jonathan West, head of family and marriage law at Prolegal, said he would welcome a test case to open the debate. He said it was likely that a man, for example, would claim in court that he cannot be divorced on the basis of adultery once the Bill, due in Parliament next year, is passed. "In my view it is discriminatory," he said. The test for discrimination is whether one section of society is treated differently from another. They are being treated differently. "If you had a heterosexual couple saying, "why am I being divorced on the basis of adultery when if I was gay that wouldn't happen?" I think that would be a fantastic test case. Whether it is successful at the moment I would currently doubt but these things happen in small steps. He said there was "a chance" that such a case would succeed, adding that he would welcome the discussion. "The end point should be that we allow everybody to choose the manner in which they get married," he said. Catherine Thomas, a director at the leading divorce law firm, Vardags, said ministers should have eliminated the discrepancy between same-sex and heterosexual divorces over adultery. "The idea that gay couples can have their relationships legitimised but they can't dissolve it if one sleeps with someone else is ridiculous," she said. I can certainly see a same-sex couple challenging it. It is discriminatory that opposite sex couples can commit adultery but same-sex couples can't. In most cases, women would opt for a divorce on the grounds of "unreasonable behaviour" if their unfaithful husbands refused to be divorced over adultery. However, a legal challenge to the different laws on adultery would be possible if someone "takes against" the discrimination "for political and moral reasons," she said. For some people, if they feel someone has committed adultery, it is very important for the marriage to be dissolved for that reason. Ministers are planning to create an "exception" in marriage law for same-sex couples and will not alter the definition of adultery. "We are proposing to maintain the current position with regards to adultery in marriage," the government's proposals state. This would mean anyone, including same-sex couples, could cite adultery to end their marriage if their partner's behaviour met the current legal definition. "In practice this would mean for a same-sex married couple that, where one partner had sexual intercourse (within the meaning of the law for these purposes) with someone of the opposite sex, the other partner could cite adultery as grounds for divorce," the government said. If the unfaithful partner's affair fell short of the current legal definition of adultery, they could still be divorced on the grounds of "unreasonable behaviour," as is the case with civil partnerships now. "We are proposing to create an exception for same-sex couples in a marriage, meaning that they would not be able cite non-consummation as a basis for annulling their marriage," the document states. Same-sex couples cannot currently annul their civil partnership on the basis of non-consummation. Opposite sex couples will continue to be able to annul their marriage on the grounds of non-consummation. By maintaining this position, we are not altering the legal position unnecessarily.