Call for adultery to cover same-sex marriages

Akri Jones is calling for the definition to change so the divorce process is the same for all married couples. Picture: Phil Wilkinson

A Christian campaigner, Akri Jones, presented a petition to parliament that attempted to make the divorce process the same for married couples, regardless of whether they are homosexual or heterosexual.

As the law stands, committing adultery can be cited as proof that a marriage has irretrievably broken down. However, the legal definition of adultery refers specifically to sex between a man and a woman outside marriage.

Therefore under the Marriage and Civil Partnership Act (Scotland) 2014, a spouse in a same sex marriage could (like a spouse in an opposite sex marriage) raise an action for divorce because the other spouse in the marriage has committed adultery, provided the straying partner had sex with a person of the opposite sex.

It does not extend adultery in same sex marriages to cover sexual activity between people of the same sex.

Ms Jones’s petition called on Holyrood to “urge the Scottish Government to amend the current definition of adultery within legislation so that it is not restrictive to gender status”.

She called for the change at Holyrood’s Public Petitions Committee.

Ms Jones argued that under current legislation people in a same sex marriage who wish to separate after their partner has been unfaithful “will not be able to cite adultery as grounds for divorce”.

Ms Jones argued that the current situation was in breach of human rights and equality legislation.

The Free Church of Scotland has voiced concern that the petition could see adultery laws scrapped entirely.

Ms Jones, however, said that she did not want to see adultery laws abolished.

She said: “We are living in a world that needs to safeguard our morals more than ever”, adding that faithfulness in marriage was one of the most important aspects of that.

The former justice secretary Kenny MacAskill disagreed.

He argued that the whole concept of adultery is “passed its time” and should be abolished rather than extended to other relationships.

He said Ms Jones “has made her point” but her petition should be rejected on the grounds that the Scottish Government has no time to action a change in the law in the current parliament.

Mr MacAskill added: “I think we should just simply close the petition. I think the petitioner has made her point; I don’t necessarily agree with it.

“I do tend to agree with the position that, frankly, adultery has passed its time and divorce should be on the basis of irretrievable breakdown.

“But it does seem to me that we are clearly in a position where the government has no plans.

“We’ve had the programme for government. We’re in spring 2015, so the government is not going to be legislating on this or anything between now and the end of the parliamentary term 2016.

“It would be for an incoming administration, whoever that may be, to decide their priorities.

“Ultimately I think all of this is for the Scottish Law Commission, and I certainly know informally they don’t have any plans.”

MSPs agreed but advised Ms Jones that she may resubmit her petition after a year.

A Scottish Government spokeswoman said: “We have no intention of changing current divorce law and provisions in it relating to adultery.”