Written Question · S6W-20734 · Session 6
Whether it considers the definition of adultery to include homosexual relations outside of marriage for the purposes of divorce proceedings.
The question
To ask the Scottish Government whether it considers the definition of adultery to include homosexual relations outside of marriage for the purposes of divorce proceedings.
The answer
No. The Scottish Government understands that, for the purposes of the law of divorce, adultery is defined in the common law (case law) as voluntary heterosexual intercourse between a married person and a person who is not their spouse.
The issues relating to the legal definition of adultery were considered by the Scottish Government when the legislation introducing same sex marriage was prepared: Marriage and Civil Partnership Bill Policy Memorandum (paragraphs 127 to 143) .
The Marriage and Civil Partnership (Scotland) Act 2014 inserted section 1(3A) of the Divorce (Scotland) Act 1976 so that adultery has the same meaning for same sex marriages as for mixed sex marriages.
Our position remains unchanged: we have no plans to bring forward legislation to extend the definition of adultery.
A spouse seeking a divorce because of sexual infidelity which is not covered by the current legal definition of adultery can cite unreasonable behaviour or non-cohabitation to demonstrate the irretrievable breakdown of their marriage.
The issues relating to the legal definition of adultery were considered by the Scottish Government when the legislation introducing same sex marriage was prepared: Marriage and Civil Partnership Bill Policy Memorandum (paragraphs 127 to 143) .
The Marriage and Civil Partnership (Scotland) Act 2014 inserted section 1(3A) of the Divorce (Scotland) Act 1976 so that adultery has the same meaning for same sex marriages as for mixed sex marriages.
Our position remains unchanged: we have no plans to bring forward legislation to extend the definition of adultery.
A spouse seeking a divorce because of sexual infidelity which is not covered by the current legal definition of adultery can cite unreasonable behaviour or non-cohabitation to demonstrate the irretrievable breakdown of their marriage.
In the Official Report
No contribution in the Official Report cites S6W-20734 by reference.