Written Question · S6W-23761 · Session 6
Further to the answer to question S6W-20734 by Siobhian Brown on 30 August 2023, what its position is on whether the same cited considerati…
The question
To ask the Scottish Government, further to the answer to question S6W-20734 by Siobhian Brown on 30 August 2023, what its position is on whether the same cited considerations for same-sex sexual infidelity being treated as unreasonable behaviour or non-cohabitation could also apply to opposite-sex adultery, and, if it considers this could be the case, what its position is on whether the existence of adultery as a grounds for divorce is redundant.
The answer
One of the ways in which irretrievable breakdown of a marriage is taken to be established in divorce actions is if since the date of the marriage the defender has behaved in such a way that the pursuer cannot reasonably be expected to cohabit with the defender. This can include sexual infidelity, both same sex and mixed sex.
Another way in which irretrievable breakdown can be established is if since the date of the marriage, the defender has committed adultery. The Scottish Government’s understanding is that adultery is defined in common law as meaning heterosexual sexual intercourse outside of marriage.
Issues on adultery in divorce law were considered when what became the Marriage and Civil Partnership (Scotland) Act 2014 was being prepared. As the last bullet point of paragraph 138 of the Policy Memorandum for the Bill which became the 2014 Act notes, it appears that for a small number of spouses it may be important to have the civil court find that the other spouse was adulterous.
The consultation planned for 2024 will, in relation to divorce and dissolution, cover court procedures rather than the grounds of divorce and dissolution.
Another way in which irretrievable breakdown can be established is if since the date of the marriage, the defender has committed adultery. The Scottish Government’s understanding is that adultery is defined in common law as meaning heterosexual sexual intercourse outside of marriage.
Issues on adultery in divorce law were considered when what became the Marriage and Civil Partnership (Scotland) Act 2014 was being prepared. As the last bullet point of paragraph 138 of the Policy Memorandum for the Bill which became the 2014 Act notes, it appears that for a small number of spouses it may be important to have the civil court find that the other spouse was adulterous.
The consultation planned for 2024 will, in relation to divorce and dissolution, cover court procedures rather than the grounds of divorce and dissolution.
In the Official Report
No contribution in the Official Report cites S6W-23761 by reference.