Marriage (Same Sex Couples) Bill

Debate between Lord Black of Brentwood and Baroness Stowell of Beeston

Monday 8th July 2013 Lords Chamber

[Baroness Stowell of Beeston]

My Lords, I am grateful to the noble and learned Baroness, Lady Butler-Sloss, for introducing her amendment and for ensuring that we are, again, post-watershed. I did not design it this way but, as someone who used to work at the BBC, I am always so much happier when I know that we are compliant with broadcasting regulations.

I will start by addressing one angle that underpins this amendment and the debate associated with it, and that is about fidelity. It was something to which my noble and learned friend Lord Mackay referred. I want to be absolutely clear that the Government recognise the importance that couples, whether opposite-sex or same-sex, attach to fidelity in their relationships. The seriousness and the intention of same-sex couples wishing to make a commitment to each other are no less serious than that of opposite-sex couples. There is no difference in the intensity of the commitment and fidelity is every bit as important for same-sex couples who wish to marry as it is for opposite-sex couples.

The provisions in the Bill do not, in any way, imply that fidelity will be less important in marriages of same-sex couples than it is in marriages of opposite-sex couples. It is important to make that point, not so much in relation to what the noble and learned Baroness said today, but certainly following up on the debate that we had in Committee, and the comments of my noble and learned friend Lord Mackay, lead me to make that clear.

It is important to remember that betrayal in close relationships can, unfortunately, take many forms. A partner can be unfaithful by sharing confidences and not necessarily by sharing a bed. I make that point because I think that the noble and learned Baroness, Lady Butler-Sloss, said in Committee, when she was moving her amendment, that for her the opposite of fidelity was adultery. However, I would argue that the opposite of fidelity is infidelity, and infidelity takes many forms; it is not necessarily about adultery via a sexual act. Her amendment, as we have heard, seeks to create a new fact for divorce to sit alongside the current fact of adultery in the Matrimonial Causes Act 1973. This new fact would apply to sexual activity, similar to adultery, of a married person with someone of the same sex outside the marriage, and it would apply to all marriages, whether of same-sex or opposite-sex couples.

The effect of this definition is not clear as we do not know what sexual acts would be covered by the amendment. That point was made by the noble Lord, Lord Pannick. It is worth reminding ourselves that the definition of adultery that exists in law now took decades to be defined through case law; it was not something that was established overnight. If we are to introduce something called “similar to adultery”, as the noble Lord, Lord Pannick, has said, this lack of clarity would mean that all married couples, whether same-sex or opposite-sex, would not be clear about the grounds on which they could obtain a divorce. Neither same-sex nor opposite-sex couples would benefit from the extended facts to constitute adultery inserted by this amendment.

The provisions of the Bill on adultery provide that the same long-standing definition of adultery, set out in case law, will apply to both opposite-sex and same-sex married couples. I would argue against what my noble friend Lady Berridge and others said, that actually the Bill creates some inequality by keeping the definition as it is. We are not introducing a new inequality; we are continuing as we are now.

Without getting too graphic, the definition of adultery is very specific and relates to a sexual act between a man and a woman which is not physically possible between two men or two women. That act has been established by case law over decades, and because of that, it is not something that can apply to relations between people of the same sex.

I was going to offer some explanation as to how the law on adultery works. Noble Lords have covered this very well in the contributions that have already been made, but if the House will indulge me, I think it is worth being specific about this because after we had the previous debate I talked to one of the policemen as I was leaving the building. He had been very amused by our debate that evening and seemed to think that off the back of it adultery would not necessarily apply any more and that people would not be able to divorce each other on those grounds. I explained to him how adultery works. As he found that so interesting, I thought I might do it for the benefit of noble Lords.

As the law stands, if I was married to George Clooney and he was to have a sexual affair with, say, the noble Baroness, Lady Thornton, that would be adultery. If I was married to George Clooney and Mr Clooney had sexual relations with the noble Lord, Lord Alli, that would not be adultery because he would not be able to do the sexual act which is very specifically defined in law. Should I wish to divorce Mr Clooney on those grounds, I would do so on the grounds of unreasonable behaviour. In future, if the noble Lord, Lord Alli, was to marry Mr Clooney, and Mr Clooney was to have an affair with me—and who would blame him in those circumstances?—that would be adultery and the noble Lord, Lord Alli, should he choose to, would be able to divorce Mr Clooney on those grounds. If the noble Lord, Lord Alli, were married to Mr Clooney and Mr Clooney had an affair with, say, my noble friend Lord Black of Brentwood—

[Lord Black of Brentwood]

Hear, hear!

[Baroness Stowell of Beeston]

That would not be adultery, but the noble Lord, Lord Alli, would be able to divorce Mr Clooney, should he choose to, on the grounds of unreasonable behaviour. The point I am making is that the arrangements relating to how adultery works will remain the same in the future as they are now.

When a marriage breaks down, it is a very serious matter and of huge regret. The number of divorces on the grounds of adultery is falling. The latest figures show that 18% of divorces are on the grounds of adultery. The figure has fallen quite rapidly over the past 10 years. Adultery is not the grounds on which most people seek to divorce one another. We hope that all marriages, whether they are between a couple of opposite sexes or the same sex will continue, and that they will be faithful and remain happy and contented. If that is not the case, we believe that the existing provisions are perfectly adequate for divorce to take place, and I therefore hope that the noble and learned Baroness will feel able to withdraw her amendment.