Same-sex divorce is on the rise, and it is likely to continue rising.
This is not unexpected. Same-sex divorce has only been possible since 2015, and the number of same-sex divorces is therefore unlikely to reach a settled peak for some time.
To give an idea, there were some 1,500 same-sex divorces in 2021, the most recent year for which figures are available. But if the divorce rate amongst same-sex couples is going to match that amongst opposite-sex couples (about 40%), then we can expect the number of same-sex divorces to increase significantly (there are about 7,000 same-sex marriages each year).
OK, so an increasing number of people are going to be going through a same-sex divorce. What do they need to know about how to go about it, and how things may differ compared to an opposite-sex divorce?
The simple answer is that things should be very similar for same-sex and opposite-sex divorces. But there are a couple of issues that could arise for same-sex divorces.
The procedure to obtain a same-sex divorce is exactly the same as for an opposite-sex divorce. One or both parties will need to file with the court a statement that the marriage has irretrievably broken down, and after 20 weeks have elapsed they can apply for the conditional divorce order. Six weeks after that, they can apply for the final divorce order.
But a divorce is not usually just about dissolving the marriage. Arrangements for children and finances may also have to be sorted out.
Again, the way these things are sorted out should be similar for same-sex and opposite-sex divorces.
However, there could be two particular issues.
Firstly, the same-sex couple may have had a child via a surrogacy arrangement, so that only one of them is a biological parent of the child, and this could lead to complications when the other party to the marriage seeks to have contact with the child after the separation.
This should not be an issue if the other party has obtained a parental order giving them full legal parenthood and parental responsibility, but there could be complications if the marriage breaks down before they have obtained a parental order.
The second issue relates to finances.
Same-sex marriage has only been possible in England and Wales since 2014 (12 months must have elapsed since the marriage before a divorce can take place, hence same-sex divorce has only been possible since 2015), and a lot of same-sex relationships were therefore in existence long before the parties married.
But the length of the marriage is a factor that can have a bearing upon a divorce settlement, so that a party may expect a less favourable settlement if it has been a shorter marriage.
This will not normally be a problem, as the court will usually count pre-marriage cohabitation towards the length of the marriage. However, it can be difficult to prove when cohabitation began, and this can lead to arguments in court.
If either of these issues apply to you then you should seek expert legal advice. We can find you an expert that works with you on our digital platform. For more information, call us on 020 3904 0506, or click here, and fill in the form.
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