The definition of adultery is defined in common law as voluntary sexual intercourse between a spouse and a person of the opposite sex out-with the marriage. The definition does not include spouses, whether they are in heterosexual and same-sex marriages, that become involved in same-sex extra-marital relationships, therefore, the grounds of adultery cannot be cited as grounds of divorce under The Divorce (Scotland) Act 1976 in such instances. Clearly the definition of adultery is ‘out of date’ and needs to be amended under law that is in keeping with human rights and equality legislation.
The Human Rights Act 1998 has meant that all UK legislation must be read and applied in a way that protects a person’s human rights. As the law currently stands on the definition of adultery, it infringes on the fundamental human right under Article 1 Universal Declaration on Human Rights that states “all human beings are born free and equal in dignity and rights.” Another important argument is that of religion and the protection of religious beliefs under Article 9; the current definition of adultery prohibits a person to exercise this right when their religion states that adultery needs to be cited as grounds for divorce, and this is reinforced by Article 8 the protection of morals. In addition, Article 14 requires there be no discrimination in the application of human rights on any ground.
Equality within marriage should mean there should be equality with divorce, but as the law currently stands there is no equality in adultery laws. A person has the right to marry the way that they choose, therefore, they should have the right to choose how they divorce. The restrictive definition of adultery does not permit this, this is a direct discrimination as it treats one part of society less favourably than another, placing one part of society at a disadvantage, being a direct breach of the Equality Act 2010. Marriage equality should mean equality in all respects, there should be no violation to this fundamental principle.