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Senior Lecturer, Staffordshire University, Solicitor:
The Marriage (Same Sex Couples) Bill will open up marriage to same-sex couples but there will be no expectation that a same-sex marriage will be sexual because it will not be voidable for non-consummation. Adultery will only be possible with a person of the opposite gender. The article argues that the Bill's failure to deal with gay sex will encourage homophobic attitudes that gay sex should be kept in the closet. It considers the law's approach to gay sex, in particular attempts to de-sexualise same-sex relationships by equating them with non-sexual caring relationships. The article contends that the overall message of equality will be undermined if adultery and consummation are not dealt with in a meaningful way for same-sex marriages. The author suggests that the law needs to move beyond penetration in its view of marital sex. A way forward could be to focus on intimacy and fidelity rather than penetration specifically so that it is clear that all marriages are essentially sexual in nature, whatever the genders of the participants.
The full version of this article appears in the May 2013 issue of Family Law.
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