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Judge rules gay sex can be adulterous

The Scarlet Letter fades to pink

Canadian queers now have the right to marry-and the corresponding right to divorce-but a recent BC Supreme Court decision changes the Divorce Act so queer husbands and wives can get quickie divorces in cases of adultery.

In the case of a BC woman whose husband was having an affair with a younger man, Justice Nicole Garson has ruled that an extramarital affair is now grounds for a quickie divorce-even if the other woman is a man.

The 44-year-old woman in the case, who can be identified only as P because of a court order, discovered her husband’s affair in Oct 2004 when she found an email he wrote to his 24-year-old same-sex lover in Prince George.

The email explained how upset the husband, 47, was to be leaving the man and returning to life in Vancouver.

P threw her husband out on learning of the affair, and the childless couple wanted a fast divorce.

Under the law, couples must normally wait a year before their divorces are finalized, unless there is an affidavit admitting infidelity or physical abuse.

P’s husband admitted to the gay affair.

Garson initially declined to grant an immediate end to the marriage of 17 years because the definition of adultery in the Divorce Act only applied to consensual sexual contact between a man and a woman, at least one of whom was married to someone else.

In the end, Garson decided she did not have to rely on a possible Charter challenge to the Divorce Act and that she had the jurisdiction to make what is known as an incremental change to the existing law.

“The implication for the queer community is that we will now be able to get divorced if our spouse has an affair in the same way that hets can get divorced in that circumstance,” says queer lawyer barbara findlay who represented P.

“It’s in some ways, a small change of great significance for people who want to get divorced,” she says.

P says she’s found support in an Internet site (www.ssnetwk.com) for straight people who discover their partners are queer. She told The Vancouver Province she hopes the legalization of same-sex marriage will mean nobody has to go through what she has. She says she still has problems trusting men and that her self-esteem has been destroyed.

Her husband has since apologized and told her he felt pressured into their marriage by social norms and religion.

The change in the law comes hot on the heels of another BC Supreme Court decision, in June, in which the Divorce Act’s old man/woman definition of a married couple was struck down.

In that case, two women, who were married in Parksville on Vancouver Island in 2003, wanted to divorce.

However, BC’s Divorce Act defined marriage as only between a man and woman.

Justice Laura Gerow declared the Divorce Act’s old definition unconstitutional, and granted the divorce.

The act now refers to ‘two persons’.

But, adds findlay, Gerow’s ruling didn’t change the Divorce Act to meet the realities of adultery as grounds for divorce.

“We’ve won now,” findlay says. “We don’t have to challenge the Divorce Act anymore.”

Findlay already has several files from other queer couples seeking divorces due to infidelity, and she’s expecting more.