I thank the noble and learned Baroness for bringing forward this amendment. I have listened to what she said most carefully and I can see the point she raises. Unfaithfulness is understandably a cause for which many people seek divorce but I do not think that anything in this Bill will prevent people divorcing their partners for unfaithfulness. In my view, marriage is a contract that varies in its nature, understanding and commitment from couple to couple. The issue and the importance of fidelity is one that, equally, varies from couple from couple, but it is fair to say that fidelity is a cornerstone of most religious marriages. I think the same should be said of civil marriage, too.
The definition of the sexual act that defines fidelity for heterosexuals is outdated and, in my view, very cumbersome. The noble and learned Baroness is very brave to bring the issue to this House. When one looks at penetration as part of that definition, or we try to import the definition of penetration from rape into this, it does not deal with lesbian couples, for example. So much of our sexual law is defined by the male and not by women that a complete class of marriage is ignored by what the noble and learned Baroness is trying to do. If we had had more and broader discussions on the Civil Partnership Act and over the Bill, we may find common ground, but simply importing the definition of penetration—anal, vaginal or oral—into this would leave lesbians at a complete disadvantage regarding fidelity. While I completely understand what is behind this, we come back to the definition of fidelity. I think the Government’s position has been not to disturb the current arrangements as far as possible, to avoid tampering with existing legislation. It is a much wider question, which I certainly welcome. There is no way anyone can accuse the noble and learned Baroness of being homophobic in her amendment.
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