1. INTRODUCTION

It is a great privilege to contribute a chapter to this collection of essays in honour of John Eekelaar. His contribution to family law scholarship is unrivalled, not only for his incisive analysis and his thoughtful, compassionate approach, but also for his range. Whichever topic in family law one lights upon, one is certain to find that John has gone before. In this chapter, I want to examine the legal significance of sexual intimacy in adult relationships, drawing on John’s concern with the privileged sphere and the importance of respect for intimacy.

To set this in context, over the last two decades, the legislatures in the UK have recognised and regulated an ever-wider range of adult relationships: samesex civil partnerships, same-sex marriage, and different-sex civil partnerships are now on the statute books, as is cohabitation in Scotland. But alongside this flourishing of legally recognised relationships, there has also been a longer-term (and welcome) decline in State involvement in the lives of the parties during the course of the relationship. The State sets out the conditions and processes for entering into a recognised relationship, and thereafter does not generally get involved until the relationship comes to an end, when it provides a legal mechanism for exiting from the relationship, and confers specified rights on one or both parties, on divorce, dissolution or death. Absent criminal or nonconsensual conduct, what goes on behind closed doors during the relationship remains private.

Yet, while the private lives of the parties are largely beyond the gaze of the State, there is a notable exception: their sexual conduct continues to be of legal relevance, to differing degrees, by its presence or absence at the two key stages of relationship formation and dissolution. As Maine has said, sex can be a legal deal-maker or deal-breaker.

In this chapter, I shall provide an overview of the legal role played by sexual intimacy in adult relationships, before drawing out four adverse consequences of this. The clear conclusion is that law reform is required, to tackle inherent discrimination. I will focus on the current law, but it must be recognised that the historical regulation of sexual intercourse, both within and outwith marriage, has shaped where we are.

It is important to emphasise three critical points.