Non-Consummation of Marriage
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Consummation of the marriage, according to Dr Lushington in D v A (1845) 163 ER 1039, requires "ordinary and complete" rather than "partial and imperfect" sexual intercourse, including erection and penetration but not necessarily leading to orgasm. It certainly need not result in conception, and the fact that the husband may be sterile or the woman barren is legally irrelevant.
Either party can seek an annulment on the grounds of incapacity. The incapacity may be physical or psychological, and may not prevent intercourse with anyone other than the spouse, but must be permanent and incurable. The fact that the parties may have had successful intercourse before the marriage is irrelevant if the incapacity existed at the time of the marriage; it is not clear how the law would view a case in which (say) the incapacity was the result of a road accident between the church and the honeymoon hotel.
S v S [1962] 3 All ER 55, CA
A woman W had a malformed vagina making full penetration impossible. The medical evidence was that this could be rectified by a simple operation, though W would still be unable to conceive and her pleasure in the sexual act would not be significantly enhanced. H's petition for nullity was denied: W was not unable to consummate the marriage if surgery was available, and the other matters were irrelevant.
Singh v Singh [1971] 2 All ER 828, CA
W (aged 17) went through a civil marriage with H. It was an arranged marriage, prior to which W had never met H, and she thought him ugly and uneducated. She sought an annulment, claiming inability to consummate the marriage owing to an invincible repugnance, but failed. There was insufficient evidence of any such inability, but obiter, a petition by H would probably succeed because of W's wilful refusal.
If either partner wilfully refuses to consummate the marriage, the other may petition for an annulment: there were some 290 decrees of nullity granted on this basis in 1988, compared with only about 80 based on incapacity and a mere handful for the annulment of a voidable marriage on other grounds. (Decrees of nullity of a wholly void "marriage" are very rare: the few that are granted are almost always because of bigamy.) The refusal must be settled and definite, and arrived at "without just excuse": the husband is expected to use appropriate tact, persuasion and encouragement if his wife is shy, and her resistance to insensitive demands will not necessarily be regarded as wilful refusal.
Horton v Horton [1947] 2 All ER 871, HL
H and W were married as Roman Catholics in 1944; H was still in the army, and decided they should not have children until they had a home of their own. Because of their religion H and W were unwilling to use contraceptives, and one attempt to consummate the marriage failed. Three years later, H sought an annulment on the grounds of W's refusal to consummate the marriage. His petition failed on the facts, but Lord Jowitt LC said obiter that "wilful refusal" means a settled and definite decision arrived at without just excuse, taking into account the whole history of the marriage.
Baxter v Baxter [1947] 2 All ER 886, HL
H and W were married, and throughout the marriage W refused to allow H to have intercourse with her unless he wore a condom. Refusing H's petition for an annulment, the House of Lords said consummation could occur even when artificial contraception was used.
Cackett v Cackett [1950] 1 All ER 677, Hodson J
Throughout the marriage, H insisted on intercourse only by coitus interruptus in spite of W's repeated protests: W's parents had been first cousins and H was determined that W should not conceive. The judge refused W's petition for a decree of nullity and said the marriage had been consummated, but granted a divorce on the grounds that H's persistence in this practice in spite of its obvious effects on W's health amounted to cruelty.
Potter v Potter (1975) 5 Fam Law 161, CA
H and W married, and found W was physically unable to consummate the marriage. W underwent surgery and they tried again, but were prevented by W's emotional state. H then declined to try further and W petitioned for annulment on the grounds of H's wilful refusal. The judge dismissed the petition and W's appeal also failed: H's refusal was the result of his loss of sexual ardour rather than a deliberate decision.
Ford v Ford [1987] Fam Law 232, Judge Goodman
H and W had a sexual relationship until H was sent to prison. They married while he was in prison, but he refused to consummate the marriage at the time and later said he did not want to live with W even after he was released. W's petition for a decree of nullity was allowed: H's refusal to consummate the marriage in prison was not a "wilful refusal", but his clear determination never to do so was sufficient.
Where the parties jointly regard some other act (usually a religious ceremony) as necessary before consummation, refusal to participate in this other act will be regarded as refusal to consummate.
Jodla v Jodla [1960] 1 All ER 625, Hewson J
Roman Catholics H and W were married in a register office, on the understanding that they would not consummate the marriage until after a church wedding, yet to be arranged. W repeatedly asked H to arrange the church wedding but he refused to do so. W's petition for a decree of nullity was granted: by refusing to arrange the religious ceremony which their joint faith required, H was effectively refusing to consummate the marriage.
Kaur v Singh [1972] 1 All ER 292, CA
H and W were married in a register office, but their shared Sikh religion required a subsequent religious ceremony to complete the marriage. H refused to arrange such a ceremony and W petitioned for an annulment. The Court of Appeal said H's refusal to implement the marriage was tantamount to a refusal to consummate it, and W was granted the decree she sought.
A v J (Nullity) [1989] 1 FLR 110, Anthony Lincoln J
H and W were of Indian ancestry and took part in an arranged civil marriage, which was to be followed by a religious ceremony some four months later. Between the two ceremonies they spent only a few days together because of H's work in the USA. Shortly before the religious ceremony (which it was accepted was a prerequisite to consummation), W refused to go ahead with it, giving as her reason H's apparently uncaring and unloving attitude towards her. H apologised and said he had supposed a formal relationship would be appropriate until they were "properly married", but W refused to accept this apology and maintained her refusal to go through with the religious ceremony. H was granted a decree of nullity for W's wilful refusal to consummate the marriage.
