Confused about consummation?

The issue of consummation of marriage has arisen in the current debate around the marriage referendum. A great deal of confusion has arisen as a result. As such, some clarification of the law may be useful in analysing claims made in relation to consummation:

1. At the moment, a marriage is voidable if either party is unable to consummate the marriage, for either physical or psychological reasons. The inability may be general or relative to one's spouse only. That is, a person may be able to avoid a marriage because they were unable, at the time of the marriage and thereafter, to have sexual intercourse with their spouse, even if they go on to have sexual intercourse with a third party.

2. Until such time as a voidable marriage is avoided, the marriage remains valid. A voidable marriage is valid, but can be avoided by one of the parties to the marriage. If but only if one of the spouses avoids the marriage, the marriage is then deemed to be void with retrospective effect. In other words, once avoided, the law says there is not and never was a valid marriage.  Yet, if the marriage is never avoided, it remains perfectly valid.

3. It is possible to lose the right to avoid the marriage through, for instance, delay or what is called 'approbation'. A married couple could, for instance, lose the right to avoid if, knowing of their right to avoid, they choose to remain married, or rely on rights only available to married couples.  In such cases, a court might find that it is unjust to allow a spouse to avoid the marriage.

4. A married couple could also lose the right to avoid if they agreed or understood their marriage would be platonic. This has been illustrated, for instance, in two English cases, Scott v Scott and Morgan v Morgan.

There is some debate as to whether a marriage is void or voidable if the couple have the capacity to consummate it but they simply choose not to do so. Traditionally, wilful refusal to consummate was not a ground for annulment. A judgment from the 1970s is sometimes relied on to suggest there might be a right to avoid where there is wilful refusal to consummate. This related, however, to a case where a husband had deceived his wife as to his true intentions and may more properly be characterised as a case where marriage is void for lack of consent in relation to a fundamental feature of the marriage. It more than likely would not apply to a married couple who agreed in advance that their marriage would be sexless.
5. Consummation involves a single act of heterosexual sexual intercourse, though the ability to procreate is irrelevant in this context.  You can consummate a marriage without being able to procreate. Consummation is possible, for instance, while using contraceptives (Baxter v Baxter), and in circumstances where the parties are too old to bear children.

6. If the forthcoming referendum were to pass, and if a same-sex couple were to marry, they would arguably be considered by a court to have waived their right to avoid on the basis of inability to consummate. The couple must have known, in advance of marriage, that they would be unable to consummate their marriage in the manner contemplated by law. As such, I doubt sincerely that any judge would allow either party to a marriage of a same-sex couple to avoid the marriage on this ground.


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