Failure to consummate a marriage still valid grounds for annulment in BC

An annulment for failure to consummate a marriage is still alive and well in British Columbia.

Annulment vs. Divorce

Divorce and annulment have the same result: dissolution of the marriage. However, both have different implications for how the prior marriage is treated. A divorce is considered “prospective” in that it affects the parties’ status in the future. A couple who obtains a divorce is no longer legally married to each other, but the law still recognizes that the parties were married at some point in the past. A couple who divorces may need to divide up their assets and deal with any spousal support obligations should they arise. An annulment is different in that it is “retroactive”. It applies to the couple’s status in the past and makes the couple’s marriage “void”. In this way, the law would treat the couple as if they had never married to begin with.

Failure to Consummate and Annulment

The inability to consummate a marriage as grounds for an annulment has historically been a matter that could only be addressed by ecclesiastical (religious) courts. In British Columbia, the courts of common law now assume jurisdiction for an action to dissolve a marriage based on inability to consummate. The person seeking the annulment on this ground has to establish that their soon to be former spouse is incapable of consummation.

How do you prove the inability to consummate?

Historically, proving one spouse lacked the ability to consummate a marriage required the spouses to provide an actual demonstration in front of a jury of medical professionals and others that sexual intercourse was not possible. Additionally, if there was a possibility that the incapacity to consummate a marriage could be cured, no annulment would be granted. In the early 20th century, the suggestion that a male lacked the ability to procreate was a serious slight against his very manhood (the commentary on the fragile male ego has been left out of this article). As explained by Lord Birkenhead:

The petitioner must remove all reasonable doubt, for she has undertaken the burden of proof, and it is important is such a case that she should be compelled to discharge the burden, for the charge made, though physical and not moral, is nevertheless a grave and wounding imputation that the respondent is lacking, at least quoad hanc, in the power of reproducing his species, a power which is commonly and rightly considered to be the most characteristic quality of manhood.

C. (otherwise H.) v. C., [1921] P. 399

The Modern Approach in BC

Thankfully modern courts no longer require such a graphic display before granting an annulment. All that is required is for a spouse to establish that one or both parties is incapable of engaging in sexual intercourse due to a physical or psychological incapacity. The incapacity need not be of a general nature. All that is required is the incapacity to consummate with the particular spouse from whom the annulment is sought (mistresses rejoice!). The incapacity to consummate relationship with the spouse While these issues are uncommon in modern family courts, they do arise on occasion.

The BC Supreme Court recently released the decision of S.Z v. Z.J. 2020 BCSC 1336 where a wife sought annulment of marriage and to void her marriage contract on the grounds her husband could not consummate the marriage. In this case the wife sought an annulment as opposed to divorce for religious reasons.

The court was satisfied the affidavit evidence of both parties established that the marriage was never consummated and could not be after numerous unsuccessful attempts. The fact that the husband was able to do so with his new girlfriend had no bearing on on whether the wife established the marriage was not consummated. It seems where there is uncontradicted affidavit evidence, the courts aren’t likely to ask many further questions.

There is truly never a dull moment in Family law.