Vardags Family Law Essay competition 2023/24 | Lara Mulgrew

Lara Mulgrew - Durham University

The Law of Family Relationships in England and Wales: Consummation and Sex-Obsessed Intrusion

Introduction

The inherent nature of England and Wales family law as a body of rules based on historic influences from the church has resulted in areas being completely out of touch with societal development. The persistent ‘centrality of heteronormative sex’ and associated provisions which entrench this norm are problematic for a number of reasons, including the misogynistic and homophobic undertones associated with a heteronormative jurisprudence. This essay argues that such influences are antiquated, and reform is required in areas impacted. It begins by establishing the historical context of sexual intimacy and the conjugal family in England and Wales to establish that there is a deep-rooted religious influence in legislative tools which are used in a largely secular society today. It will proceed to analyse the status of consummation as a basis for nullity to conclude that offensive undertones and heteronormativity mean the law is in dire need of reform. Possible formulations of such reform will briefly be considered before the analytical body of the essay closes with a discussion of other deeply intrusive formulations of sex-based law, namely the suggested eligibility criteria for cohabitant protection. The essay will conclude with an endorsement of a move away from sex-based nullity and towards unifying the approaches utilised by marriage and civil partnership.

Historical Context and Development

‘Marriage, as understood in Christendom, may… be defined as the voluntary union for life of one man and one woman to the exclusion of all others.’ – Lord Penzance

This classic definition of marriage aptly encapsulates the conceptual marriage of church and state in formulating the laws governing marriage and divorce. Historically, marriage implicitly relied on the concept of conjugality and stereotypically acceptable families through the rules of the church. The Church of England in 1662 declared the purpose of marriage as ‘procreation of children’ and this influence was not lost in the courts of England and Wales, as ‘reproductive functions of male and female were regarded as the primary raison d’être of marriage’. Not only is this ideology outdated in the sense that it only considers heterosexual relationships, but also deeply concerning from a feminist viewpoint. Marriage was viewed as a tool to protect the man and submit the woman to him.

Having established the religious influence in the legal body of family law, it is useful here to identify why the depiction of such an influence is outdated. In an article entitled ‘Marriage is Disappearing from Britain’, Young purports that marriage will all but disappear by 2062 due to hugely declining rates. Furthermore, the 2021 census represented the first time that less than half of the population of England and Wales identified as Christian – only 46.2%. Societal attitudes to both marriage and Christianity are certainly changing, and perhaps negatively. This strongly indicates that there must be a case for reforming the Christian influences in family law.

This essay does not suggest that there has been no progression of family law with the uprising of secular society: marriage can be contracted in a non-religious civil ceremony and that has been available since 1836, and large steps have been taken this century in that we have seen the introduction of homosexual marriage and civil partnerships. However, the main issues identified and discussed below are still pertinent and, for now, the legal system has not rid itself of sex-based obsessions.

Critiquing Consummation

Consummation is defined as the act of making a marriage or romantic relationship complete by having sex. It is often seen as the final act of a wedding, thus occurring on the night of the marriage. Failure to consummate is a basis for two voidable grounds of marriage which allow the claimant to obtain a nullity order under section 12 of the Matrimonial Causes Act 1973. This can take two forms: incapacity of either party to consummate or wilful refusal of the respondent to consummate.

Incapacity is the ‘practical impossibility’ of consummation, and can stem from an incurable condition or invincible repugnance. Wilful refusal must be a ‘settled and definite decision’ which has been ‘come to without just excuse’.

England and Wales law takes the stance that homosexual couples cannot consummate which is a problem of discrimination in the law. You cannot annul a civil partnership – a mechanism initially intended only for homosexual couples - on grounds of incapacity to consummate, or wilful refusal to consummate. Whilst Barker notes that the absence of sex in the Civil Partnership Act 2004 may transform the ideology of the legal regulation of relationships, even allowing non-sexual relationships to gain access to legal provisions analogous to marriage, these opinions serve to minimise the real issue at play – that the Civil Partnership Act is discriminatory towards homosexual couples by creating an asymmetric painting of their relationship in relation to heterosexual marriage. Proponents of this asymmetric legislation argue that equality is not achieved by treating different people identically. However, the failure of same-sex marriage and the Civil Partnership Act to engage with gay sex encourage homosexual attitudes that demonise gay and lesbian sex. The eradication of consummation in opposite-sex relationships could therefore serve to create equality among any constitution of couple in a formalised relationship whilst removing hierarchical ideas surrounding heterosexual sex.

Marriage is a legal phenomenon, and the law has a choice of how to define it. However, the law is still concerned with Christian principles and this article suggests that influence on the law is the reason consummation is a factor of nullity. The Christian ideal of sex is that it should only take place in a heterosexual marriage with the intention of procreation. Whilst Ellen suggests the discomfort surrounding gay sex is due to societal ‘naivety, squeamishness and discomfort’, Brundage asserts that medieval Catholicism is extended into modern statutory law. This essay finds the latter opinion more convincing, as the links between Christianity and England and Wales law are long established. However, it is proposed that the notion of consummation in accordance with procreative normative sex should be abolished from the law, joining the notable steps of non-religious marriage and legalised divorce.

The final critique of consummation regards the extent to which it interferes with privacy. In order to prove incapacity to consummate, either an incurable condition or invincible repugnance must be proven. Language in the courtroom discussing ‘well formed, but flabby’ sexual organs as well as ‘paralysis and distortion of will’ preventing the act of sexual intercourse are frankly graphic and unnecessary, not to mention the impact on an individual likely traumatised by the impact of attempted sexual intercourse. Although Deech correctly purports that some level of sexual analysis is necessary to differentiate couples from brother and sister relationships, it is unnecessary for the courts to take such an interest in the sexual proclivities of consenting adults.

Proposed Reform

The Church of England emphatically supports the ‘underlying biological complementarity’ between the marriage of man and woman²³, but this is little more than an excuse for simultaneously reinforcing homophobic attitudes towards sexual relations alongside the gender stereotypes associated with uniform penetrative intercourse. There cannot continue to be a heteronormative attitude outwardly displayed in legislation and the common law. It is therefore purported that removing the importance of penetration and instead favouring the notion of sexual intimacy and fidelity between couples is a much more suitable depiction of a marital relationship. This construction of ‘test’ allows for understandings of different sexual preferences – not only amongst homosexual couples but all couples who may not necessarily wish to mark their marriage with the traditional unitive act. There is an obvious benefit to homosexual couples as to disestablish consummation’s current role would contribute to ‘the queering of marriage’ by ‘deconstructing heteronormativity.’ It also maintains the distinction between intimate relationships and platonic/ familial ones in order to limit legal protection to those who need it most.

Cohabitant Protection

Consummation is not the only intrusion of individuals’ intimate lives and privacy present in family law. One other example of particular interest is the strange juxtaposition between the courts’ historic demonisation of sexually active cohabitants and the modern suggestion that the presence of a child living with a pair of cohabitants should automatically make the couple eligible for legal protection. Until as late as the mid-20^th century, cohabitating couples were viewed to be ‘living in sin’, with some instances of outright misogynistic labelling of the female cohabitant as a mistress. These severe gendered overtones are highly derogatory, and evidence of the outdated influences yet again perpetuated throughout the legal system. Luckily, these attitudes have dissipated over the past 50 years in line with changing societal attitudes. Cohabitants are widely viewed as valid couples who are worthy of legal protection, and the ‘social stigma’ has almost disappeared.

A curious point is that proposals for cohabitation reform – which often centre around eligibility criteria – have suggested on many occasions that a cohabiting couple who have a child together will automatically be eligible for legal protection, whereas couples without a child are to be subjected to time restraints. One example of this is the Law Commission report in 2007 which proposed two routes to eligibility for legal protection and financial remedy: either the presence of a child or living together for a minimum time of 2-5 years. Whilst there is large support for cohabitation reform, particularly in situations where a child is present, it is nonsensical to suggest that a couple who have been living together for a matter of hours but have a child together could be offered more protection than a couple who have been romantically involved for years and living in the same home. Perhaps this is also due to the law’s innate focus on sexual relationships and the fact that the presence of a child ensures this has been the case.

If cohabitation law was to follow a similar reform of sexual intimacy as an overarching concept, it could distinguish purely platonic relationships from romantic without discriminating against childless couples.

Conclusion

This essay has argued for the reform of a sex-obsessed body of law in England and Wales, with particular regard for consummation-based nullity and other interferences with sexual autonomy. It has sought to prove a disproportionate involvement of the church in family law and display the negative impact this has had on creating a heteronormative depiction of marriage.

A move away from sex-based nullity and towards unifying the approach utilised by marriage and civil partnership is endorsed. Simply removing the existence of sex-based nullity and discussions of consummation would place all couples on an equal footing. However, it is noted that recognition of the presence of sexual intimacy and marital fidelity may be an appropriate mechanism to honour the importance of intimacy within a marriage whilst having less interference with autonomy and respecting couples’ right to privacy.

If you’re considering or going through a divorce, click below for a free initial consultation with one of our expert divorce solicitors.

BOOK FREE CONSULTATION

Bibliography

Articles

Barker, ‘Sex and the civil partnership act: the future of (non) conjugality?’. Feminist Legal Stud 14, 241–259 (2006)

Barlow and Smithson, ‘Legal assumptions, cohabitants’ talk and the rocky road to reform’ [2010]

Child and Family Law Quarterly 328

Crompton, ‘Where’s the Sex in Same-Sex Marriage’ (2013) 43 Family Law 564

Deech, ‘The Case Against Legal Recognition of Cohabitation’ (1980) International and Comparative Law Quarterly 29:2

Law Commission Report (2007), Cohabitation: The Financial Consequences of Relationship Breakdown

Maine, ‘Queer(y)ing consummation: an empirical reflection on the Marriage (Same Sex Couples) Act 2013 and the role of consummation’ (2021) Child and Family Law Quarterly 33(2)

Norrie, ‘Marriage is for heterosexuals may the rest of us be saved from it’. (2000) Child and Family Law Quarterly, 12(4)

Saynal, ‘Aboloshing consummation: the need to de-essentialise sex within marriage’ (2022) Indian Law Review 6:3, 331

Books

Brundage, ‘Law, Sex and Christian society in Medieval Europe’ (University of Chicago Press, 2009) Church of England Book of Common Prayer 1662

Crompton, ‘Don Leon, Byron, and Homosexual Law Reform’ in Essays on Gay Literature (Routledge, 1985)

Walter, ‘Cambridge Dictionary’ (CUP, 1995)

Cases

Bellinger v Bellinger [2003] UKHL 21

Durham v Durham [1885] 10 PD 80 Dyson Holdings Ltd v Fox [1976] QB 503 G v G [1924] UKHL 445

G v G [1925] AC 349