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Vardags Family Law Essay competition 2023/24 | Zara Khan

Zara Khan - Durham University

Should the requirement for consummation in a marriage be abolished?

The requirement for consummation in a marriage is outdated, discriminatory and places too much importance on sex.

Consummation is ordinary and complete intercourse between a male and a female and is required to finalise a marriage. Under S.12(1)(b) of the Matrimonial Causes Act 1973, where there is wilful refusal of the respondent to consummate, a marriage can be annulled (voidable).

Should we extend the consummation requirement to same-sex marriages?

The Marriage (Same-Sex Couples) Act 2013 and Matrimonial Causes Act 1973 created inequality between same-sex and mixed-sex marriage as mixed-sex marriage requires consummation whilst same-sex marriage does not. Maine states that this prioritises one form of sexual intercourse above others  and Beresford argues that this undermines sexual relationships in same-sex marriages. Maine, Beresford, and Crompton argue that the requirement of consummation should be extended to same-sex marriage to get rid of this legal hierarchy of sexual relationships. However, this essay will argue that it would be more beneficial to abolish the requirement for consummation in a marriage.

Firstly, it is discriminatory as mixed-sex marriages are bound to consummate their marriages whereas same-sex marriages have the choice; therefore, extending the requirement would take the choice away from same-sex marriages.

However, Cossman, Ryder and Barker argue that the requirement for consummation should not be abolished because it gives marriage more value compared to other relationships so is a necessary requirement. Therefore, it is argued that instead of abolishing the requirement for consummation, we should extend the requirement to same-sex marriages. However, this argument does not take into account that marriage is not all about sex. As Sanyal and Ghosh state, marriage could be a way to…build a shared life together.  For example, requiring marriage to be consummated does not consider asexual relationships. If the intention behind extending the requirement of consummation is inclusivity, it would be contradictory if this does not include asexual relationships.

Herring argues that the core foundation of marriage should not be sex but care. Herrings argument gains strength when we look at some older married couples who may no longer desire sex due to a decline in libido as they get older. Does that mean their marriage is worth less than those who regularly have sexual intercourse? This seems to be the implication from Cossman, Ryder, and Barker when stating that sex is what differentiates marriage from other relationships. However, what makes a relationship between an old married couple is caring for one another for a long time, not how much sex they have had, so it is questionable why sex should be a foundational requirement for marriage. Therefore, the requirement for consummation in marriage should be abolished rather than extended to include same-sex marriages. This also abolishes the legal hierarchy of sexual relationships as acknowledged by Maine.

Consummation stems from religion and being able to procreate

Another reason why the requirement for consummation should be abolished is because it stems from religion, specifically Christianity, and being able to procreate. The Roman Catholic Code of Canon Laws states that if the spouses have performed…a conjugal act which is suitable in itself for…procreation then they have completed the marriage. Therefore, requiring consummation does not reflect todays society as less than half of the population described themselves as Christian.

Additionally, in D-E v A-G (1845), it was stated that the House of Lords has condoned the use of condoms, further underlining the fact that procreation need not be intended for consummation to take place. This was endorsed in Baxter v Baxter.22 However, if procreation is no longer the reason why we require consummation, why do we still have it? The reason consummation was introduced was because of the idea that marriage is for procreation, so it is confusing why we still have this requirement if the law has acknowledged that procreation is not the basis for consummation anymore. Furthermore, as we have seen in Steinfeld and Keidan [2018], the link that marriage has to religion discourages some couples from getting married.This undermines the institution of marriage as fewer people will choose to get married because of this. Abolishing consummation symbolises getting rid of religious ideas attached to marriage and may encourage more people to get married.

Abolishing consummation gets rid of the expectation that one is owed sex as a result of getting married

The idea of consummation and sex being the core foundation of marriage infers that one should expect sex from their partner, even if it is just once, as a result of being married. This supports ideas of the subordination of women to their husbands as it imposes a duty on wives. This is very harmful as, with sex being an obligation to finalise a marriage, it may problematically be inferred that by consensually marrying someone, both parties are also giving consent to having sex with their spouse.

Sanyal and Ghosh comment that it becomes hard to distinguish between marital sex and marital rape. Whilst this duty is for both the husband and wife, Goldfarb notes that this [continues] to be applied in ways that systematically disadvantage women. By abolishing consummation, we get rid of sex being an obligation for women and avoid putting pressure on women to have sex with their husbands out of obligation.

The consummation requirement is invasive to a couples private life

We are seeing a move towards marriage being a private act, with the Law Commission recommending the abolishment of the open door requirement in 2020. Even in criminal law, an agreement between spouses cannot amount to conspiracy for reasons of protecting marital privacy. Because of this trend, requiring consummation in marriage undermines such privacy. It allows the court to enquire about sexual relations between a couple and this is often something many people want to keep private as Dr Charlotte Proudman of Goldsmith Chambers states. She suggests that it could interfere with Article 8 of the European Convention of Human Rights. Therefore, the requirement of consummation should be abolished as it contradicts new ideas that marriage is a private act and it would protect the privacy of individuals who have their cases brought to court.

Conclusion

We see that abolishing the requirement for consummation in a marriage allows for more inclusivity and abolishes the idea that sex is the core foundation of a marriage. It also takes away religious aspects of marriage and gets rid of the duty and pressure to perform sexual acts with someone, whilst also giving married couples more privacy.

 

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Bibliography

Cases

UK cases

 

Baxter v Baxter [1948] AC 274, HL Clarkson v Clarkson (1930) 143 L.T. 775

D-E v A-G (falsely calling herself D-e) (1845) 1 Rob Ecc 279 Dennis v Dennis [1955] 2 WLR 817

Steinfeld and Keidan [2018] UKSC 32

 

Table of Legislation

UK Legislation

Marriage (Same-Sex Couples) Act 2013 Matrimonial Causes Act 1973 Matrimonial Causes Act 1973, s (1)(b)

Other Legislation

Convention for the Protection of Human Rights and Fundamental Freedoms (European Convention on Human Rights, as amended) Art 8

Books and Journal Articles

Appleton S., Toward a "Culturally Cliterate" Family Law? (2008) 23 Berkeley Journal of Gender, Law & Justice 267

Barker N., Rethinking Conjugality as the Basis for Family Recognition: A Feminist Rewriting of the Judgment in Burden v. United Kingdom (2016) 6(6) Onati Socio-Legal Series 2079

Becker M., Family Law in the Secular State and Restrictions on Same-Sex Marriage: Two Are Better Than One (2001) Illinois Law Review

Beresford S., Were All Same (Sex) Now?: Lesbian (Same) Sex; Consummation; Adultery and Marriage (2016) 12(5) Journal of GLBT Family Studies 468

Cornwall S., Sex and Uncertainty in the Body of Christ (Routledge, 2010)

Cossman B. and Ryder B., What is Marriage-Like Like? The Irrelevance of Conjugality (2001) 18(2) Canadian Journal of Family Law 269

Crompton L., Wheres the sex in same-sex marriage? (2013) 43 Family Law Journal 564

Goldfarb S., Divorcing Marriage from Sex: Radically Rethinking the Role of Sex in Marriage Law in the United States (2016) 6(6) Oñati Socio-legal Series 1276

Goldsmith Chambers, Dr Charlotte Proudman seeks declaration that the annulment of marriage on the ground of non-consummation is incompatible with the Human Rights Act (Goldsmith Chambers, 16 February 2021) accessed 27 November 2023

Hardon J., Pocket Catholic Dictionary (Doubleday, 1989)

Herring J., Family Law: A Very Short Introduction (Oxford University Press, 2014)

Law Commission, Getting Married: A Consultation Paper on Weddings Law (Law Com No. 247, 2020)

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