The requirement for a marriage to be consummated

annulling a marriage due to non-consummation

There is a general presumption that a marriage has been consummated. In order to displace this presumption, there must be evidence of non-consummation unless both parties agree.

If the consummation of the marriage is disputed, the court may appoint a medical examiner if necessary to resolve the case, as set out by Practice Direction 7B to the Family Procedure Rules 2010.

To prove the non-consummation ground for a voidable marriage, a party must demonstrate that the marriage has not been consummated due to incapacity to consummate or wilful refusal to consummate.

determining incapacity or wilful refusal 

As per S v S [1955] 2 WLR 246, the test for incapacity is “practical impossibility of consummation”. Furthermore, the incapacity must be permanent and incurable. For example, in S v S the wife underwent an operation that meant she was then capable of consummating her marriage. Due to this, the husband’s petition for a decree of nullity failed, even though the wife sought medical help and subsequently underwent the operation after he filed his petition. The court held that the husband could not prove that the marriage hadn’t been consummated due to the wife’s incapacity, as she had been willing to undergo the operation, and indeed subsequently underwent it.

In Horton v Horton [1947] 2 All ER 871, it was held that ‘wilful refusal’ consists of a party making a “settled and definite decision” not to consummate the marriage without “just excuse”. Whether a party has a “just excuse” will be determined by the court. Requiring a religious ceremony before consummation (Jodla v Jodla [1960] 1 WLR 236) does not constitute wilful refusal (but refusal to arrange such a ceremony where in the view of both parties a religious ceremony is necessary before a marriage in a register office can be consummated does).

If your marriage has not been consummated and you are considering a divorce or annulment, contact Vardags today for a free initial consultation with one of our expert divorce solicitors.

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