K. Non-consummation of Marriage

Author:Julien D. Payne - Marilyn A. Payne

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Impotence, which is the inability to consummate the marriage, renders a marriage voidable. Canadian law draws a distinction between the inability to consummate a marriage and wilful refusal to do so. It is impotence, not wilful refusal, that constitutes a ground for annulment of marriage in Canada.96A continuing and persistent refusal to consummate the marriage may, nevertheless, be indicative of impotence.97Either or both parties to a marriage that has not been consummated may petition the courts for annulment of the marriage. Even the impotent spouse can seek the annulment provided that he or she did not knowingly deceive the other spouse.98

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Impotence is not to be confused with the inability to have children. Impotence signifies an incapacity in one or both spouses to engage in normal sexual intercourse with each other.99As was stated in an old English case,

The only question is whether the [spouse] is or is not capable of sexual intercourse, or, if at present incapable, whether that incapacity can be removed. . . . If there be a reasonable probability that the lady can be made capable of a vera copula - of the natural sort of coitus, though without power of conception - I cannot pronounce this marriage void. If, on the contrary, she is not and cannot be made capable of more than incipient, imperfect, and unnatural coitus, I would pronounce the marriage void.100With respect to same-sex married couples, section 4 of the Civil Marriage Act 101 provides that "for greater certainty, a marriage is not void or voidable by reason only that the spouses are of the same sex."

The use of contraceptives or the practice of coitus interruptus does not preclude consummation of the marriage.102Conversely, the impregnation of the wife by artificial insemination does not constitute consummation of the marriage even if the husband’s semen is used.103The inability to consummate the marriage may arise from a physical in-capacity or from an invincible repugnance or aversion to sexual intercourse.104

The sexual incapacity may be general in character or it may exist only as between the spouses themselves.105A marriage is consummated on the first occasion when the spouses engage in postmarital sexual intercourse. Once consummated, always consummated, is the criterion.106Premarital intercourse cannot constitute consummation of a subsequent marriage between the parties, although it may be presumptive evidence of the capacity of the spouses to...

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