A marriage is a voidable marriage under Matrimonial Causes Act 1973, where the marriage has not been consummated due to the incapacity of either husband or wife to consummate or where either husband or wife intentionally or wilfully refuses to sexual intercourse or consummation. A question is often raised that whether such marriages which are not consummated are valid marriages?
A family division court has to answer the question of consummation in a recent case involving a couple (one partner was gay). The couple was legally married and have fulfilled the legal requirements of a marriage under Marriage Act 1949. The marrying couple knew well that one is a gay and the future relationship will be of love and affection but not sexual.
The couple argued that they are a married couple (under Section 54 of Human and Embryology Act 2008) despite the fact that they were never involved in a sexual relationship and have not consummated the marriage in line with generally, historically and religiously accepted principle.
It was held by the court that the couple is a genuinely married couple despite the fact that they were and are likely to be never involved in a sexual relationship. The marriage fulfilled all legal conditions of Marriage Act 1949; hence it was a valid marriage and couple is a married couple in English Law. The Court was of the opinion that the marriage is a marriage and absence of sex or consummation does not concern the court or state.
The marriages which are not consummated due to the incapacity or willful refusal of a partner to have sex, are voidable. The grieving partner can apply to the court for a declaration of nullity of the marriage.
However, where the marrying couple intentionally or knowingly entered into a marriage which will not involve sex (as in the above case) and where it is unjust to declare such marriage void, a court will not declare such marriages avoidable or nullify them. The English law will treat such consenting non-consummating couples as married couples.
For further information, guidance and advice visit www.legalally.co.uk/family-law/