Section 17(c) of the Matrimonial Causes Act (Chapter 282) deals with refusal; incapacity is dealt with elsewhere.
Sections 17(c) and 21
That the other party to the marriage has wilfully and persistently refused to consummate the marriage.
A decree shall not be made on the ground in section 17(c) unless the Court is satisfied that, as at the commencement of the hearing of the petition, the marriage had not been consummated.
Unlike desertion (two years), cruelty (one year) or separation (five years), section 17(c) sets no period.
The control is instead in the words “wilfully and persistently”, and in section 21’s requirement that the marriage remain unconsummated at the hearing.
“Wilfully and persistently”
| Element | Meaning |
|---|---|
| Refused | A settled decision not to consummate — not mere failure or delay |
| Wilfully | Deliberate, and without just excuse — which distinguishes refusal from incapacity |
| Persistently | Maintained over time, not a single occasion |
| Not consummated at the hearing — s 21 | If the marriage is consummated before the hearing, the ground fails |
The test is applied at the commencement of the hearing, not at the date of the petition. A reconciliation and consummation after filing extinguishes the ground.
That is deliberate. The section is concerned with a marriage that has never become a marriage in fact, and a marriage that has been consummated is no longer in that category.
Refusal is not incapacity
| Wilful refusal | Incapacity | |
|---|---|---|
| Provision | s 17(c), with s 21 | s 37, and s 22(2)(a) of the Marriage Act |
| Decree | Dissolution | Nullity — the marriage is voidable |
| Nature | Choice — a deliberate refusal | Inability, existing at the time of the marriage |
| Effect on status | A valid marriage is ended | The marriage is set aside |
The two lead to different decrees, under different Divisions of Part V, with different consequences.
In practice a petitioner may not know which applies — the respondent’s reason for not consummating may be unknown. Section 30 addresses the position where both a nullity petition and a dissolution petition are before the Court: the Court shall not make a decree of dissolution unless it has dismissed the petition for nullity.
So nullity is determined first. A petitioner uncertain of the position should take advice on how to plead.
Available within three years without leave
Section 31 does not require leave for proceedings on one or more of the grounds in section 17(a), (c) or (e), and on no other ground.
Section 17(c) is one of only three grounds — with adultery and the sexual offences in paragraph (e) — that can be relied on in the first three years of a marriage without applying for leave.
That makes sense: a marriage that has never been consummated is likely to be a short one, and requiring the petitioner to establish exceptional hardship or exceptional depravity under section 31(4) would be harsh.
Note the qualification: the exemption applies only where the petition relies on those grounds and on no other ground. Adding a further ground brings the leave requirement back.
Bars, evidence and privacy
- Section 27 — condonation and connivance apply to grounds (a) to (k). Consummation itself would in any event defeat the ground under section 21.
- Section 28 — collusion. Because this ground can be established quickly and largely on the parties’ own evidence, the collusion bar is of particular importance.
- Section 29(d) — where the petitioner’s conduct conduced to the refusal.
- Section 95 — restrictions on publication of evidence, which matter greatly in a case of this kind. Section 92 deals with hearings in open court.
- Sections 80 and 81 — the standard of proof, and the evidence of husbands and wives.
Section 10 requires the court to consider the possibility of reconciliation, and permits a Judge to nominate a marriage conciliator. Where the difficulty is one that counselling may resolve, that step is likely to be taken before the petition is heard — and section 12 protects what is said in the attempt.
Sources
- Matrimonial Causes Act (Chapter 282) — ss 10, 12, 17, 21, 27–31, 35–39, 80, 81, 92, 95
- Marriage Act (Chapter 280) — s 22
Before relying on anything here, read the current text of the Marriage Act (Chapter 280) and check for later amendments. If a decision matters to you, get advice — start with the Office of the Public Solicitor, or find a firm in the law firms directory.