Incapacity to consummate makes a marriage voidable under section 22(2)(a) of the Marriage Act (Chapter 280). Section 37 of the Matrimonial Causes Act (Chapter 282) controls when a decree may follow.
Incapacity is not refusal
| Incapacity | Wilful refusal | |
|---|---|---|
| Nature | Cannot | Will not |
| When it must exist | At the time of the marriage, and at the hearing | A course of conduct after the marriage |
| Provision | Marriage Act s 22(2)(a); MCA ss 35–37 | MCA s 17(c), with s 21 |
| Decree | Nullity | Dissolution |
A petitioner often cannot know which applies. What is visible is that the marriage has not been consummated; the reason may be unknown.
Section 30 addresses the position where both petitions are before the Court: it shall not make a decree of dissolution unless it has dismissed the petition for nullity. So nullity is determined first, and a petitioner uncertain of the position should take advice on how to plead.
The incapacity need not be physical. An invincible repugnance or psychological inability, as distinct from a decision not to consummate, has traditionally fallen within incapacity rather than refusal.
Section 36(a) — who may petition
A decree shall not be made on this ground on the petition of the party suffering from the incapacity — unless he was not aware of the existence of the incapacity at the time of the marriage.
So the affected party may petition, provided they did not know of the incapacity when they married. A person who knew and married anyway cannot rely on their own condition; a person who discovered it afterwards is in the same position as their spouse.
Section 37(1) — the incapacity must persist and be beyond remedy
(a) the incapacity is not curable; or
(b) the respondent refuses to submit to such medical examination as the Court thinks necessary for the purpose of determining whether it is curable; or
(c) the respondent refuses to submit to proper treatment for the purpose of curing it.
The petitioner cannot obtain a decree merely by showing that the marriage is unconsummated. Two further things are required:
Persistence. The incapacity must still exist at the commencement of the hearing. A condition resolved before trial defeats the petition — the same approach as section 21 takes to refusal.
Incurability, or refusal. A curable condition that the respondent is willing to have examined and treated is not a ground. Only where it cannot be cured, or the respondent refuses examination or treatment, does the petition succeed.
Paragraphs (b) and (c) put the choice in the respondent’s hands. A respondent who cooperates with examination and treatment preserves the marriage; one who refuses cannot then rely on the possibility of a cure.
Note that the court decides what examination is necessary. Medical evidence is central to a petition on this ground, and section 95 restrictions on publication of evidence matter accordingly.
Section 37(2) — the harsh and oppressive bar
(a)(i) the petitioner’s knowledge of the incapacity at the time of the marriage; or
(ii) the conduct of the petitioner since the marriage; or
(iii) the lapse of time; or
(b) for any other reason,
it would, in the particular circumstances, be harsh and oppressive to the respondent, or contrary to the public interest, to make a decree.
The words are “shall not be made” — this is not a discretion to refuse but an obligation once the opinion is formed.
The three named matters are examples; paragraph (b) adds “for any other reason”, and the test extends to the public interest as well as hardship to the respondent.
Knowledge and lapse of time are the two most often relied on. A petitioner who married knowing of the condition, or who lived with the respondent for many years before petitioning, faces a real obstacle — particularly where the respondent has grown old or become dependent.
The same formula — harsh and oppressive to the respondent, or contrary to the public interest — appears in section 25(4) for the separation ground. In both places it is the Act’s mechanism for preventing a technically available decree from producing an unjust result.
If the decree is made
Section 39(1) provides that a decree of nullity of a voidable marriage annuls the marriage from and including the date on which the decree becomes absolute — so the marriage was valid until then.
Section 39(2) provides that the decree does not make illegitimate a child of the parties born since, or legitimated by or during, the marriage. That may seem improbable given the ground, but the provision is general and covers, for example, a child conceived by other means or one legitimated by the marriage under Part VI of the Marriage Act.
The Part VII powers over maintenance and settlement of property remain available, and the decree nisi procedure in sections 58 to 61 applies to a decree of nullity as it does to dissolution.
Sources
- Matrimonial Causes Act (Chapter 282) — ss 17, 21, 25, 30, 35–39, 58–61, 72–79, 95
- Marriage Act (Chapter 280) — ss 22, 51–55
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.