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Annulment of marriage on the ground of non-consummation is incompatible with the Human Rights Act (17 February 2021)

Date: 17/02/2021
Duncan Lewis, Main Solicitors, Annulment of marriage on the ground of non-consummation is incompatible with the Human Rights Act

Duncan Lewis Solicitors is instructed by the respondent wife in nullity proceedings where she seeks a declaration that the law in respect of annulment is incompatible with human rights legislation.

In these ongoing proceedings the wife has been defending her husband’s petition for their marriage to be annulled on the basis that it was not consummated due to the wife’s wilful refusal. The wife cross-petitioned for divorce on the grounds that the marriage has irretrievably broken down as a result of the husband’s unreasonable behaviour.

The case highlights important issues about this area of law. The wife argues that the law is outdated and intrusive with intimate examination of the parties’ private lives required for the court to reach a decision.

The wife, who reports to be a victim of domestic abuse and coercive control, also argues that she could not be considered to have wilfully refused to consummate the marriage because that abuse would ultimately render her unable to deliberately refuse to do so. She argues that the nature of these proceedings, specifically the requirement of the court to examine the intimate physical relationship between the parties, is an extension of that abuse. It is noted on behalf of the wife that victims of domestic abuse cannot apply for annulment on the basis of that abuse.

The wife further argues that it is discriminatory in that the same law does not apply in respect of same-sex couples who cannot seek annulment on the grounds of non-consummation. This places an expectation on different-sex couples to be sexual, in a very specific way defined in law, which is not required of same-sex couples.

The law in respect of annulment on the grounds of non-consummation is outdated and is not fit for modern life where concepts of relationships and families do not necessarily accord with the “traditional” understanding of family life at time these principles were set out.

Counsel, Dr Charlotte Proudman of Goldsmith Chambers is instructed and comments;

“The law is woefully archaic and patriarchal, it needs modernising to bring it up to date with contemporary understandings of marriage and relationships. My concern is that the law can be used by alleged perpetrators to further the abuse of domestic abuse complainants – yet it does not afford the same right to complainants to annul their marriage. This is both discriminatory and a breach of Human Rights.

“These hearings are highly unusual; they are almost unheard of nowadays. Mr Justice Moor said that he had only come across two such cases in around 40 years. For a judge to decide whether a marriage was consummated, they would have to investigate the most intimate and personal details about their sex life. The law is outdated and does not recognise modern marriages. To carry on the view of the law that there is one version of sex, penile penetration, for a marriage to be valid is patriarchal. The law is clearly written from a male perspective. The law needs changing.”

The matter was heard in the Family Division of the High Court on 16th December 2021. The wife’s claim for a declaration that the law is incompatible with Human Rights legislation was dismissed after the husband agreed that the wife’s divorce petition should be granted and his nullity petition was dismissed. The court determined that the wife’s divorce petition should proceed on the basis that the marriage has irretrievably broken down as a result of the husband’s unreasonable behaviour and made a finding that the husband behaved in such a way that the wife cannot reasonably be expected to live with him.

Solicitor Emily Reed comments on the case:

“This is an interesting case which raises important issues about the law and its suitability in the modern world. Not only is the law said to be discriminatory and outdated but unfortunately for these parties, it has also meant that in order for a resolution to be reached intimate details of their private lives had to be aired before the court. Happily for the wife, she can now proceed with her divorce but the issues with the law remain. It is promising for parties and practitioners alike that reform in some areas, including divorce, is expected soon but cases like this demonstrate that there is still more to do on a wider scale to bring family law up to date and fit for modern families.”


Emily Reed, solicitor in the Family and Child Care department in our Manchester office and Counsel Dr Charlotte Proudman of Goldsmith Chambers.

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