Husband and Wife – Constitution of Marriage – Nullity of Marriage – Impotency.
Nullity of Marriage – Presumption – Three Years’ Cohabitation.
Personal Bar – Incontinence of Spouse seeking Remedy.
A man of 49 married a woman of 20, and they cohabited for twenty months, occupying the same bed nearly all that time, and then separated finally. During their cohabitation no sexual intercourse took place, though the man had unsuccessfully attempted it during the first two months, and then desisted, owing, as he alleged, to the wife’s coldness and lack of affection for him. In an action of declarator of nullity of marriage at her instance, on the ground of his impotency, it was proved that there was no malformation or sign of ill-health in him. No evidence from a physical examination of the wife was available in the circumstances of the case. The House ( aff. judgment of Second Division) held that on a consideration of the proof the whole facts and circumstances showed that the non-consummation of the marriage was due to impotency on the part of the man, and gave decree of nullity of marriage accordingly.
The doctrine of the Canon law that impotency will be presumed from non-consummation during a cohabitation of three years has not been followed in Scotland. Assuming it to be applicable, it is merely presumptive evidence, and other evidence may be adduced and founded on where there has not been such cohabitation as to raise it.
The action before the House was not raised till after the wife had given birth to an illegitimate child, and had been served with an action of divorce, to which it was raised as an answer. Held that she was not barred from raising the action, and that there is no doctrine of ‘sincerity’ requiring it to be shewn that the only motive for raising the action is the existence of the impotency complained of.
Judges:
Lord Chancellor, Lords Watson, Bramwell, and Fitzgerald
Citations:
[1885] UKHL 461, 22 SLR 461
Links:
Jurisdiction:
Scotland
Family
Updated: 05 July 2022; Ref: scu.637750
