Baxter v Baxter: PC 1947

The House considered whether a wife who insisted that her husband always used a condom was thereby guilty of a wilful refusal to consummate the marriage within the meaning of section 7(1)(a).
Held: She was not, for a marriage may be consummated although artificial methods of contraception are used. As to Firth v Firth, Viscount Jowitt LC said: ‘Long before the passing of the Matrimonial Causes Act 1937, it was a matter of common knowledge that reputable clinics had come into existence for the purpose of advising spouses on what is popularly called birth control, and (with all respect to a dictum to the opposite effect by the late Langton J in the unreported case of Firth v Firth) it is also a matter of common knowledge that many young married couples agree to take contraceptive precautions in the early days of married life.’
Viscount Jowitt LC quoted with approval a passage in Lord Stair’s Institutions: ‘It seems to me that the true view of the matter is expressed in Lord Stair’s Institutions, 1681 ed, book I, tit 4, para 6. That learned and distinguished author put the matter thus: ‘So then, it is not the consent of marriage as it relateth to the procreation of children that is requisite; for it may consist, though the woman be far beyond that date; but it is the consent, whereby ariseth that conjugal society, which may have the conjunction of bodies as well as of minds, as the general end of the institution of marriage, is the solace and satisfaction of man.’ I am content to adopt these words as my own.’
Viscount Jowitt LC
[1948] AC 274, [1947] 2 All ER 886
Matrimonial Causes Act 1937
England and Wales
CitedFirth v Firth 25-Jun-1941
Langton J said: ‘[Counsel] said that it was a matter of common knowledge that young people, for a period, at any rate, after their marriage had intercourse only with the intervention of contraceptives. On this part of his common knowledge I can only . .

Cited by:
CitedRegina (Smeaton) v Secretary of State for Health and Others Admn 18-Apr-2002
The claimant challenged the Order as regards the prescription of the morning-after pill, asserting that the pill would cause miscarriages, and that therefore the use would be an offence under the 1861 Act.
Held: ‘SPUC’s case is that any . .
CitedX City Council v MB and others; re MAB FD 13-Feb-2006
The adult patient was autistic. The doctors said that he lacked capacity, and the authority sought to prevent his return to Pakistan with, they thought, a view to being married. . .
CitedMaclennan v Maclennan SCS 10-Jan-1958
. .

Lists of cited by and citing cases may be incomplete.
Updated: 22 August 2021; Ref: scu.223712