Court Cases & Orders

Did Husband’s Impotence Serve to Annul Marriage? B.C. Court Says “Yes”

Written by Russell Alexander ria@russellalexander.com / (905) 655-6335

Did Husband’s Impotence Serve to Annul Marriage? B.C. Court Says “Yes”

Under long-established Canadian laws spanning more than 150 years, a marriage could be “annulled” (i.e. declared legally voidable) where one of the spouses could claim the other was incapable of consummating the marriage.  The reason could be either psychological or physical; all that mattered was that one spouse was incapable of engaging in sex on the date of marriage or anytime afterward.

In a recent B.C. case, the court was asked to apply those long-established laws to annul a marriage between a wife and the husband, on the basis that the marriage had never been consummated due to the husband’s impotence.   It seems the wife wanted an annulment – rather than a divorce – for religious reasons. She and the husband had not lived together for about a year, and neither of them wished to be married to each other any longer.

The B.C. court was accordingly asked to determine the legal question of whether, on the evidence, the wife had satisfied the burden of establishing that the marriage contract she entered into with the husband was void due to his “inability to complete an essential term of the contract, namely engaging in sexual intercourse.”

In terms of meeting the threshold test, the court offered some interesting legal history on the quality of the evidence needed:  For 17th century trials proceeding before the French and Spanish courts, for example, the act of copulation had to be attempted before a jury of medical professionals before impotency could be proven.  There was also Canadian legal precedent to suggest that the impotency had to be considered permanent; if there was a possibility that it could be “cured”, then the marriage would not be annulled in law.

However, the B.C. court concluded that these onerous thresholds were no longer in-step with the modern-day approach, which called for a lower evidentiary standard.  The court said:

I am satisfied that the extremely strict standard of proof required in earlier centuries resulted from an apparent horror of impotency within the cultural norms of those times.  I am not satisfied that this extremely strict standard of proof is necessary or appropriate today.

Contemporary law required only that the wife establish that one or both of them were incapable of engaging in sexual intercourse due to a physical or psychological incapacity.   With this test in mind, the court tendered evidence, which consisted of affidavits from both parties.

First, the court rejected the wife’s suggestion that the husband should be ordered to submit to a medical examination to determine his ability to maintain an erection. The court noted the husband had never actually refuted his wife’s allegations as to his impotency, and there was already sufficient evidence in the affidavits for the court to be able to make a ruling.

Next, the court catalogued some of the relevant aspects of the spouses’ relationship:  They had never lived together prior to getting married.  As newlyweds, they tried to have sex about twice a week for more than six months, but each time the husband was unable to obtain or maintain an erection to allow penetration.  The wife asked him to see a doctor, but he kept putting it off.  Eventually, one doctor told the husband there was nothing wrong with him, and he refused to get a second opinion.  The couple stopped living together a few months later.

In the end, and based on this evidence, the court ruled that the wife had sufficiently established her claims that the husband was unable, for physical or psychological reasons, to consummate the marriage on the marriage date, nor at any time subsequently.

(This was despite the husband’s affidavit evidence that he now had a new girlfriend, with whom he claimed to have sex regularly.  The court noted this did not contradict the wife’s evidence that the husband was unable to have sexual intercourse with her.)

The court declared the marriage contract between the wife and husband to be null and void.

For the full text of the decision, see:

S.Z. v X.J, 2020 BCSC 1336

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About the author

Russell Alexander

Russell Alexander is the founder of Russell Alexander Collaborative Family Lawyers and is the firm’s senior partner. At Russell Alexander, our focus is exclusively family law, offering pre-separation legal advice and assisting clients with family related issues, including: custody and access, separation agreements, child and spousal support, division of family property, paternity disputes, and enforcement of court orders. We have locations in Toronto, Markham, Whitby (Brooklin), Lindsay, and Peterborough.

For more information, visit our website, or you can call us at: 905-655-6335.