08 December 2012


The UK Government appears to have followed the path of discretion in deciding that courts will be left to deal with questions about consummation in the recognition of same sex marriage.

In Australia there is no requirement under the Marriage Act 1961 (Cth) for consummation. Section 23B of that statute identifies 'Grounds on which marriages are void'  -
 (a) either of the parties is, at the time of the marriage, lawfully married to some other person; 
(b) the parties are within a prohibited relationship; 
(c) by reason of section 48 the marriage is not a valid marriage; 
(d) the consent of either of the parties is not a real consent because: 
(i) it was obtained by duress or fraud; 
(ii) that party is mistaken as to the identity of the other party or as to the nature of the ceremony performed; or 
(iii) that party is mentally incapable of understanding the nature and effect of the marriage ceremony; or 
(e) either of the parties is not of marriageable age; and not otherwise.
The Family Court accordingly advises that
The Court may declare a marriage invalid on the following grounds:
  • At the time the parties were married, one of them was married to someone else. 
  • The parties are in a prohibited relationship. 
  • The parties did not comply with the laws in relation to the marriage in the place they were married. 
  • Either party was not of a legal age to marry. 
  • Either of the parties did not give their real consent to the marriage because: consent was obtained by duress or fraud, one party was mistaken as to the identity of who they were marrying or the nature of the ceremony, one party was mentally incapable of understanding the nature and the effect of the marriage ceremony.
The Court will NOT declare a marriage invalid on the following grounds:
  • Non-consummation of the marriage 
  • Never having lived together 
  • Family violence or 
  • Other incompatibility situations. 
In the UK the Matrimonial Causes Act 1973 provides that a marriage can be annulled if one of the couple has the incapacity to consummate it, or a man or woman has wilfully refused to do so.

Specifically section 12 states that
A marriage celebrated after 31st July 1971 shall be voidable on the following grounds only, that is to say—
(a) that the marriage has not been consummated owing to the incapacity of either party to consummate it; 
(b) that the marriage has not been consummated owing to the wilful refusal of the respondent to consummate it; 
(c) that either party to the marriage did not validly consent to it, whether in consequence of duress, mistake, unsoundness of mind or otherwise; 
(d) hat at the time of the marriage either party, though capable of giving a valid consent, was suffering (whether continuously or intermittently) from mental disorder within the meaning of  the Mental Health Act 1983 of such a kind or to such an extent as to be unfitted for marriage; 
(e) that at the time of the marriage the respondent was suffering from venereal disease in a communicable form; 
(f) that at the time of the marriage the respondent was pregnant by some person other than the petitioner; 
(g) that an interim gender recognition certificate under the Gender Recognition Act 2004 has, after the time of the marriage, been issued to either party to the marriage; 
(h) that the respondent is a person whose gender at the time of the marriage had become the acquired gender under the Gender Recognition Act 2004
In English common law consummation involves vaginal penetration, with courts historically endorsing Dr Lushington's differentiation in D E v  A G (1845) 163 ER 1039 between "ordinary and complete intercourse" (ie "the proper meaning of the term") from "partial and imperfect intercourse" even if they didn't embrace the good doctor's explanation that without the power to consummate "neither of the two principle ends of matrimony can be attained, namely a lawful indulgence of the passions to prevent licentiousness, and the procreation of children, according to the evident design of Divine Providence". 

It appears that the UK Government has decided to make same-sex marriage a mirror of opposite-sex marriage except for the religious ceremony, leading some observers to speculate that validity will be dependent on  consummation.

What's consummation, given that not all LGBTIQ people embrace the hetero penetration model?

Lushington stated that
… difficulty lies in the meaning of the term " sexual intercourse." How is it to be defined? This is a most disgusting and painful inquiry, but it cannot be avoided. 
Sexual intercourse, in the proper meaning of the term, is ordinary and complete intercourse; it does not mean partial and imperfect intercourse; yet, I cannot go to the length of saying that every degree of imperfection would deprive essential character. There must be degrees difficult to deal with; but if so imperfect as scarcely to be natural, I should not hesitate to say that legally speaking, it is no intercourse at all. I can never think that the true interests of society would be advanced by retaining within the marriage bonds parties driven to such disgusting practices. Certainly it would not tend to the prevention of adulterous intercourse, one of the greatest evils to be avoided. … 
In this difference, I think, lies the true distinction. If there be a reasonable probability that the lady can be made capable of a vera copula of the natural sort of coitus, though without power of conception I cannot pronounce this marriage void. If, on the contrary, she is not and cannot be made capable of more than an incipient, imperfect, and unnatural coitus, I would pronounce the marriage void. 
I will very briefly state my reasons. In the case first supposed, the husband must submit to the misfortune of a barren wife, as much when the cause is visible and capable of being ascertained, as when it rests in uudiecoverable and unascertained causes. There is no justifiable motive for intercourse with other women in the one case more than in the other. But when the coitus itself is absolutely imperfect, and I must call it unnatural, there is not a natural indulgence of natural desire; almost of necessity disgust is generated, and the probable consequences of other connexions with men of ordinary self control become almost certain. I am of opinion that no man ought to be reduced to this state of quasi unnatural connexion and consequent temptation, and, therefore, I should hold the marriage void. The condition of the lady is greatly to be pitied, but on no principle of justice can her calamity be thrown upon another.