Consummation and the validity of marriage: X (A Child: foreign surrogacy)

Is consummation necessary to render a marriage valid? “Yes”, assumed non-specialist ignoramuses (like me): “No”, says the President of the Family Division.

In X (A Child: foreign surrogacy) [2018] EWFC 15, Sir James Munby P had been asked to make a parental order in accordance with s.54 of the Human Fertilisation and Embryology Act 2008, which requires that the applicants “must be … husband and wife”.

In a very brief judgment, he explained the situation like this:

“6. … The applicants were married but one of them is, as the other has always known, gay, and their relationship and marriage is thus … platonic and not romantic. Does this in any way affect their ability to satisfy the requirement of section 54(2)(a)? The answer, in my judgment, is a plain and unequivocal, No. [emphasis added].

7. The marriage, which took place in this country, complied with all the requirements of the Marriage Act 1949. There is … no ground upon which the marriage could be declared voidable, let alone void. There can be no question of the marriage being a sham. In short, the marriage is a marriage. The fact that it is platonic, and without a sexual component, is, as a matter of long-established law, neither here nor there and in truth no concern of the judges or of the State. … [I]t is really none of our business. As the first Elizabeth put it, we should not make windows into people’s souls.”

At [8], he made reference to the traditional position in canon law in support of his conclusion:

“A sexual relationship is not necessary for there to be a valid marriage. The law was stated very clearly, if in Latin (for the use of which I apologise), by Sir James Wilde in A v B (1868) LR 1 P&D 559, 562: ‘The truth is, consensus non concubitus facit matrimonium.’ The law has always recognised that a couple may take each other as wife and husband tanquam soror vel tanquam frater (as sister and brother), as our ancestors would have put it, applying the canonists’ maxim.”

S.12 (Grounds on which a marriage is voidable) of the Matrimonial Causes Act 1973 – in relation to decrees of nullity – provides, inter alia that:

“(1) 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;..”

But the issue only comes into play if one party seeks a decree. And s.13 (Bars to relief where marriage is voidable) provides that:

“(1) The court shall not, in proceedings instituted after 31st July 1971, grant a decree of nullity on the ground that a marriage is voidable if the respondent satisfies the court-

(a) that the petitioner, with knowledge that it was open to him to have the marriage avoided, so conducted himself in relation to the respondent as to lead the respondent reasonably to believe that he would not seek to do so; and

(b) that it would be unjust to the respondent to grant the decree.”

S.13(1)(a) would appear to apply to the situation of the couple in X (A Child: foreign surrogacy). (And, in any event, a third party may not seek a petition to annul someone else’s marriage.)

Sir James’s reference to “the canonist’s maxim” is a reminder that consummation is also a factor in the current Roman Catholic canon law on marriage, as explained by Cathy Caridi in Canon Law and Consummating a Marriage, which explores the implications of Can. 1061 §1 CIC. Importantly, she points out that in dissolving a marriage on the grounds of ratum sed non consummatum [valid but not consummated], though the marriage is held to be valid [ratum] it is not indissoluble.

The issue of nullity was also a live issue for the Church of England as late as the 1950s. In 1949, at the request of the Convocations, the Archbishops of Canterbury and York established a Commission which reported in 1955 on The Church and the law of nullity of marriage. For a contemporary report of the issues – at least from an Evangelical perspective – see Nullity: a paper read at the Oxford Conference of Evangelicals in 1956 by the then Bishop of Rochester, Christopher Chavasse, who seemed to be particularly concerned about the possibility of nullity being used to facilitate what he described as “bogus divorce”. See also the Law Commission’s report, Family Law: Report on Nullity of Marriage (Law Com No 33), especially para 24.

Cite this article as: Frank Cranmer, "Consummation and the validity of marriage: X (A Child: foreign surrogacy)" in Law & Religion UK, 19 March 2018, http://www.lawandreligionuk.com/2018/03/19/consummation-and-the-validity-of-marriage-x-a-child-foreign-surrogacy/

3 thoughts on “Consummation and the validity of marriage: X (A Child: foreign surrogacy)

  1. This is curious. All the other grounds of voidability are factors subsisting at the time of marriage (except gender reassignment, though this presumes a pre-existing factor), so can be readily proven. What ‘conduct’ does 13(1)(a) envisage – a promise never to seek nullity? sharing a bed? entering into contracts as husband and wife? And why can the respondent not change his/her mind at some stage down the line? What is the purpose of this sub-section? Is there any case law?

    • It struck me as curious as well – but there’s no arguing with the President of the Family Division.

      My underlying assumption is that the law goes something like this. If two people of opposite sexes marry in the knowledge that one or both are gay/lesbian, then neither can petition for nullity on grounds of non-consummation on the basis that he or she knew (or should have known) that the other party did not intend to consummate the marriage. But I’m not a family law specialist.

  2. Interesting case.

    As a footnote, there was a time when the Christian Church taught that celibacy in marriage was preferable.

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