Judge Allows Annulment Because Husband Couldn't Keep Erection

A Canadian judge has annulled a marriage because the husband was unable to maintain an erection long enough to have sex.

The recent Supreme Court of British Columbia decision details how a wife sought out the annulment because her husband was unable to consummate their marriage, despite their attempts to have sex every month for almost a year after their wedding in August 2018. 

In B.C., “a marriage is voidable where a claimant has established their spouse lacks the capacity to consummate the marriage,” the decision says.

The pair never had sex and stopped living together in September 2019. 

The man “does not dispute the fact that at no time in the marriage was he able to maintain an erection and achieve penetration,” the decision says.

To obtain an annulment on the grounds of failed consummation, at least one spouse needs to be incapable of having sex broadly “due to a physical or psychological incapacity” within the marriage. Whether the impotent person is able to have sex with others doesn’t influence the case.

The husband told the court he blames his now former wife for his impotence and is currently having sex with someone else.

“The respondent deposes that he has a new girlfriend, and they have sexual intercourse regularly,” the decision states, adding there was no evidence to confirm whether this is true.

Because divorces are easily accessible, annulment is rare now. But the wife pursued an annulment for religious reasons, according to the decision. A divorce legally acknowledges a marriage happened, but an annulment wipes the slate clean—it’s as if the couple was never married to begin with.

“Ecclesiastical courts”, or religious courts, used to have authority over such disputes. But in 1857, common law courts took over jurisdiction. 

The amount of evidence needed to prove impotence has relaxed over time. Historically, the bar for establishing that a partner was unable to consummate a marriage ranged from forcing spouses to attempt the deed in front of decision-makers to proving impotence was permanent and incurable.

“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,” wrote Justice Wendy Baker, who decided the case. “I am not satisfied that this extremely strict standard of proof is necessary or appropriate today.”

Similar cases have taken place across Canada, even though they’re rare. In 2019, the Ontario Superior Court of Justice granted a couple an annulment after a husband claimed his wife’s anxiety prevented them from having sex. 

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