The Gazette 1976

GAZETTE

JUNE/JULY 1976

No medical evidence available to sustain case His failure to consummate the marriage would seem to have been a part of the revulsion she claimed he said he had for her. The court had no medical evidence, or other expert evidence, to identify the psychological, or other factors, that produced the husband's condition, but the condition itself, seemed to have been one of sexual impotence in relation to the wife during the period they lived together, osten- sibly, .as housband-and-wife. That being so, the matrimonial law governing the position was not in doubt. Where a husband, while not generally impotent, was unable to consummate the marriage be- caus of impotence vis-a-vis his wife, that was a good ground in the civil courts for an annulment of the mar- riage at the suit of the wife. Mr. Justice Henchy referred to C. v. C. (1921) p. 399 in which Lord Birkenhead reviewed the authorities, showing the civil law to be to that effect, and pointed out that, in the Ecclesiastical Courts, both before and after the Council of Trent, the doctrine of the Church idmitted and, indeed, enjoined nullity on such a ground. In fact, the wife here had ob- tained a declaration of nullity in an ecclesiastical court. In his judgment, the order on this petition should be to the same effect. He would allow the appeal and issue a decree of nullity. Mr. Justice Griffin, who agreed with the judgment of Mr. Justice Henchy, in his judgment, said the law applicable in this case was that administered by the old Ecclesias- tical Courts, the jurisdiction of which was now vested in the High Court. The wife, would, in the circum- stances of this case, under that law, clearly be entitled to have the mar- riage annulled. Mr. Justice Kenny agreed. The court made no order as to costs.

the arrangements were too far ad- vanced, and he was too much of a coward to break off the engage- ment. What the wife discovered after the marriage was that, some weeks before the marriage, he had met the woman with whom he had since gone to live .The wife learned from him that, both before and after the marriage, he had sexual intercourse with the other woman. According to the wife, he claimed to have spent the night before the marriage with the other woman, and to have had sexual intercourse with her that night. Mr. Justice Henchy said it ap- peared to be the fact that, shortly after returning from the honey- moon, the man started to go out at night with other women. He admitt- ed to the wife that he was in love with the other woman. Before he turned his back on this pseudo- marriage in January, 1970, by leav- ing to go off to live with the other woman, he disclosed that the other woman had been expecting a child by him, and had just then "lost it in England". In the High Court, the case for the wife was put on the basis that she had been induced, by fraud, to marry the husband. The trial judge rejected that submission; so would he. In the Supreme Court, the wife's ease had been argued, primarily, on the basis that the marriage should be annulled because of the hus- band's sexual impotence vis-i-vis her. The husband had not taken any part in the proceedings, so they had only the wife's version of things. The trial judge had not questioned her veracity. Mr. Justice Henchy said he found the evidence cohesive of the conclusion that, while the husband's failure to consummate the marriage was not due to any general sexual incompetence, it was the result of an obliteration of his sexual capac- ity with her, from the time of the marriage or, possibly, from the time shortly before the marriage, when he became intimate with the other woman. This incapacity would seem to have been a corollary of his at- tachment to the other woman.

to consummate the marriage. A second ground was the husband's incapacity to consummate the mar- riage by reason or some mental, or physical condition. The second ground was relied on, almost exclusively, at the hearing of the appeal. Short-lived union Mr. Justice Henchy, in his judg- ment, said that the short-lived union between the parties, in this case, was but a marriage, in name, only. It did not seem to have been sup- ported by any emotional, or other affinity, on the part of the husband. The marriage took place in July, 1969. They had met two years ear- lier at a dance. The friendship that sprang up between them ripened quickly into intimacy. For a year- and-a-half they went out together every night of the week. Then, for six months before the marriage, they saw each other every night of the week, except Tuesday and Thursday, omitting those nights, be- cause they felt they were seeing loo much of each other. They also went away on camping week-ends. There was nothing in the evidence to suggest any lack, on his part, before the marriage, of emotional, or sexual commitment to her. Cold and unaffectionate husband The marriage proved a sad anti- climax for the wife. As a husband, he turned out to be cold, unaffec- tionate, alienated. The marriage was never consummated. Mr. Justice Henchy said the couple had an eight-day honey- moon, but although they slept in the same bed, the man showed a total sexual disinterest in her. It was the same story when they returned from the honeymoon to the flat, where they slept in the same bed. For six months they lived to- gether in disharmony, and then he left her, for good. His sexual disin- terest in. her was, apparently, no perverse affection. Shortly after the marriage, he told her that he had no affection for her, that in fact, she revolted him; that he had no interest in founding a family; that the marriage was a mistake; that the only reason he went through with it was because

S. v. S. — Supreme Court (Henchy, Griffin and Kenny J.J.) — un- reported — 30th June, 1976.

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