Sex in history, by Gordan Rattray Taylor

ANNULMENT AND DIVORCE: Despite a number of recent modifications, the law remains chaotic where it touches annulment and divorce. In several respects, mediaeval notions are retained, often in a way which stultifies their original intention without bringing them into line with modern ethical conceptions.

The very distinction which is made between annulment and divorce defects the mediaeval concept that the sexual act is necessary to make a marriage. A marriage may be annulled for wilful refusal to consummate or for the inability of the male to consummate (impotence). It must not be supposed that the reason for this is to permit a healthy sexual relationship, for consummation need occur only once in married life, and, once performed, permanently changes the situation. It is quite clearly still a magical act — despite the dictum that consent alone makes marriage.

At the same time, the mediaeval view that the object of marriage is procreation, although often repeated by judges even now, is not in fact expressed in the law, since neither annulment nor divorce is granted on the grounds that either party is sterile, or where one party insists on using contraceptives or practising coitus interruptus against the will of the other. The decision that a marriage is to be regarded as consummated even where contraceptives are used, and against the will of one partner, dates from 1947, when the House of Lords ruled in this sense, reversing the law as previously understood.

On the other hand, the law does not consistently support the alternative view that one of the purposes of marriage is “the relief of concupiscence“, since, although it concedes divorce for impotence, it provides no redress in cases where one partner consistently refuses intercourse to the other — though it has been ruled that a spouse may live apart from his or her partner in such a case without becoming liable for a suit for desertion, provided that he or she is always willing to return whenever the partner feels disposed to permit intercourse.