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Marriage Annulment For Non-Consummation

Marriage Annulment For Non-Consummation

An Ontario decision Razavian v Tajik 2019 BCSC 5662 granted an annulment of a marriage by reason of a bride’s refusal to have sex with her new husband due to crippling anxiety on her part, thus the marriage was unconsummated.

Since the advent of the Divorce Act in the late 60’s, and the allowance of ” one year separate and apart” as a grounds of divorce, annulments have become increasingly rare, particularly based upon lack of consummation.

Upon reflection, it occurred to me that an occasional fact pattern in estate litigation is the bedside marriage to someone who is mentally or physically infirmed, or terminally ill, or any combination thereof, all to the extent that he or she is incapable of consummating the marriage.

The decision could be noteworthy in the attempt to reduce elder abuse, including marriage where one party is not sufficiently competent to truly understand the nature of marriage.

The fact that the court found that a marriage could be annulled by reason of non-consummation when it is due to a physical inability to consummate the marriage, rather than a deliberate intention is a necessity for a valid marriage.

While this is an Ontario case I believe the case law reviewed in the decisions would be followed in British Columbia. The statute in Ontario is known as the Annulment of Marriage act.

It is clear from the authorities that nonconsummation must be as a result of incapacity or inability to consummate, rather than a flat refusal to do so.

The principles were discussed in detail in the decision in Khan v Mansour 1989 ONSC 4341 , which stated that

“the impediment to consummation must be such as to render complete intercourse in practicable. The rate mere refusal to consummate a marriage due to obstinacy or caprice, is not a ground for annulment. However, nonconsummation refusal to consummate, depending upon the circumstances, the service evidence from which an inference of capacity can reasonably be drawn .”

In 1948 Supreme Court of Canada decision Heil v Heil three SCC 160 stated:

“ It would seem that it is now an accepted principle of the law that if, in an action for annulment of marriage and the ground of nonconsummation

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