In S.Z. v X.J. 2020 BCSC 1336 an annulment was granted on the grounds that the marriage had not been consummated, and could not be consummated due to the respondent’s impotence.
An annulment was brought instead of a divorce by reason of religious grounds.
An action for annulment must be based on facts which existed as at the date of the marriage, and not fax that arose only after the date of the marriage, and in the latter the remedy for the claimant is an order for divorce.
The petitioner alleged that the marriage contract, which she entered into with the respondent is void as a result of his inability to complete an essential implied term of the contract, namely engaging in sexual intercourse.
In C. v L. 2003 BCSC 1461 the court reviewed the law relevant to an action for annulment on the grounds of a failure to consummate.
That decision confirmed that in such a common-law action remains available in British Columbia.
The onus is on the claimant to establish that one or both of the parties is incapable of engaging in sexual intercourse to do a physical or psychological capacity.
The impotence need not be a general incapacity to engage in sexual intercourse, but can be with respect to the particular spouse only.
In Jones v . Jones (1948) OR 22, the court concluded that there was no rule which required a defendant to give evidence contrary to the evidence of the claimant. If the claimant present sufficient evidence to satisfy the court that her husband was incapable, and the court is satisfied that such evidence is bona fide and true, the order should be allowed.
The claimant is not required to obtain medical evidence of the respondent’s incapacity in order to establish the claim.
The evidence established that the marriage was never consummated due to the inability of the respondent to maintain an erection. They attempted sexual intercourse each week for approximately 8 months, but were unable to have sexual intercourse. The claimant asked the respondent to see a doctor, but the respondent failed to do so.
The respondent deposed that he had a new girlfriend and they have sexual intercourse regularly. There was no evidence from the girlfriend. The court found that that evidence was largely irrelevant as it did not contradict the claimant’s evidence that he was incapable of having sexual intercourse with her.