In a previous blog, we discussed the narrow list of reasons for which an annulment will be granted in the province. Among the reasons was the fact that one or both spouses in the marriage was unable to consummate the marriage. While non-consummation of a marriage is one of the factors determining eligibility, it should be noted that the phrase ‘unable to’ is key. A court will not grant an annulment simply due to the fact that the parties involved did not enter into a sexual relationship after marriage. As a recent case demonstrates, the parties will be required to show that there was a physical or psychological explanation for the lack of sexual contact and not simply a refusal.
The province has created a specific and narrow list of reasons for which an annulment will be granted. As set out by the provincial government, annulments are rare, and limited to the following circumstances:
The parties were together romantically for six years prior to getting married in January 2019. While dating and cohabitating, the couple was sexually intimate. At some point in the relationship, the couple agreed to allow both parties to engage in sexual relationships with other people outside the relationship. During this time, the wife began a regular sexual relationship with another partner out of the province, which the husband was aware of.
In 2014, the wife was injured in a car accident to the point where her activities became more limited. The husband claimed that these injuries had a negative effect on her willingness/ability to participate in sexual intercourse, but the wife disputed this. The pair got engaged in 2017 and married in January of 2019. Both parties agreed that they had last engaged in intercourse six months earlier, in July 2018.
In April 2019, the pair separated. The wife filed a Statement of Claim for Divorce a few months later, and in response, the husband filed an Application for Annulment, alleging that the wife was incapable of consummating the marriage due to psychological disability.
In order to grant an annulment for non-consummation of marriage, the court required evidence of the fact that the wife was incapable of sexual intimacy, and not simply unwilling to engage. The judge stated:
The case law indicates that a marriage can be annulled for non-consummation only if there is an incapacity to consummate springing from physical or psychological limitations beyond the control of the refusing party. It is not sufficient that there is a conscious refusal to engage in sexual relations.
While the husband claimed the lack of intimacy stemmed from the psychological fallout of the wife’s 2014 accident and the resulting medication she had been taking, the wife disagreed.
The husband pointed to a psychological report the wife had submitted to when taking time off of work in 2017. The report showed the wife had elevated scores for obsessive-compulsive disorder, phobic anxiety and paranoid ideation. Notably, the report did not make any claims with respect to the wife’s ability to engage in a sexual relationship.
Ultimately, the court found that the husband failed to establish the couple’s lack of sexual intimacy could be attributed to a psychological ‘disorder’, stating:
The onus is on [the husband] to establish a link between a decline in sexual intimacy and those alleged psychological issues. He has failed to do so. Neither has [the husband] established that failure to engage in sexual activities was a function of the medications [the wife] was taking…In my view, [the husband] mistakenly characterizes [the wife]’s unwillingness to have sex with him as an inability to do so. While [the wife] certainly seems to have lost interest in having sex with [the husband], that does not mean she was unable to do so. The case law is clear that willful refusal is not grounds for annulment.
The court ultimately concluded that the husband was attempting to change the ‘legal consequences’ of marrying his wife by applying for an annulment without due cause. As a result, the court refused his application.
When a relationship breaks down, the lawyers at Mincher Koeman aim to ensure that our clients are steered towards the most efficient and cost-effective resolution. We will treat your matter with empathy and skill, putting our considerable experience to work for you. Please contact our office to make an appointment to discuss your matter with one of our lawyers today by calling us at 403-910-3000 or by contacting us online.
707 7 Ave SW #1300,
Calgary, AB T2P 3H6
© Mincher Koeman LLP 2023. All rights reserved.
Website designed and managed by Umbrella Legal Marketing