No sex, no marriage, rules B.C. judge in rare annulment because husband couldn't maintain an erection

There was a time when couples who claimed their marriages couldn't be consummated were forced to prove they couldn't copulate in front of a jury.

Justice Wendy Baker can be thankful she doesn't live in 17th-century Spain or France. 

The B.C. Supreme Court judge recently granted a Lower Mainland woman an annulment, and the only sheets Baker had to examine were made of paper — the affidavits in which the unhappy couple testified about their inability to have intercourse.

The decision provides a peek behind the curtains of a legal procedure so rare, Statistics Canada doesn't even track the numbers.

Vancouver family and estate lawyer Amanda James says she handles requests for divorce on a daily basis, but she's never had to help a client secure an annulment — much less prove one half of the union wasn't up to their so-called "marital duties."

"It's so rare. Annulments are the exception, not the norm," says James, who blogged about the B.C. case.

"I think people have this misconception that if you're married for only a quickie in Vegas, you can just get an annulment ... It's far easier to get an uncontested divorce."

Sex on trial behind 'thin paper screens'

As opposed to divorce, an annulment is essentially a declaration a marriage never existed.

James says a claimant might seek an annulment on the grounds they were forced to wed against their will, or didn't have the capacity to enter into a marital contract. But absent those grounds, the marriage bed is the only other place to look for excuses.

In the case before Justice Baker, the woman wanted her marriage voided for religious reasons. She claimed her husband couldn't maintain an erection.

The judge's ruling delves into the history of annulment — specifically, the burden of proof needed to establish a marriage really can't be consummated. 

It has changed a lot through the years.

"In the 17th century, trials by congress were undertaken by the Spanish and French courts," Baker noted. "The act of copulation was attempted before a jury of medical professionals and others."

According to a Paris Review article, the trials Baker referred to involved couples having sex in semi-private quarters, while close family, legal observers and doctors awaited nearby.

"In some accounts, all that shrouded the copulating pair were thin paper screens; in others the small crowd gathered  behind a half-open door or in an antechamber," the article says.

"The entire trying event lasted roughly two hours, punctuated by the kind of bickering achievable only by two people in hate."

'I guess I am not man enough for her'

Before 1857, only ecclesiastical courts dealt with annulments, but they have since become the domain of civil courts of common law.

The legal precedents around annulment in Canada appear to have come as a result of episodes in some of the nation's chilliest bedrooms. 

In a 1937 case, a Peterborough couple spent the first four nights of their marriage in the same bed in the husband's parents' home before the husband tried anything. The wife said he made three or four attempts at intercourse, "but on no occasion was he able to do so, although she was willing."

In 1947, another Ontario judge refused to grant an annulment despite a doctor's confirmation that a woman was "virgo intacta" and testimony that her husband had told his father, "I guess I am not man enough for her."

Decades ago, Baker said, judges wouldn't grant an annulment if there was a possibility the incapacity to consummate a marriage might be cured or terminated.

"I am satisfied the extremely strict standard of proof required in earlier centuries resulted from an apparent horror of impotency within the cultural norms of those times," she said. "I am not satisfied that this extremely strict standard of proof is necessary or appropriate today."

As such, Baker said it wouldn't be necessary for the husband in the B.C. case to submit to a medical exam to prove he couldn't maintain an erection "so as to achieve sexual penetration, and the consummation of their marriage."

A new girlfriend and 'regular sexual intercourse'?

The B.C. couple were married in August 2018, after attending counselling sessions at the Chinese Alliance Church, where the woman said her husband-to-be never let on that sex might be an issue.

From the date of their marriage until March 2019, they attempted sexual intercourse each month — though the couple differ on how many times a week, and who was most willing to try.

Regardless, Baker found, nothing happened.

The couple stopped living together after the woman asked her husband to see a doctor, who ended up assuring them both there was "nothing wrong" with the man.

According to the judge, the man blamed the woman for their failure to consummate and even claimed that "he has a new girlfriend, and they have sexual intercourse regularly."

The new girlfriend gave no evidence as to his alleged sexual prowess.

James says she finds the case fascinating, noting that law is made at the "intersection of very strange sets of facts."

"I always love seeing these decisions, because it kind of tests the limits of the law and where they lie," she says.

"One thing I like about family law is to look through the veneer. It doesn't matter how fancy your car is or how fancy your house is — people are still people at the end of the day."