There was a time when couples who claimed their marriage could not be consummated were forced to prove that they could not mate in front of a jury.
Judge Wendy Baker can be thankful that she did not live in Spain or France in the 17th century.
The British Columbia Supreme Court judge recently granted an annulment to a woman from the Lower Mainland, and the only sheets Baker had to review were paper – the affidavits in which the hapless couple testified to their inability to have births. sexual relations.
The ruling gives a behind-the-scenes look at a legal process so rare that Statistics Canada is not even keeping track of the numbers.
Vancouver family and estates attorney Amanda James says she handles divorce applications daily, but has never had to help a client get an annulment – let alone prove that half the union was not living up to its so-called “marital duties.”
“It’s so rare. Cancellations are the exception, not the norm,” says James, who blogged about the BC case.
âI think people have this misconception that if you’re married for just a little bit in Vegas, you can just get an annulmentâ¦ It’s a lot easier to get an uncontested divorce.â
Sex on trial behind “thin screens of paper”
Unlike divorce, an annulment is essentially a declaration that a marriage never existed.
James says a plaintiff could seek an annulment on the grounds that he was forced into marriage against his will or lacked the capacity to enter into a matrimonial contract. But in the absence of these grounds, the marital bed is the only other place to look for excuses.
In the case before Judge Baker, the woman wanted her marriage annulled for religious reasons. She claimed that her husband could not maintain an erection.
The judge’s decision looks at the history of the annulment – in particular, the burden of proof necessary to establish a marriage really cannot be consummated.
It has changed a lot over the years.
“In the 17th century, congressional trials were conducted by the Spanish and French courts,” Baker noted. “The act of lovemaking was attempted before a jury of medical professionals and others.”
According to a Paris Review article, the trials Baker was referring to involved couples having sex in semi-private premises, while close family, legal observers and doctors waited nearby.
“In some accounts, all that enveloped the mating couple were thin paper screens; in others, the small crowd gathered behind a half-open door or in an anteroom,” the article reads.
“The whole grueling event lasted about two hours, punctuated by the kind of feuds that can only be done by two hateful people.”
“I guess I’m not a man enough for her”
Prior to 1857, only ecclesiastical courts dealt with cancellations, but they have since become the domain of ordinary civil courts.
Legal precedents for cancellation in Canada appear to be the result of episodes in some of the coldest chambers in the country.
In a 1937 case, a Peterborough couple spent the first four nights of their marriage in the same bed in the husband’s parents’ house 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 consented.”
In 1947, another Ontario judge refused to grant an annulment despite a doctor’s confirmation that a woman was an “intact virgin” and her husband’s testimony to her father: “Guess I’m not enough. man for her â.
Decades ago, Baker said, judges would not grant annulment if there was a possibility that the inability to consummate a marriage would be cured or terminated.
“I am convinced that the extremely high standard of proof required in previous centuries resulted from an apparent horror of the powerlessness in the cultural norms of the time,” she said. “I am not convinced that this extremely high standard of proof is necessary or appropriate today.”
As such, Baker said that it would not be necessary for the husband in the BC case to undergo a medical examination to prove he could not maintain an erection “in order to achieve penetration. sexual intercourse and consummation of their marriage “.
A new girlfriend and “regular sex”?
The British Columbia couple tied the knot in August 2018, after attending counseling sessions at the Chinese Alliance Church, where the woman said her future husband never hinted that sex might be a problem.
From their wedding date until March 2019, they attempted sex every month – though the couple differed on how many times a week and who was most willing to try.
Either way, Baker found out, nothing happened.
The couple stopped living together after the woman asked her husband to see a doctor, who ended up assuring them both that there was “nothing wrong” with the man.
According to the judge, the man reproached the woman for not having consumed and even claimed that “he had a new girlfriend and that they had sex regularly”.
The new girlfriend gave no proof of her alleged sexual prowess.
James says she finds the case fascinating, noting that the law is made at “the intersection of very strange sets of facts.”
âI always like to see these decisions, because it kind of tests the limits of the law and where they are,â she says.
âOne thing I love about family law is looking through the plating. It doesn’t matter how fancy your car is or how fancy your house is – people are always fancy people. end of the day.”