B.C. Supreme Court annuls marriage on the basis of impotence

Impotence as a ground for annulment may be relative to a particular spouse and not necessarily a general inability to engage in sexual intercourse, a B.C. court has said.

In S.Z. v X.J, 2020 BCSC 1336 the claimant sought a declaration of annulment of her August 2018 marriage to the respondent on the basis that the respondent’s impotence prevented the consummation of their marriage. The claimant asked the court to declare the marriage contract void due to the respondent’s inability to engage in sexual intercourse, which she called an essential implied term of the contract.

The claimant alternatively sought an order compelling the respondent to participate in a medical examination which would assess his ability to maintain an erection.

The issue before the court was whether the claimant had met the burden upon her to show that the respondent was at the time of the marriage incapable of engaging in sexual intercourse with her and continued to be incapable of such.

Historically, the standard of proof to establish the inability to consummate a marriage was extremely strict, seemingly due to a fear of impotence due to the prevailing cultural norms back then, but recent cases put a lesser burden upon the claimant, wrote Justice Wendy A. Baker for the court.

Baker said that “the onus is on the claimant to establish that one or both of the parties is incapable of engaging in sexual intercourse due to a physical or psychological incapacity” and that “the impotence need not be a general incapacity to engage in sexual intercourse, but can be with respect to the particular spouse only.”

The court considered the affidavit evidence and held that the claimant had satisfied the burden upon her to establish that, at the time of the marriage, the respondent was incapable of maintaining an erection and engaging in penetrative sexual intercourse with the claimant, and continued to be incapable of such for either physical or psychological reasons, despite repeated attempts from August 2018 to around March 2019.

The affidavit evidence additionally demonstrated that, prior to the marriage, the couple had talked about having children together and had attended pre-marriage counselling sessions, during which the respondent did not disclose any sexual health issues. They then visited a doctor for a blood test when they started experiencing these problems after the marriage. The doctor stated that there was nothing wrong with the respondent, but the claimant told the respondent to acquire a second opinion. They stopped living together in September 2019.

The court said that a medical examination, as alternatively sought by the claimant, was unnecessary due to the affidavit evidence provided by the claimant and by the respondent. The court noted that the respondent was free to seek his own medical opinion if he wanted to dispute the claimant’s submissions, but had opted not to do so.

The respondent contended that he regularly has sexual intercourse with his new girlfriend. The court said that, even if proven true, this does not negate the fact that he is incapable of consummating his marriage with the claimant.

For these reasons, the court declared the marriage contract null and void.