Consensus amongst the legal community is unusual, but there is widespread agreement that Marriage Law in England and Wales is long overdue for reform. The Law Commission is currently formulating policy proposals on the legal arrangements for weddings.
Predictably perhaps, much of the media focus has been on proposals around venues, and the possibility of more couples having the chance to legally marry on beaches, cliff-tops or even in their own back-garden. However, a number of academic commentators coming from different perspectives, for example authors like Maine, Herring and Stychin, have all questioned whether a more intimate dimension of Marriage Law is ripe for attention. Section 12(1)(a) of the Matrimonial Causes Act 1973 allows for a heterosexual marriage to be annulled if either party is incapable of consummating it, and s12(1)(b) allows a party to petition for nullity if their spouse “wilfully refuses” to consummate (N.B. It is not possible to have the marriage set aside on the basis of your own wilful refusal).
These provisions do not apply to same sex marriages, and prior to the passage of the Marriage (Same Sex Couples) Act 2013, opponents of reform tried to suggest that the requirement for consummation made same sex marriage legally unworkable, or at least impractical without root and branch reform of Marriage Law. As we observed at the time, this argument made very little sense, because s13(1) of the Matrimonial Causes Act stipulates that if someone is aware that they have grounds to have the marry annulled, but behave in such a way that their spouse reasonably believes that they will not do so, no decree of nullity will be granted where it would be unjust to the other party.
It is settled law in England and Wales that consummation means “ordinary and complete” penile penetration of the vagina (although ejaculation is not necessary). This being the case, it does not require a PhD in biology to understand that incapacity will apply to a same sex couple. If going through a legally binding wedding ceremony is not indicative of a desire to be married despite this, and stripping marital status from the unsuspecting other party would not be unjust, it is hard to imagine when s13(1) would ever apply. Consummation was never a genuine obstacle to same sex marriage, it was just an ineffective make-shift weapon grabbed in panic by traditionalists manning the barricades.
We would affirm, nevertheless, that maintaining the requirement for consummation sustains an unequal approach to marriage. The different legal treatment sends the message that same sex marriages are materially different in nature and quality from heterosexual ones, undermining the fundamental value of equality and idea that “love is love”.
Furthermore, we would argue that maintaining consummation is equally problematic in terms of its symbolic, and practical impact on heterosexual couples. Why should one group of citizens be subject to any form of mandatory sexual activity as a gateway to a particular legal status? The doctrine of consummation has its roots in Canon Law, and even more deeply, in patriarchal interests in controlling relationships, human reproduction and family assets. Traditional marriage was indeed a way to ensure that women could be used as transferable assets to cement alliances and manage ownership of land and resources, which would give powerful men a degree of reassurance that the children they were raising were their own, and save communities the collective burden of infants without an adult male guardian. It was moulded by religious doctrine, and provided a structure for household units in a world with rigid gender norms and roles.
Of course, there are reasons why we have used the past tense in the preceding paragraph, needless to say, we are not suggesting that couples who choose to be married in the XXI century are buying into a pre-modern social institution. Happily, our collective understanding of marriage has broadened and diversified, and the law in general reflects this. As a result, in our view, it is time that the requirement for consummation is removed, as a vestige of a very different model of marital relationships.
Having distinct legal doctrines applicable to same sex and heterosexual marriage is undesirable in terms of justice, equality and the symbolism of the law. Yet is it also true that maintenance of consummation imposes an intrusive and irrational burden on heterosexual couples, and perpetuates an association between marriage and the control of women and sexual relationships. For a variety of reasons, Parliament must shift this doctrine from the realm of Family Law to Legal History.
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