Question 1

Renee, 21, went through a ceremony of marriage with Steve, a childhood friend, in France. The
ceremony was conducted in French and was witnessed by Renee’s parents who lived in France.
Steve was fluent in French.

After the ceremony, Steve confided in Renee that he was impotent and he will not be able to
consummate the marriage. Renee told Steve that it did not matter, as she plans to marry Trevor,
her high school sweetheart, after her mother’s death. Renee’s mother passed away three months
after the ceremony.

As Renee was making plans to marry Trevor, she discovered that the ceremony she went through
with Steve was an actual wedding ceremony. Renee said she thought the ceremony was a mock
wedding for the benefit of her mother. Renee’s mother was terminally ill and wanted to see
Renee in a wedding dress and always wanted Steve and Renee to end up together. The wedding
ceremony was arranged by Renee’s father and Steve. Renee had wanted to marry Trevor but her
parents had objected informing her that Steve would make a better husband.

Renee wants to have the marriage to Steve annulled. Advise Renee

Issue: whether Renee can have the marriage annulled on the grounds of impotency or
incapacity

Rule: Impotence or incapacity to consummate a marriage renders it voidable at common law.

Consummation of the marriage, according to Dr Lushington in D v. A (1845) 163 ER 1039,
requires "ordinary and complete" rather than "partial and imperfect" sexual intercourse.

Analysis:

As stated in the fact scenario, Renee and Steve are married, and it is presumed that all the
formalities were carried out for there to be a valid marriage since the facts do not show the
contrary. The issue arises when Renee wishes to have the marriage annulled, in the given
situation, this would be known as a voidable marriage. Renee can apply to the court to set aside
the marriage by a pronouncement or decree of nullity on the grounds of non-consummation of
marriage arising from incapacity. In the facts, it stated that post the marriage, Steve confided in
Renee and told her that he was impotent and as a result, will not be able to consummate the
marriage. In the case of Treasure v Treasure, Carey J explained what impotent meant: “ it means
in law that one of the parties is at the time and continues to be incapable of effecting or
permitting the consummation of the marriage for example by reason of some structural defect of
the organ of generation, which makes sexual intercourse impracticable”. Further, in Cackett v
Cackett [1950], Hodson J mentioned that "impotence consists in the incapacity for copulation…
the manifest causes of impotence in both sexes are divided into physical and moral. The causes
of impotence in man arise from two sources, from malformation of the genitals or from want of
action in them." The facts do not make clear whether Steve had physical or psychological
impotence to consummate the marriage however, it's clear that Steve is indeed impotent and
incapable of performing sexual intercourse to consummate the marriage. In the case of D v. A,
Dr. Lushington explained the consummation of marriage requires “ordinary and complete” rather
than “partial and imperfect” sexual intercourse, which Steve is not able to carry out.

Conclusion: Due to the fact that Steve is impotent and not able to consummate the marriage, it is
in fact a valid ground to apply to set the marriage aside.