Joanna Abrahams considers equality upon nullity in same sex marriage

Marriages most commonly tend to end with either the death of one person or on divorce. But there is also the less common option of annulment, also known as nullity. 

Whereas a couple cannot divorce until they have been married for over a year, an annulment can be applied for in the first year of a marriage or any time afterwards; although an application years after the wedding may require some form of explanation. 

Void marriages

An annulment can be applied for on one of two grounds: that the marriage was never legally valid –­­­ or that it was valid, but was voidable. A marriage is not legally valid, and so termed as void, if those married were closely related (called ‘the prohibited degrees of relationship’ –­­­ such as a parent and child), or if one or both of them were under 16, or either was already married to someone else, or in a civil partnership.

The substance of this is it was never a legal marriage in the first place. It is important to distinguish this from a voidable marriage –­­­ as with the voidable situation there is a recognised marriage, but good reasons to annul it as if it had not existed.

Voidable marriages

There is a wider range of reasons which allow for a marriage to be voidable. Only one of these needs to exist for an annulment. A marriage is potentially voidable if someone was forced into it, one of the couple had a sexually transmitted disease (STD) when they were married, a woman was pregnant by someone else at the time of the marriage, or one of the couple is in the process of transitioning to a different gender, so that the gender of that person is different from when they got married.

A marriage is also voidable if it was not consummated. This, to put it bluntly, means that the couple have not had sexual intercourse since the wedding. This could be due to incapacity. This can be either physical, so the marriage cannot be consummated, or mental so that one the parties would not have had capacity to enter into this for mental health reasons. That is also a potential ground for annulment.

Then we have what is known as ‘wilful’ non-consummation, where one party will not consent to what the legal profession refer to coyly as ‘intimacy.’ It is the lack of willing, not the lack of ability, which is key for that ground.

But this particular ground for annulment (ie non-consummation) is notable for one particular reason: it does not apply to same-sex couples. 

Non-consummation and same sex couples

The Marriage (Same Sex Couples) Act 2013 records

’non-consummation (either by reason of incapacity or wilful refusal) cannot be a ground on which a marriage of a same sex couple is voidable. The provisions for opposite sex couples remain unaltered.’

This is a glaring oversight in the law that cannot be justified. It seems bizarre – not to mention discriminatory – a heterosexual couple can have a marriage annulled on the grounds that they never had sex while married – and yet a same-sex couple do not have this right. This must be corrected to bring us into the 21st century. 

Same-sex marriage has come a long way since the first same-sex wedding in 2014. But a same-sex couple not being able to have their marriage considered voidable because it is unconsummated is one clear area where their rights are lagging well behind those of a heterosexual couple. The fact the denial of this right is made explicitly clear on the government’s own website seems to add insult to injury. It also begs the question as to why this has not yet been remedied. 

For all the talk of a fair and equal society, this is one aspect of the law that needs to be looked at as soon as possible, if all couples are to believe they are being treated equally and fairly, irrespective of gender.

Joanna Abrahams is a family law solicitor with Valemus Law: valemuslaw.com

Joanna Abrahams
Solicitor
Valemus Law