Our family law blogs often focus on issues related to separation and divorce. A topic that straddles those topics but doesn’t come up nearly as often is the annulment of a marriage, which is when a marriage is deemed to be null and void, as though it never existed in the first place. In a recent decision from the Court of Queen’s Bench of Alberta, the married parties found themselves before the court with the husband asking for an annulment and the wife seeking a divorce.

Couple enters into a polyamorous relationship

The husband and wife began a romantic relationship in 2013. They agree that at that time they had a satisfying sexual relationship. At some point early on they agreed to enter into a polyamorous relationship, which means they engaged in sexual activities with others. They both told the court that this decision deepened their trust and mutual commitment to each other.

The wife was injured in a car accident in 2014. The court stated the accident led to a limitation of “her former activities.” The husband stated that around mid-2015 they began to experience a decline in sexual intimacy and that by 2017 they were engaging in sex once every two months or so. The parties agree that they stopped engaging in sexual intercourse altogether by July 2018.

Nevertheless, the couple decided to get married. They had a civil service in January 2019 and invited friends and family to a destination wedding in Mexico the following month. Two months later, on April 24, 2019, they separated. The wife filed a Statement of Claim for Divorce in July, while the husband filed an Application for Annulment in September of that year.

The law around annulment for non-consummation of a marriage

The husband’s reason for seeking an annulment is that the couple had not engaged in sexual intercourse since their marriage.

The court noted that non-consummation alone does not provide grounds for the annulment of a marriage. The court stated that case law has indicated a marriage can only be annulled for this reason if there is an incapacity to consummate the marriage springing from “physical or psychological limitations beyond the control of the refusing party. It is not sufficient that there is a conscious refusal to engage in sexual relations.”

With this in mind, the court set out to determine the reasons for the parties’ failure to engage sexually since their marriage.

Did the car accident lead to a psychological disability?

Turning first to medical evidence, the husband claimed that the car accident caused the wife to develop a “psychological disability” which led to her inability to have sexual intercourse with him.

The wife maintains that while she was injured in the accident and experienced pain and depression as a result, she asserted that neither the accident nor her medications prevented her from engaging in sexual intercourse.

The only medical evidence provided to the court was a “Psychoeducational Assessment Report” provided by two psychologists. The report does not link any of the wife’s medical conditions to an inability to have sex.

The husband did not call any other expert medical evidence to back up his claim.

The wife claimed she tried to initiate sexual intercourse with the husband during the parties’ destination wedding. However, she said the husband turned her down, stating that he had an interest in one of the bridesmaids at the wedding. The husband told the court that he attempted to engage in sexual intercourse with the wife after the wedding, but she was not interested.

Ultimately, the court did not find that the car accident left the wife with a physical or psychological condition that prevented her from engaging in sexual acts with him. The court found that instead, the couple didn’t want to engage in sexual intercourse with each other. As a result, the husband’s application was denied.

If you are going through a separation or divorce, reach out to a member of HMC Lawyers’ family law group as soon as possible. We can help guide you through this process and offer legal advice to help you protect your rights and make the best decisions for your future. Contact us online or call 1-800-480-3534 to make an appointment.