A B.C. Supreme Court judge has granted a woman an annulment after her husband was unable to maintain an erection or have sexual intercourse with her.
In a judgement released earlier this month, Justice Wendy Baker noted that precedent was set in 1857 for the courts to annul a marriage based on impotency. Prior to that, ecclesiastical courts were the only way to annul a marriage.
“Pursuant to the domestic law of British Columbia, a marriage is voidable where a claimant has established their spouse lacks the capacity to consummate the marriage,” Baker wrote.
The couple, dubbed S.Z. and X.J. to protect their privacy, were married on Aug. 11, 2018. The wife, S.Z., had sought an annulment instead of a divorce due to her faith.
According to Baker, evidence showed the couple attended pre-marriage counselling sessions at the Chinese Alliance Church in Vancouver, although X.J. did not disclose to his future wife that he had any sexual health concerns.
Baker said the couple did not live together prior to marriage but did discuss having children together. The marriage was never consummated despite the couple’s attempts at sexual intercourse about twice a week from August 2018 to March 2019.
The wife is alleged to have asked her then-husband to see a doctor about his sexual health in June 2019 but he put it off. Later, the couple did see a doctor for a blood test, although the test did not reveal any health issues. The wife then asked her husband to get a second opinion, and alleges they tried to have sex four to five times a week after the initial doctor’s visit, but the parties stopped living together in September 2019.
In her judgement, Baker wrote that although in earlier times, impotency needed to be permanent and without the chance of a cure, that was unnecessary for her to grant an annulment in 2020.
“I am satisfied that the extremely strict standard of proof required in earlier centuries resulted from an apparent horror of impotency within the cultural norms of those times. I am not satisfied that this extremely strict standard of proof is necessary or appropriate today.”
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