Impotence and marriage

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An unhappy wife is complaining to the qadi about her husband's impotence. Ottoman miniature. Zibik.jpg
An unhappy wife is complaining to the qadi about her husband's impotence. Ottoman miniature.

Historically marriage was seen as primarly existing for the purpose of procreation. Thus inability of a man to consummate marriage by having vaginal sex was a ground for declaring marriage as void.

Contents

By religion

Catholic Church

Per Canon 1084 §3 "Without prejudice to the provisions of Canon 1098, sterility- the absolute or probable inability to have children due to defects or abnormalities in the reproductive organs or other associated organs, or of the germ cells (the ova and sperm), neither forbids nor invalidates a marriage." Both parties, however, must be physically capable of completed vaginal intercourse, wherein the man ejaculates "true semen", even if the amount is small and/or if there are no viable sperm, into the woman's vagina (even if the cervix or uterus are absent, the ova are absent or non-viable, or the vagina is deformed). (See for details.) To invalidate a marriage, the impotence must be perpetual (i.e., incurable) and antecedent to the marriage. The impotence can either be absolute or relative. This impediment is generally considered to derive from divine natural law, and so cannot be dispensed. [1] The reason behind this impediment is explained in the Summa Theologica : [2] "In marriage there is a contract whereby one is bound to pay the other the marital debt: wherefore just as in other contracts, the bond is unfitting if a person bind himself to what he cannot give or do, so the marriage contract is unfitting, if it be made by one who cannot pay the marital debt."

By country

France

During the late 16th and 17th centuries in France, male impotence was considered a crime, as well as legal grounds for a divorce. The practice involved so-called "trial by congress" during which a panel made of clergy and medical professionals inspected man's ability to perform sexual acts. [3] [4]

There are multiple known cases of such trials between 1426 and 1712. In 1603 Jacques de Sales claimed his wife took his potency by means of magic. They were granted annulment of marriage. Marquis de Langey in 1657 was declared impotent by court and his wife was granted a divorce. In 1712 Marquis de Gesvers also was sued, but his wife died before the trial was concluded. [5] Between 1726 and 1789 there were 25 known impotence trials, 22 of them involving men and three women. [6]

Spain

Multiple trials to grant annulment for divorce the grounds of both male and female impotency were held in Spain between 1650 and 1750. [7] [8]

Summary of current laws

Impotence makes marriage automatically void

Impotence is a ground for declaring marriage voidable

Impotence is a ground for declaring marriage voidable only if not disclosed before the marriage

Impotence is not a ground for declaring marriage void

See also

References

  1. ↑ New Commentary, Beal, et al., p. 1286.
  2. ↑ Summa Theologica, Supplement to the Third Part, question 58, article 1 Archived 2007-09-29 at the Wayback Machine .
  3. ↑ Roach M (2009). Bonk: The Curious Coupling of Science and Sex. New York: W.W. Norton & Co. pp. 149–52. ISBN   978-0-393-33479-1.
  4. ↑ Darmon P (1985). Trial by Impotence: Virility and Marriage in Pre-Revolutionary France. Vintage/Ebury. ISBN   978-0-7011-2915-6.
  5. ↑ HF01-02 MAKING THE PRIVATES PUBLIC: IMPOTENCE TRIALS IN PREREVOLUTIONARY FRANC, Journal of Urology
  6. ↑ Les causes matrimoniales des officialités de Paris au Siècle des Lumières 1726-1789
  7. ↑ Female Sexual Potency in a Spanish Church Court, 1673–1735
  8. ↑ Unfit for marriage: Impotent spouses on trial in the Basque region of Spain, 1650-1750
  9. ↑ Civil Code, Article 156(8)
  10. ↑ Separation and annulment
  11. ↑ Alberta Court Clarifies Consummation Requirement for Marriage Annulment
  12. ↑ B.C. Supreme Court annuls marriage on the basis of impotence
  13. ↑ Razavian v. Tajik, 2019
  14. ↑ THE HINDU MARRIAGE ACT, 1955 12(a)
  15. ↑ Nullity of marriage
  16. ↑ 73. Grounds for annulment of marriage
  17. ↑ Marriage Act 19(1)(e)
  18. ↑ MATRIMONIAL CAUSES ACT 5(a)
  19. ↑ Article 45 of the Family Code
  20. ↑ Law of Marriage Act Article 39
  21. ↑ Uganda Divorce Act
  22. ↑ When you can annul a marriage
  23. ↑ California Code, Family Code - FAM § 2210(f)
  24. ↑ Idaho Statutes Title 32. Domestic Relations § 32-501. Grounds of annulment
  25. ↑ MCL - Section 552.39
  26. ↑ Mississippi Code Title 93. Domestic Relations § 93-7-3
  27. ↑ NE Code § 42-374 (2024)
  28. ↑ 14-04-01. Grounds for annulling marriage
  29. ↑ §48-3-103. Voidable marriages.
  30. ↑ Grounds for Voidable Marriage: What You Need to Know
  31. ↑ Colorado Revised Statutes Title 14. Domestic Matters § 14-10-111. Declaration of invalidity
  32. ↑ Qualifying for a Civil Annulment in Connecticut
  33. ↑ Delaware Code Title 13. Domestic Relations § 1506. Annulment
  34. ↑ Everything You Need to Know About Annulments in Florida
  35. ↑ Illinois Statutes Chapter 750. Families § 5/301. Declaration of invalidity--Grounds
  36. ↑ Kentucky Revised Statutes Title XXXV. Domestic Relations § 403.120.Marriage; court may declare invalid
  37. ↑ Minnesota Statutes Domestic Relations (Ch. 517-519A) § 518.02. Voidable marriages
  38. ↑ 40-1-402. Declaration Of Invalidity
  39. ↑ NJ Rev Stat § 2A:34-1 (2024)
  40. ↑ DRL 140: Action for judgment declaring nullity of void marriages or annulling voidable marriage
  41. ↑ Texas Family Code - FAM § 6.106. Impotency
  42. ↑ Wisconsin Statutes Marriage and Family (Ch. 765 to 770) § 767.313. Annulment
  43. ↑ MARRIAGE ACT 1961 - SECT 23B Grounds on which marriages are void
  44. ↑ Annulment or dissolution of a marriage
  45. ↑ CHOICE OF LAW FOR IMPOTENCE AND WILFUL REFUSAL
  46. ↑ Japanese Civil Code, Article 742
  47. ↑ Family Proceedings Act 1980
  48. ↑ Unieważnienie małżeństwa cywilnego
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