Sexy historical legal talk: Impotence!

I am in a happy place, because I finished a book! This is exciting, and so I’m going to talk about something even more exciting: impotence. This is because it has come up on at least four occasions within the last day–most recently, in this blog on All About Romance’s site, where Jane Granville makes the comment that “all of us can think of at least one book where the heroine got an annulment based on non-consummation (whether this is legally legitimate is up for debate).”

I suppose the question of annulment for non-consummation is up for debate, in the same way that the question of whether cats are reptiles is up for debate: you can have lengthy discussions about things that are questions of fact, and people can, in fact, disagree. But this isn’t a disagreement about whether vanilla ice cream is better than chocolate ice cream. It’s a disagreement where one person is right, and the other is wrong.

So, let’s settle this debate once and for all.

Nonconsummation, in and of itself, was never grounds for annulment. It was, however, a necessary (but not sufficient) component of seeking an annulment on grounds of impotence. And, here’s the kicker–today, when we think of “impotence,” we tend to think of it as a strictly medical condition that deals with the question of whether the man is capable of getting it up and using it, but what was meant by impotence back then doesn’t track modern meaning. A few things to consider:

• A man was not considered impotent, for purposes of annulling a marriage, if he could get it up and use it, even if he was unable to get to his happy ending.
• You could be considered impotent with respect to a spouse even if you were capable of having intercourse with others.
• A woman could be considered impotent if she had a violent hysterical reaction every time her husband tried to have sex with her, so that the only way to proceed would be to use physical force. But mere resistance (or, as they so lovingly called it back then, “frigidity”) on the part of the woman is not enough: it has to be an involuntary response.

So how does this play out? If you want to get an annulment on grounds of impotence, you are going to have to prove that you are impotent. You can do this a couple of ways. First, you can submit to medical evaluation. But remember that you can claim that are impotent with respect to a particular spouse–how on earth would you prove that to a doctor?

Well, this is where nonconsummation finally becomes an interesting question. Up until this point, nonconsummation would have been proof that the parties in question were not impotent. But the rule was that if the medical evidence was inconclusive, the courts would require the spouses to cohabit for three years. If they were able to do so without consummating the marriage, the court would presume that the couple was incapable of having sex, and they would annul it.

So nonconsummation, in and of itself, can be a grounds for annulling a marriage. But it has to be nonconsummation for three years of cohabitation–something that no romance couple has ever managed to accomplish.

The clearly readable A Handbook of Husband and Wife lays all this out, including a discussion on how these rules would vary in Scotland. For those who might get annoyed that this is technically a book about Scottish law (even though the author talks about England and Scotland), the same rule is discussed (in less clear terms) in A Practical Treatise on the Law of Marriage and Divorce, which is all about England.

So you want a marriage to be annulled for impotence? You need to live together for three years. And not just be married for three years, but generally live in the same place.