Is non-consummation of a marriage valid ground to file for divorce in California?
Full Question:
My husband is incapable of having any kind of sexual relations with me since the time we have been dating. We are 4 months into the marriage and we haven’t been able to consummate it until date. On consulting a relationship advisor, he diagnosed that my husband has had a history of addiction to pornography. He cannot have a normal sexual life which is really frustrating for me as a woman. We have been trying all kinds of therapy, which has not had any significant improvement in our lives. I want to end the relationship. Can I divorce him on these grounds?
11/23/2016 |
Category: Divorce |
State: California |
#27103
Answer:
“Dissolution of the marriage or legal separation of the parties may be based on either of the following grounds, which shall be pleaded generally:
(a) Irreconcilable differences, which have caused the irremediable breakdown of the marriage.
(b) Permanent legal incapacity to make decisions.”
(a) Irreconcilable differences, which have caused the irremediable breakdown of the marriage.
(b) Permanent legal incapacity to make decisions.”
It is up to the spouse who files for divorce to show that the “irremediable breakdown of the marriage” is due to the non-consummation of marriage. They also have the option to annul the marriage on these grounds.
An annulment is a legal procedure which cancels a marriage between a man and a woman which declares that the marriage never technically existed and was never valid. In California, Cal Fam Code § 2210 lays down the grounds for an annulment of marriage. It reads:
“A marriage is voidable and may be adjudged a nullity if any of the following conditions existed at the time of the marriage:
(a) The party who commences the proceeding or on whose behalf the proceeding is commenced was without the capability of consenting to the marriage as provided in Section 301 or 302, unless, after attaining the age of consent, the party for any time freely cohabited with the other as his or her spouse.
(b) The spouse of either party was living and the marriage with that spouse was then in force and that spouse (1) was absent and not known to the party commencing the proceeding to be living for a period of five successive years immediately preceding the subsequent marriage for which the judgment of nullity is sought or (2) was generally reputed or believed by the party commencing the proceeding to be dead at the time the subsequent marriage was contracted.
(c) Either party was of unsound mind, unless the party of unsound mind, after coming to reason, freely cohabited with the other as his or her spouse.
(d) The consent of either party was obtained by fraud, unless the party whose consent was obtained by fraud afterwards, with full knowledge of the facts constituting the fraud, freely cohabited with the other as his or her spouse.
(e) The consent of either party was obtained by force, unless the party whose consent was obtained by force afterwards freely cohabited with the other as his or her spouse.
(f) Either party was, at the time of marriage, physically incapable of entering into the marriage state, and that incapacity continues, and appears to be incurable.”
In the given circumstances, where the husband is incapable of consummating the marriage, there is reasonable ground for obtaining annulment citing sexual incapability. However, unlike a divorce, they would not be entitled to receive any spousal support if the marriage is annulled.