Consummation

This article is about the consummation of marriages. For other uses, see Consummation (disambiguation).
Illustration from Tacuinum Sanitatis, a medieval handbook on wellness.

In many traditions and statutes of civil or religious law, the consummation of a marriage, often called simply consummation, is the first (or first officially credited) act of sexual intercourse between two people, either following their marriage to each other or after a prolonged sexual attraction. The definition of consummation usually refers to penile-vaginal sexual penetration, but some religious doctrines hold that there is an additional requirement that there must not be any contraception used.[1]

The religious, cultural, or legal significance of consummation may arise from theories of marriage as having the purpose of producing legally recognized descendants of the partners, or of providing sanction to their sexual acts together, or both, and its absence may amount to treating a marriage ceremony as falling short of completing the state of being married, or as creating a marriage which may later be repudiated. Thus in some legal systems a marriage may be annulled if it has not been consummated. Consummation is also very relevant in the case of a common law marriage.

In addition to these formal and literal usages, the term also exists in informal and less precise usage to refer to a sexual landmark in relationships of varying intensity and duration.

Legislation

Civil marriage

The relevance of consummation in a civil marriage varies by jurisdiction. For example, under section 12 of the Matrimonial Causes Act 1973, a refusal or inability to consummate a marriage is a ground of annulment in England and Wales,[2] but this only applies to heterosexual marriage, because Paragraph 4 of schedule 4 of the Marriage (Same Sex Couples) Act 2013 specifically excludes non-consummation as a ground for the annulment of a same-sex marriage.[3] Other common law jurisdictions, such as Australia, have abolished the legal concept of consummation.[4][5]

Common law marriage

In this case, usually, consummation, as well as cohabitation, are very important, they are needed - together with the presentation of the parties to society as spouses - in order to create the marriage itself.

Religious marriage

A religious marriage without civil registration may or may not be legally binding. In some countries, however, such as Israel, Egypt, Syria,[6] Jordan,[7] UAE,[8] Saudi Arabia, Yemen, Libya, Mauritania and Indonesia,[9] religious marriage is the only legally binding marriage.

Consummation is in particular relevant in a Catholic marriage. Within the Roman Catholic Church, if a matrimonial celebration takes place (ratification) but the spouses have not yet engaged in intercourse (consummation), then the marriage is said to be a marriage ratum sed non consummatum. Such a marriage, regardless of the reason for non-consummation, can be dissolved by the pope.[10] Additionally, an inability or an intentional refusal to consummate the marriage is probable grounds for an annulment. Catholic canon law defines a marriage as consummated when the "spouses have performed between themselves in a human fashion a conjugal act which is suitable in itself for the procreation of offspring, to which marriage is ordered by its nature and by which the spouses become one flesh."[11] Thus some theologians, such as Fr. John A. Hardon, S.J., state that intercourse with contraception does not consummate a marriage.[1]

Traditions

Traditionally, in many cultures, consummation was a very important act because it was the act which proved the bride's virginity; the presence of blood was taken as a confirmation that the woman was indeed a virgin.[12]

Controversies

In the family law defining civil marriage in some jurisdictions, particularly those where the civil marriage laws remain influenced by religion (albeit they are officially secular) non-consummation of a marriage may be a ground for annulment (an annulment is different from a divorce because it usually acts retrospectively). This stipulation has been in recent years heavily criticized on a wide variety of grounds, ranging from the mixing of religious doctrine into secular law, to being degrading to women given its negative historical connotations of ownership of the wife.[13] It has been argued that the purpose of this ground is not clear: it is neither procreation (the act need not end in pregnancy, and neither is there a need of the possibility of it, given the fact the consummation is legally valid even if one or both parties is sterile), neither is it the expectation of sexual satisfaction in marriage (one single act of sexual intercourse is sufficient, even if the spouse following the consummation says he/she will never again engage in intercourse).[14] Andrew Bainham argues that this law (in England and Wales) is outdated and must be abolished "in a modern society committed to equality and human rights in personal relationships".[15]

In a 2001 report, the Law Society’s Law Reform Committee of Ireland advocated for abolishing the concept of a voidable marriage altogether (since divorce had been introduced in 1996) and criticized the consummation ground, writing the following:[16]

"The rationale behind this ground is not immediately apparent. It is not concerned with the capacity of either or both parties to procreate, still less with the ability of the parties to satisfy each other sexually during the marriage. [...] It remains a rather curious anomaly in the law, a relic perhaps of medieval times, when the first act of intercourse was thought to 'mark' a new bride as the 'property' of her husband. Whatever its origins, it is not entirely clear what modern purpose this ground serves and it is suggested that it should be dispensed with."

Another concern is sexual violence, especially since in most countries the criminalization of marital rape is very recent, having occurred from the 1970s onwards; the maintaining in law of the concept of consummation is argued to foster cultural and societal attitudes and understandings of marriage that make it more difficult to acknowledge these violations; and to be a remainder of an oppressive tradition.[13][17]

"[A] historical view again throws useful light on the matter: until 1991, husbands were permitted to have sexual intercourse with their wives regardless of whether they were then actually consenting, the original act of consummation and the resultant marital status entitling the husband to sexual relations thereafter".[18] (about the law of England and Wales, where marital rape was made illegal in 1991, by the case of R v R.[19])

See also

References

  1. 1 2 Hardon, S.J., John. "Consummated Marriage". Pocket Catholic Dictionary. Image Books. p. 91. ISBN 0-385-23238-1.
  2. ↑ Matrimonial Causes Act 1973 (c. 18), s. 12
  3. ↑ Marriage (Same Sex Couples) Act 2013 (c. 30), Sch. 4 para. 4, coming into force 13 March 2014 by S.I. 2014/93 art. 3(j)(i)
  4. ↑ http://www.familylawcourts.gov.au/wps/wcm/connect/FLC/Home/Publications/Family+Court+of+Australia+publications/FCOA_Applying_decree_nullity
  5. ↑ Note: in Australia non-consummation as ground of annulment was abolished in 1975; see Dickey, A. (2007) Family Law (5th Ed) Also in 1975, Australia introduced no-fault divorce, so specific grounds of divorce such as adultery, cruelty, desertion, have all been abolished.
  6. ↑ Syria: Social repercussions of a marriage between a male Druze and a Muslim woman, UNHCR
  7. ↑ Marriage in Jordan, USA: Jordan embassy, archived from the original on 2011-10-06
  8. ↑ Marriage and weddings, Dubai, UAE FAQs
  9. ↑ Marriage in Indonesia, BCC Visa Law
  10. ↑ canons 1697-1706
  11. ↑ canon 1061 §1
  12. ↑ Marriage Customs of the World: From Henna to Honeymoons, by George Monger, pp 82-84
  13. 1 2 Family Law: Text, Cases, and Materials, by Sonia Harris-Short, Joanna Miles, pp. 96-99
  14. ↑ Body Lore and Laws Essays on Law and the Human Body, edited by: Andrew Bainham, Shelley Day Sclater, Martin Richards, pp 171- 182
  15. ↑ Body Lore and Laws Essays on Law and the Human Body, edited by: Andrew Bainham, Shelley Day Sclater, Martin Richards, pp 175
  16. ↑ https://www.lawsociety.ie/Documents/committees/lawreform/Nullity2.pdf
  17. ↑ http://www.solicitorsjournal.com/blog/case-point-consummation-legal-oddity
  18. ↑ Family Law: Text, Cases, and Materials, by Sonia Harris-Short, Joanna Miles, pp. 96
  19. ↑ http://www.bailii.org/uk/cases/UKHL/1991/12.html

External links

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