REFUSING TO CONSUMMATE; GROUND FOR DIVORCE
Toyosi and Kingsley have been married for a year and 6 months but Toyosi is very unhappy because since they got married, they have not had sex consummated the marriage. Toyosi after requesting time and time again for intercourse with Kingsley is now frustrated and it makes matters worse that Kingsley refused to give any explaination for his refusal. Toyosi has now been told that she can apply to court for the marriage to be dissolved on the grounds of Kingsley’s wilful refusal to consummate the marriage. Do you think it’s possible? Let’s find out.
Several weeks ago, a story about a man whose wife refused him sex for a month was trending on the internet, it was particularly interesting because the man prepared an excel document stating every reason the wife gave. Hope you caught the story. This takes me back to our scenario and the question if one can really apply for a divorce because a partner has refused the other sex to consummate.
Well the answer to that question is “yes”. Wilful refusal is a ground for divorce under the Matrimonial Causes Act. To establish the facts, the petitioner (person asking for a divorce) must show that the refusal is both wilful and persistent. A refusal is wilful if the person refuses to have intercourse for not just cause, thus a spouse who insists on the use of condoms cannot be said to have wilfully refused to consummate and if a spouse has a good reason to refuse consummation, such spouse cannot be said to have wilfully refused to consummate.
It should be noted that, the ground for a wilful refusal to consummate will not be valid if the couples had sex at least once after the celebration of the marriage and there can be no wilful refusal if no request for consummation was made in the first place.
By provision of the law, the wilful refusal must continue until the day the matter comes up in court. Thus an unscrupulous respondent can agree to consummation just a day before the date fixed for hearing, however at such instance, the courts will have to examine the particular facts of the case in determining the issue before the court.
From the foregoing it is obvious that consummation in a marriage is very important to the life span of that marriage and can be a ground for petitioning for a dissolution of the marriage.
Adedunmade Onibokun is a legal practitioner, publisher and blogger. He holds an LLM in International Business Law from the University of Bradford and publishes the Nigerian law blog Legalnaija.