This is a guest post by Kathryn Cassells. Kathryn is an associate solicitor at Vaitilingam Kay. She tweets as @MasonCassells

On 16 February 2021, the press reported on the breakdown of Husayn Kassai and Niloofar Tabarra’s marriage. Husayn and Niloofar are referred to as ‘husband’ and ‘wife’ throughout this blog post.

The case was reported in the Daily Mail, The Telegraph, and Metro:

‘Patriarchal’ no-sex annulment law must be reformed says divorcing doctor (Telegraph.co.uk)

Man who wanted to get wife’s hymen tested to nullify marriage drops case (Metro News)

Millionaire businessman, 31, who claimed his doctor wife refused to have sex with him drops bid to nullify their six month marriage and agrees to divorce after she said she had text proving it HAD been consummated (Daily Mail)

The husband and wife were married in June 2018. The husband said that the marriage had not been consummated and so, after six months, he sought a decree of nullity. The wife defended his petition. The wife wanted a divorce: she said that she had been the victim of domestic abuse, including coercive control. Further, she said that the court should not grant the husband’s petition for nullity as the marriage had been consummated on one occasion, while on holiday in Prague. The wife relied on a text message from her husband that read ‘let’s head back to the hotel so we can have even better sex than last night’. The husband conceded and the wife was able to press on with her divorce on the grounds of the husband’s behaviour.

Mr Justice Moor heard the case. It seemed to him that the only thing the husband and wife agreed on was that the marriage had been an unhappy one.

So what is the legal framework behind this case?

Annulment

Annulment cases are fairly rare – according to figures published by the Office for National Statistics in 2019, there were a total of 297 annulments.  Divorces in England and Wales – Office for National Statistics (ons.gov.uk). It is rarer still for cases like this to end up in court – Mr Justice Moor said that he had only come across two such cases in around 40 years.

For a marriage to be annulled, it must be ‘void’ or ‘voidable’.

A marriage can be ‘void’ for one of the following reasons:

  • The parties to the marriage are closely related.
  • The parties to the marriage were under the age of 16 at the time of the marriage.
  • One of the parties to the marriage was already married, or in a civil partnership, at the time the marriage took place.

A marriage would be ‘voidable’ for one of the following reasons:

  • The marriage was never consummated (though this applies only to heterosexual couples) because of a wilful refusal or incapacity (physical or psychological).
  • There was a lack of proper consent to the marriage (e.g. one of the parties was forced into the marriage).
  • One of the parties to the marriage had a sexually transmitted disease at the time of the marriage, and the petitioner was not aware of this.
  • One of the parties to the marriage was pregnant by someone else at the time of the marriage.
  • One of the parties to the marriage is in the process of transition to a different gender.

Non-consummation

Consummation has long been entrenched in law as a requirement of marriage, with “bedding rituals” a tradition dating back thousands of years. The relevance of consummation as a “requirement” for marriage was considered with the passing of the Marriage (Same Sex Couples) Act 2013 with Lord Dannatt stating: “the defining process of marriage is consummation, which is for the entirely practical purpose of bringing children into the world”.  A similar provision was considered for same sex marriages, and expressly excluded. The Hansard reports on this topic make for interesting reading: Marriage (Same Sex Couples) Bill – Monday 3 June 2013 – Hansard – UK Parliament

Legally speaking, consummation of a marriage requires ‘ordinary and complete’ rather than ‘partial and imperfect’ sexual intercourse. Proving consummation is, perhaps not surprisingly, quite difficult.  In this case, the husband had said that he was “clear” that the marriage had not been consummated and he sought a medical examination of the wife to show that she was still a virgin.

Why would annulment be preferred in some cases?

If the marriage is annulled, it is as though the marriage never took place (save for the ability to make a financial claim, of which more below!). This is a key distinction between divorce and annulment, and so annulments are sometimes favoured by people who feel that divorce still carries a stigma.

Unlike divorce, it is possible to apply for annulment in the first year of the marriage or any time after (though if an application is made years after the wedding, an explanation may be required to explain the delay). The ability to apply within the first year of marriage may be attractive to petitioners who do not want to have to wait for a full year before ending the marriage.

As things stand, the only option available to spouses wanting to end a marriage after one year is to set out particulars of behaviour and effectively ‘blame’ the respondent for the breakdown of the marriage. That will soon change once the Divorce, Dissolution and Separation Bill is implemented. For petitioners who do not want to play the ‘blame’ game, and where the marriage can be said to be either void or voidable, annulment may be the preferred option.

What about the finances?

It is a fallacy that there is no scope for a financial claim in the event of an annulment.

However, the court would take into account the length of the marriage when considering an appropriate financial award. The husband’s case was that this marriage lasted only six months. Mr Justice Moor did not make any findings of fact on either the husband or wife’s position, but assuming that it is agreed that the marriage was a short one, and in the absence of any children, the wife may only be able to make a fairly limited financial claim irrespective of her case now proceeding as a divorce rather than an annulment. This is because where a marriage has been short, the court is more likely to take into account the husband and wife’s financial contributions during the marriage when looking at what is and is not included in the marital pot. Much has been made of the fact (in the media) that this husband is a millionaire businessman – but that does not necessarily mean that the wife will now be entitled to a share of that, divorce or no divorce.

An area for reform?

This case has also led to commentary that elements of the Matrimonial Causes Act 1973 are patriarchal and sexist. Whilst either a man or a woman could petition for an annulment on the basis of non-consummation (and there are reported cases where the wife has successfully sought an annulment for non-consummation), a medical examination to prove non-consummation of the marriage is likely to be far more invasive for a woman, particularly where it is said that the woman is a virgin before marriage. It is interesting that in this case it was argued that the annulment proceedings in this case were an extension of the husband’s abuse of the wife.

It was said by the wife’s legal team that the current law on annulment is incompatible with human rights legislation. The commentary on this is available here: Dr Charlotte Proudman successfully wins divorce on behalf of the wife after the husband’s nullity claim is dismissed by the High Court – Goldsmith Chambers

Ultimately, that was an avenue of the case not explored because, at the hearing, the husband agreed to a divorce going ahead based on his behaviour.

There are other arguments that the law, and modern marriage, has moved on since the Matrimonial Causes Act 1973. The Marriage (Same Sex Couples) Act specifically excluded non-consummation as a ground for the annulment of a same sex marriage. Civil partnerships were also de-sexualised. Is it time now to de-sexualise the Matrimonial Causes Act 1973?

Concluding comments

At the time of writing, no full judgment has been made available.

Contested annulment proceedings are expensive, complicated, and – as the husband and wife in this case found out – very public.

UPDATE : 7 MAR 2021. We have been contacted by the wife in this case, who has indicated that in her view there are some inaccuracies in some of the media reports about this case, which she is taking up with IPSO.