I’ve read a couple of stories recently that bought into the myth that non-consummation was grounds for an annulment. Even today, the law is not quite that simple, although many jurisdictions allow non-consummation as grounds for divorce. But back in Georgian and Regency England, the fact that the marriage had not been consummated, if it could be proven, was not grounds for either divorce nor annulment.

First, a definition of terms. Annulment is a legal declaration that a marriage never existed. Divorce is a legal declaration that a marriage is at an end, and the husband and wife no longer have marital obligations one to the other.

Annulments were not quick, they were not painless, and they required one or more of three circumstances. These circumstances were fraud; inability to contract a marriage; and impotence. Even taking the case could make both the husband and the wife social outcasts. If the annulment went through, the woman was reduced to the status of a concubine, and her children became illegitimate. The man had no further obligations to support her or the children.

Fraud could include using a false name with the intention of fooling your intended spouse or their family, or making promises in the marriage settlement you had no ability to carry out. For example, if you settled a non-existent estate on your daughter’s new husband, he could claim this as grounds for annulment. He would not necessarily win — it would be up to the church court to decide the extent to which any of these fraudulent behaviours were intentional, and how much they influenced the decision to marry.

Inability to contract a marriage meant that at the time of the marriage you already had a living spouse, you were related by blood to your intended spouse (closely enough for marriage to be forbidden — there was a list), you were sufficiently insane not to know what you were doing, or you did not have the consent of your guardian if you were under 21.

Proving that the man was impotent or the woman was incapable of sexual intercourse was even more difficult. Even if the man was prepared to admit to such a thing, the judges would not take his word. First came a medical examination. Was there a visible physical abnormality? Did the man show the ability to become aroused? Had the man shared his bed with his wife exclusively for years without the woman losing her virginity? (So no lovers on the side for either of them.)

If he could have an erection with anyone, he was clearly not impotent, and in earlier periods two accomplished courtesans might be hired by the court to test the impotency.  By the 19th century, doctors were used, and one does not wish to enquire too closely into their methodologies.

Rats. There go some useful plot lines. But on the other hand, what fun to work your way around them.