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Accessible legal tips, know-how and news for anyone with a complaint or legal issue from Stephen Gold, author of The Return of Breaking Law, the book

Tuesday 27 June 2017

The No-Sex Agreement

There are couples who wish to marry or enter into a civil partnership without the sex. More than you may think. This can be for a variety of reasons, the most likely to be age, incapacity, repugnance or simple disinterest in sexual activity. Companionship may be quite sufficient.
The courts have recognised that some degree of sex is the norm in a marriage between parties of the opposite sex and there is no reason to suppose they would take a different view with a same sex marriage or civil partnership.
In a 1964 case on the ground of cruelty - the precursor, and less onerous ground, of the modern unreasonable behaviour - the parties married when the wife was 18 and the husband 33. They had a child soon afterwards but sexual intercourse ceased about one year later. After 15 years of the husband refusing intercourse, the wife left home. She alleged   her health had suffered. She was refused a divorce and her appeal was thrown out. “I’m not satisfied,” said the appeal judge, “that the husband was guilty of inexcusable conduct. In view of his natural disinclination for sexual intercourse, to find him guilty of cruelty is rather like beating a dog because it will not eat its food.”
And in a 1977 case, the wife was refused a divorce because of her husband’s alleged unreasonable behaviour which was based on an unsatisfactory sex life. She said he had been cold and indifferent to intercourse. This had taken place about once a month and, when it did, the husband quickly withdrew. There were upsets and this wife also left home. Even though her word was accepted, the judge hearing the case decided that unreasonable behaviour had not been proved and an appeal court came to the same conclusion.
In 1980 the Court of Appeal ruled that sexual intercourse once a week over a three month period did not amount to unreasonable behaviour when the 30 year old husband used this as the foundation for his divorce petition against his 31 year old wife. The couple had two children during a ten year marriage. The couple had has sexual difficulties over the years and the husband had undergone a vasectomy. The wife’s rationing had followed that procedure. Lord Justice Ormrod said: “I find it wholly unreasonable to say that she (the wife) was behaving unreasonably.”
If these first two cases were to be rerun now, I would be surprised if the results would be the same. So it is that the party for whom sex is off the matrimonial agenda is vulnerable to their spouse or partner using this as justification for seeking a marriage annulment, a divorce or a partnership dissolution and to the financial consequences which could follow. It all depends on the circumstances of each individual case but vulnerability does exist.
My no-sex agreement which you will find in Breaking Law can be adapted to a civil partnership and to cater for some sex between opposite sex parties which falls short of intercourse. It could scupper an attempt at an annulment of an opposite sex marriage or divorce or civil partnership dissolution on the basis of no-sex  However, in some situations it might not work. Take this one. A healthy and young opposite sex couple enter into an agreement and marry. Later, the wife changes her mind about sex and wants a child through intercourse. The husband though perfectly capable of the act refuses her. The court might well say that the husband’s conduct amounted to unreasonable behaviour despite the agreement. There is also a risk that the court would say that the agreement had to be ignored on the ground that it was contrary to public policy and unreasonable. Be that as it may, in the right circumstances, worth  a try and, at the least, the agreement could well deter both parties from bringing the bedroom into their matrimonial dispute. That cannot be a bad thing: bedrooms are better left as places of privacy.