AB v. CB [1906] ScotLR 43_411 (03 March 1906)

AB v. CB [1906] ScotLR 43_411 (03 March 1906)

Where a marriage has not been consummated, and the husband is able and willing, has made repeated attempts short of force, and there is no evidence of wilful refusal or structural defect, the Court is entitled to infer practical incapacity in the wife and grant a decree of nullity.

Citation
[1906] ScotLR 43_411
Parties
Pursuer (husband): AB; Defender (wife): CB
Jurisdiction
Scotland
Judgment Date
03 March 1906
Procedural Posture
Action of Declarator of Nullity of Marriage / Appeal (reclaiming Motion) to Inner House, First Division
Outcome
Decree of nullity of marriage granted in favour of the pursuer; interlocutor of Lord Ordinary recalled except as to expenses.
Legal Topics
Nullity of Marriage, Impotency, Consummation, Incapacity
Family Law Nullity of Marriage Impotency Consummation Incapacity

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Parties

AB

Pursuer (husband)

CB

Defender (wife)

Procedural Posture

Action of Declarator of Nullity of Marriage / Appeal (reclaiming Motion) to Inner House, First Division

Legal Issues

  1. 1 Whether incapacity for consummation in a wife must be structural or may be inferred from impracticability of consummation without structural defect
  2. 2 Whether the facts and evidence justify a decree of nullity for impotency

Ratio Decidendi

Where a marriage has not been consummated, and the husband is able and willing, has made repeated attempts short of force, and there is no evidence of wilful refusal or structural defect, the Court is entitled to infer practical incapacity in the wife and grant a decree of nullity.

Court Disposition

Decree of nullity of marriage granted in favour of the pursuer; interlocutor of Lord Ordinary recalled except as to expenses.

Orders

  • Marriage declared null on ground of defender's incapacity (impotency)
  • Defender entitled to expenses since 22nd November 1905