S 12(1)(b) Wilful Refusal

Question 1

What is wilful refusal

Answer 1

Not any refusal to have intercourse will suffice, since consummation need occur only once refusal to repeat will not render the marriage voidable, though it may be grounds for divorce.

Question 2

Horton v Horton

Answer 2

wilful refusal was described as a ‘settled and definite decision reached without excuse’. In Horton consummation had been delayed by war, and an unsuccessful attempt to consummate had been made before. In light of the wife’s anxiety to resolve the problem, it could not be said that she was willingly refusing.

Question 3

Potter v Potter

Answer 3

Mrs P was unable to have intercourse due to physical problems, which she had surgery to remedy. However, after surgery she was not emotionally ready. After one failed attempt, Mr P then refused to consummate the marriage. Mrs P seeks a decree of nullity, the court denied this on the basis it was natural. His refusal was the result of his loss of sexual ardour rather than a deliberate decision.

Question 4

Ford v Ford

Answer 4

were frustrated by the husband’s imprisonment in an institution with no facilities for conjugal visits, and rules prohibited intercourse during prison visits. Despite other couples ‘taking their chances’, the husbands refusal did not amount to wilful refusal.

Question 5

S v S

Answer 5

a refusal to undergo reasonable surgery would constitute wilful refusal to allow for consummation to take place.

Question 6

Where has the concept of wilful refusal been extended to

Answer 6

refusal has special meaning in marriages between parties whose faith demands that a religious ceremony be performed and a civil ceremony before intercourse is permitted.

Question 7

Kaur v Singh

Answer 7

the husband’s refusal to perform his obligation to arrange such was interpreted as a wilful refusal to consummate, showing the broad interpretation by the courts.