BAXTER v. BAXTER IN PERSPECTIVE
| Author | L. C. B. Gower |
| Date | 01 April 1948 |
| DOI | http://doi.org/10.1111/j.1468-2230.1948.tb00082.x |
| Published date | 01 April 1948 |
BA~X.2'ER
V.
BAXTER
IN
PERSPECTIVE
THE
rule in
Cowen
v.
Cowen,'
the so-called
'
contraceptives case
',
after
a
brief but not unsensational career, has now gone.
It
decided,
of course, that where throughout the marriage one partner had
refused to permit sexual intercourse except with the
use
of contra-
ceptives
or
coitus interruptus then the marriage hnd not been
consummated, and the other partner could have the marriage
annulled provided he
or
she had not acqui,eseed in this course of
conduct.
It
was followed by a spute of petitions
on
similar grounds.
Most of these were unreported, but of thosc that were the most
remarkable was
J.
v.
J.,*
in which a wifc succeeded in haviiig
annullcd in
1047
a marriage celebrated in
108C
bccuuse immediately
prior to the marriage the husband had had himself sterilised by an
operation performed with her knowledge, though against her wishes.
In
Baxter
v.
Bamter
the husband petitioned on the ground that the wife had
refused to permit him intercourse unless he used a contraceptive
Both the judge of first iustance and the Court of Appeal
.'
dismissed the petition on the ground that, as he had submitted to
the wife's demands for ten years he was barred by acquiescence.
The House
of
Lords unanimously overruled this decision. They
held that there was no acquiescence as the husband had always
protested and had only used contraceptives because he would
have had np intercourse at all if he had not; nor could he
be
blamed
for
the ten years' delay as he could hardly he expected
to
anticipate the decision in
Cowen
v.
Cowen.
On the other hand they
decided that the marriage had been consummated and that
Cowen
v.
Cowen
was wrongly decided.
The judgment aroused perhaps greater public interest than any
legal decision in recent years
;
the correspondence columns of the
newspapers were filled with comments (mainly adverse), questions
were asked in the House of Commons,o and
a
statement was issued
by the Archbishop of Canterbury.' Undoubtedly
it
raised questions
of far-reaching social consequence on which the opinions of the
public are as divided as those of the judiciary. But before these
In both these cases it was the wife who petitioned.
[l946]
P.
3G
(C.A.).
[l947]
P.
168
(C.A.).
Whether
tho
Cowen
Y.
Cowen
rule
would
hevo
npplied
lo
B
caao where
the
wifo 8lono
hnd
ueed contreceptivce wae discuseed
by
the
H.L.
in Bazler
Y.
Bozter,
[lo471
2
All
E.R.
886
at
p. 899,
but
it
is
now
of
only
academic
intereat.
[lo471
1
All
E.R.
387.
Supra,
note
8.
tleo
The Times
newapnper, Jnn. 27,1048;
Hotisard,
Jnn.
26,
p.
656.
The Times
newspaper,
Feb.
G,
1U48.
170
.\l~illl.
l!)!ti
U.\XTER
1:.
UAXTER
IN
PERSPECTIVE
17:
inutters cnn. 11c
discussed
it
is necessary
to
anulysc the grounds
of
the dccision and
to
consider
it
in relation to other rcccnt cases
in
order to scc exactly what the present legal position is. Much of the
recent discussion has been
of
limited vulue because the decision
has
Imn dealt with in isolation nnd neither
it
nor its context seems
to
linve been fully undcrstood.
Wilful refusal to consunimate
wns
introduced as a ground for a
iiullity decrcc by the'Matrimoninl
Cnuses
Act,
1987,
s.
7
(l),
which
providcs
:-
'
A
marriage shnll bc yoidable on the ground-
(a) that the marriage has
iiot
been consummated owing
to
thc wilful rrfusul of thc respondent
to
coiisummate the
ninrritrge
'.
This
new ground supplcmentcd the existing ground of iricnpac;ty to
consummnte, and the courts had already gone some distniicc in this
direction by rccognising that invincible repugnance
to
the sexual
act constituted incnpiicity notwithstanding that there
was
no
physical Similarly it was clear that tlie law acxpted
as sufficient a psychologicnl incapacity of thc typc, recognircd by
riiedical sriencc
ns
iiot uncommon, in which the inability to con-
summate existed only in .relation
to
the otlicr sponsc find not
genernll~.~
Neverthclcss the extension was soinewliat anomalous becausc,
as
has often been pointed out,lo all other grounds for nullity depend
on circumstances existing nt the time of the celebration
of
the
marriage whercns the new ground depends on subsequent conduct.
It
is
therefore arguable that
it
should have been made
a
ground for
divorce, and this would certainly have avoided some absurd eon-
sequences exemplified by the recent cases of
Dredge
Y.
Dredge
and
Re
Dcruhirst."
1.
The Act of
1087
imposed
a
bar on divorce within three years
of
murriuge and such
u
bar would obviously
be
inappropriate in
this case.
2.
The new ground is closely related to the existing ground of
incapacity and
it
is often difficult to decide whether in fact non-
consummation is due to incapacity
or
wilful refusal. Hence the
convenient practice has been to petition on both grounds in the
nltcrnative, and it is often a toss-up which the court will choose.1J
Tn both cnses one of the main points for decision
is
whether the
But
to
this thcre were two objections
:-
8
G.
v,
G.,
[1'3J4]
A.C.
340.
'J
Ibid.
10
This
is
strcsscil
in
the
Priiiinlc's
rrrcnt slnlcnicnl,
ricprn.
11
[1947]
1
All
E.R.
20.
Anniilinciil
bnslordising
child
born
of
prc.innriIal
int.crcoiirsc
who
hod
been
legiliinote
lor
scvrntern
ycars
t
1''
[lO.l8]
1
All
E.H.
147.
Wife
hcld eiilitld
to
interest
daring
\\idonhood
in
lirst
Iiusbnnd's estotc
alter
second
inarrioge
niiriullcd.
13
In
on
unrcporlcd cow
this twin
the
court,
10
evcryone's surprise, chose
incnpacily notwitlistonding
tliat
the
innrriogc
Iiod
losfrd
for
thirty-fonr
yeora.
YOL
11
13
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