White (otherwise Berry) v White

JurisdictionEngland & Wales
Date1948
CourtProbate, Divorce and Admiralty Division
[PROBATE, DIVORCE AND ADMIRALTY DIVISION] WHITE (OTHERWISE BERRY) v. WHITE. 1948 May 11, 12. Willmer J.

Divorce - Nullity - Insistence by husband on practice of coitus interruptus - Whether wilful refusal to consummate the marriage - The nature of consummation - Decree of nullity refused - Coitus interruptus as cruelty - Supreme Court of Judicature (Consolidation) Act, 1925 (15 & 16 Geo. 5, c. 49), s. 176 (c) - Matrimonial Clauses Act, 1937 (1 Edw. 8 and 1 Geo. 6, c. 57), ss. 2, 7, sub-s. 1 (a).

The consummation of a marriage does not depend upon the completion of the sexual act by the male within the body of the female. It is consummated when there is vera copula, and that complete conjunction of the male and female bodies occurs as soon as the male has achieved full entry and penetration. What follows goes merely to the likelihood or otherwise of conception, which is to be distinguished.

Once full entry and penetration have been achieved the marriage has, therefore, been consummated; and the practice of coitus interruptus against the wishes of a wife cannot amount to a wilful refusal by the husband to consummate the marriage.

Baxter v. Baxter [1948] A. C. 274, and the application therein of the principles enunciated in D. v. A. (1845) 1 Rob. Ecc. 279 (as followed and interpreted in L. v. L. (1922) 38 T. L. R. 697), concerning the distinction between a natural coitus and an act in which the possibility of conception is involved, considered and applied.

The persistent refusal by a husband to have intercourse other than by coitus interruptus may, however, cause injury to the health of the unwilling spouse, and in such a case that spouse will be entitled to a decree of divorce on the ground of cruelty.

Observations of Viscount Jowitt L.C. in Baxter v. Baxter [1948] A. C. 274, 290, as to contraceptive practices forming the back-ground to some other claim for relief applied to the issue of cruelty.

DEFENDED PETITION for nullity of marriage or in the alternative for dissolution thereof.

By her petition, dated June, 1947 (which was therefore anterior in date to the decision of the House of Lords in Baxter v. BaxterF1) Bertha Eva White (otherwise Berry) prayed for a decree of nullity on the ground that the respondent, George Bolton White, had wilfully refused to consummate the marriage. In the particulars of such refusal it was alleged that “the respondent wilfully refused to consummate the marriage by resorting to the practice of coitus interruptus on each and every occasion that intercourse took place” (such occasions being infrequent).

Consequent upon the said decision of the House of Lords the petition was amended in March, 1948, by the addition of an alternative plea, namely, that “the respondent has treated the petitioner with great unkindness and cruelty in that …. he deliberately insisted on the practice of coitus interruptus in his sexual relations with her despite her protests and with a full knowledge that his persistence in such practice would and in fact did cause injury to her health.”

The respondent's answer, and amended answer, consisted of a denial of each and every allegation, and there was no cross prayer for relief.

The marriage took place in 1937 when the parties were both young, and there was no separation due to active service during the war years. From 1943 onwards the petitioner had constant nervous trouble and had to visit hospital on more than one occasion. When in hospital in November, 1946, she finally decided not to return to the respondent; and thereafter there was no resumption of cohabitation.

Marshall Reynolds (Cridlan with him) for the respondent. The Lord Chancellor in his judgment in Baxter v. BaxterF2 stated: “Before examining that case (Cowen v. CowenF3 I wish to make an observation on one practice referred to in this summary of facts, namely, that of withdrawal before emission, or coitus interruptus. This practice, as distinct from artificial methods of contraception, does not arise in the case before the House and I prefer to express no opinion about it.” The question whether or no the practice of coitus interruptus amounts to a consummation of the marriage is therefore left open for decision; but in considering that matter Baxter v. BaxterF4 must be closely examined, and it is submitted that a study of the principles which were previously laid down, and which were affirmed and applied by the House of Lords, will provide authority for holding that coitus interruptus is in fact a consummation of the marriage. (Baxter v. BaxterF4 was read in full.) Consummation is therefore, it is submitted, a matter of vera copula, which is to be distinguished from an act which may result in procreation. See Dr. Lushington's judgment in D. v. A.F5. See also Lord Stair's Institutions, in which it is said that procreation is not an essential of marriage.

The practice of coitus interruptus, indeed, does not necessarily avoid the possibility of procreation where the spouses are normal, so that should coitus interruptus be held to be a ground for nullity, there might be children born of a marriage declared void for lack of consummation.

(Counsel then dealt with the issue of cruelty, submitting that the charge had not been made out in accordance with the well-known principles of the court where cruelty was alleged.)

Victor Williams for the petitioner. There was no consummation of the marriage as the act of sexual intercourse was never completed in the body of the petitioner. It was fair to infer from the specific exception by the House of Lords of coitus interruptus that Baxter v. BaxterF6 was not intended to be prayed in aid as authority for contending that by that practice a marriage might be consummated. Lord Stair's Institutions had been referred to; but in the passage quoted by the House of Lords in Baxter v. BaxterF7 were the words: “the general end of the institution of marriage, is the solace and satisfaction of man.” Coitus interruptus was a practice which could not give solace or satisfaction to an unwilling spouse, for the act of coition was not completed either with or without the mechanical means of contraception with which the House of Lords were directly concerned. Indeed, in the present case the practice had caused serious nervous strain as borne out by ample medical evidence; so serious that should it be held that this marriage was in fact consummated, it is submitted that there is abundant evidence on which the petitioner should be granted a decree on the ground of cruelty.

WILLMER J. summarized the pleadings and said that where there was a conflict of evidence he believed the wife petitioner. His Lordship continued: I can state the salient facts quite briefly. The parties were married, or went through a ceremony of marriage, in September, 1937. It is common ground that no intercourse at all took place for six months and that coitus interruptus took place about six months after the marriage. The wife's case...

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2 cases
  • Sheldon v Sheldon
    • United Kingdom
    • Court of Appeal
    • 31 March 1966
    ...with his wife except with contraceptives or by coitus interrupted, thereby depriving his wife of the chance of having a child, see White v. White, 1948 Probate, p. 330:Walsham v. Walsham, 1949 Probate, p. 350; Cafkett v. Cafkett, 1950 Probate, p. 253;Knott v. Knott, 1953 Probate, p. 249.......
  • Fowler v Fowler
    • United Kingdom
    • Court of Appeal
    • Invalid date
2 books & journal articles
  • TRANSSEXUALS AND SEX DETERMINATION
    • Singapore
    • Singapore Academy of Law Journal No. 1992, December 1992
    • 1 December 1992
    ...has been held to be incapable of consummation in Australia — see G v. G[1952] V L R 402 but this has been questioned in White v. White [1948] p. 330. See also the Canadian case of Miller v. Miller[1947] O R 213 (CA). Emission of seed has been held to be irrelevant to the question of consumm......
  • Le Mouvement des Idées et des Faits
    • United Kingdom
    • International Review of Administrative Sciences No. 16-2, January 1950
    • 31 January 1950
    ...«Sociologíagénérale»(TravauxdelaFacultédePhilosophieetLettresdel'UniversitélibredeBruxelles.Paris.LesPressesUniversitairesdeFrance,1948, p. 330 etsuivantes:Désordredecroissanceetprogres),l'augmentationdunombredesindividusrendla viesocialeplusintense;elle apoureffet demul-tiplíerdanschaquegr......

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