Dr Proudman was instructed by Ms Emily Reed, Duncan Lewis Solicitors, on behalf of the wife to apply for a divorce. The husband had applied for a decree of nullity on the ground of non-consummation, which the wife opposed. The husband had sought at a previous hearing for the wife to undergo a hymen examination to prove that she’s still a virgin. Dr Proudman stated that such a procedure is abusive and in breach of her human rights.
The wife had claimed that the current law in respect of annulment is incompatible with human rights legislation. However, this argument was not pursued to a final conclusion because the husband agreed to a divorce on the grounds of his unreasonable behaviour at the hearing.
However, the case highlights important issues in respect of this area of law. The wife argues that the law is outdated and intrusive with intimate examination of the parties’ private lives required for the court to reach a decision. The law in respect of annulment on the grounds of non-consummation is outdated and is not fit for modern life where concepts of relationships and families do not necessarily accord with the “traditional” understanding of family life at time these principles were set out.
Counsel, Dr Charlotte Proudman of Goldsmith Chambers comments:
“The law is woefully archaic and patriarchal, it needs modernising to bring it up to date with contemporary understandings of marriage and relationships. My concern is that the law can be used by alleged perpetrators to further the abuse of domestic abuse complainants – yet it does not afford the same right to complainants to annul their marriage. This is both discriminatory and a breach of Human Rights.
“These hearings are highly unusual; they are almost unheard of nowadays. Mr Justice Moor said that he had only come across two such cases in around 40 years. For a judge to decide whether a marriage was consummated, they would have to investigate the most intimate and personal details about their sex life. The law is outdated and does not recognise modern marriages. To carry on the view of the law that there is one version of sex, penile penetration, for a marriage to be valid is patriarchal. The law is clearly written from a male perspective. The law needs changing.”
Solicitor, Emily Reed comments:
“This is an interesting case which raises important issues about the law and its suitability in the modern world. Not only is the law said to be discriminatory and outdated but unfortunately for these parties, it has also meant that in order for a resolution to be reached intimate details of their private lives had to be aired before the court. Happily for the wife, she can now proceed with her divorce but the issues with the law remain. It is promising for parties and practitioners alike that reform in some areas, including divorce, is expected soon but cases like this demonstrate that there is still more to do on a wider scale to bring family law up to date and fit for modern families.”
Related barristers: Dr Charlotte Proudman