G v. G

Factual and Procedural Background

The Appellant and the Respondent married on 5 November 1913. Prior to the ceremony the Respondent insisted, and the Appellant agreed, that no sexual intercourse would occur during the first year of marriage. The couple lived together overseas from November 1913 until April 1914 and observed the agreed abstention. After several periods of separation and reunion in different locations (including two further periods of co-habitation lasting roughly nine months and one week respectively), the Respondent continued to refuse intercourse despite the expiry of the one-year pact and repeated attempts by the Appellant.

On 14 April 1921—more than eight years after the wedding but with only three relatively brief periods of co-habitation—the Appellant brought proceedings in the Court of Session seeking (a) a decree of nullity on the ground of the Respondent’s incapacity to consummate the marriage, or (b) in the alternative, divorce on the ground of desertion founded upon wilful and malicious refusal of intercourse. The Lord Ordinary dismissed the action, and the Second Division adhered (one judge dissenting). The Appellant appealed to the House of Lords.

Legal Issues Presented

1. Whether the Respondent’s continuous refusal to consummate the marriage was the result of an incapacity (specifically, an “invincible repugnance” to the sexual act) rather than a wilful decision, thereby justifying a decree of nullity.
2. If incapacity were not proved, whether the Respondent’s refusal amounted to desertion sufficient to ground a decree of divorce (an issue ultimately left undecided in light of the court’s answer to Issue 1).

Arguments of the Parties

Appellant's Arguments

• The Respondent’s persistent refusal, extending over several years and despite multiple opportunities, could only be explained by psychological incapacity rather than mere obstinacy.
• Medical examination showed no structural abnormality; therefore, incapacity must be inferred from conduct (“invincible repugnance”).
• In the alternative, the Respondent’s conduct constituted wilful desertion.

Respondent's Arguments

• Denied any incapacity and asserted that refusal stemmed from personal choice; she was physically capable of consummation.
• Contended that the pleadings did not disclose a relevant case of desertion.
• Relied on affectionate correspondence, particularly a letter dated 20 November 1920, to show continuing marital goodwill inconsistent with abandonment or incapacity.

Table of Precedents Cited

Court's Reasoning and Analysis

Delivering the leading speech, Judge Dunedin undertook a detailed chronological analysis of the parties’ relationship:

• First period (initial year): The Appellant honoured the abstention pact; no attempt at intercourse was made.
• Second period (overseas, December 1914–September 1915): After the pact expired the Appellant made “many” clear attempts at intercourse, all repulsed, some ending in ejaculation ante portam. The Respondent never relied on the original pact as an excuse.
• Correspondence 1915–1920: Letters from the Respondent revealed fluctuating affection, jealousy, and a 17 February 1916 request for permanent abstention; the Appellant’s replies remained affectionate yet firm in seeking consummation.
• Perth episode (November 1920): Following discussion, the Respondent verbally agreed to full marital relations, the 1916 letter was ceremonially burned, and the spouses shared a bed for several nights. The Appellant stated he again attempted intercourse and was physically rejected; the Respondent alleged he voluntarily renounced his rights out of concern for her age. The court found the Respondent’s version “wildly improbable.”

The majority concluded that:

• The pattern of behaviour pointed to an incapacity rooted in a deep-seated psychological repugnance rather than mere caprice.
• The affectionate tone of the Appellant’s 20 November 1920 letter did not undermine this inference; it was consistent with his longstanding patience and hope.
• The Perth incidents could not be isolated from the earlier, longer period of failed attempts abroad; together they provided adequate opportunity to test capacity.
• Because incapacity was established, discussion of desertion became unnecessary.

Holding and Implications

HELD: The appeal is allowed; the interlocutors of the Court of Session are reversed; the cause is remitted with instructions to grant a decree of nullity in terms of the first conclusion of the summons.

Implications: The decision re-affirms that psychological or emotional inability to engage in sexual intercourse—labelled “invincible repugnance”—can constitute legal incapacity sufficient to render a marriage void, even where no structural defect exists. The court expressly declined to rule on the alternative ground of desertion, and no new doctrinal test was created beyond approving the earlier authority cited.