Can You Divorce Your Wife for Not Consummating the Marriage?

By River Braun, J.D.

Can You Divorce Your Wife for Not Consummating the Marriage?

By River Braun, J.D.

Consummating the marriage, or entering a sexual relationship after the wedding, at least once is the factor that decides whether a spouse seeks a divorce or an annulment. Divorce laws vary by state, however, many states recognize that a failure to consummate a marriage is grounds for annulment. In some states, a spouse may seek a divorce on the grounds that the spouse may have consummated the marriage, but the spouse now refuses to continue having sexual relations.

Concerned man sitting at the foot of the bed as a woman sits behind him

Annulment for Refusal to Consummate the Marriage

After a wedding, it is customary and expected that the parties live together and consummate their legal union. If a couple does not have sexual intercourse after the wedding, either spouse may file for a divorce or annulment of the marriage. Annulment is the legal process of canceling a marriage. The court "erases" it because it was invalid based on a specific legal ground. For instance, bigamy is also a ground for having a marriage declared null and invalid.

Some states allow a spouse to seek an annulment if the other spouse refuses to consummate the marriage. However, some states also require the spouse seeking an annulment to prove that the spouse withholding sexual relations was deceitful in his or her intent when entering the marriage. In other words, following the example in the title, the wife entered the marriage with the intent of not consummating it, although she led the husband to believe that the parties would engage in sexual relations after their wedding. If a state does not allow annulment on the grounds of lack of consummation, a spouse may be entitled to a divorce.

Abandonment or Constructive Desertion as Grounds for Divorce

Most states permit a spouse to obtain a divorce on the grounds of abandonment. If one spouse were to leave home permanently, the other would be entitled to file for divorce for desertion or abandonment.

However, some states also permit divorces on the grounds of constructive desertion. Constructive desertion means that the spouse did not physically leave, but the spouse's actions prove that the spouse intended to "abandon" the marriage without physically moving out of the home. The divorce laws in some states recognize that act of unreasonably and willfully withholding sexual relations, combined with other acts that indicate the spouse intends to abandon the marriage relationship, is a valid ground for a divorce.

Divorces Based on No-Fault Statutes

Additionally, a spouse may seek a divorce because of irreconcilable differences. These no-fault divorce statutes do not require proving that a spouse refused to consummate the marriage or to engage in sexual relations.

A few states do not have true no-fault statutes, so they require the spouses to live separately for a period of time before the courts grant a divorce. For instance, South Carolina requires spouses to live apart, without engaging in sexual relations, for at least one year before the court grants a divorce without requiring one spouse to prove fault for the marriage breakup, such as abuse or adultery.

State law dictates whether someone may have their marriage annulled or if they must file for a divorce if their spouse refuses to consummate the marriage. An annulment, when allowed, may be quicker, easier, and less costly than a divorce, but the option to end the marriage through divorce is available when a spouse refuses to engage in sexual relations after the wedding.

This portion of the site is for informational purposes only. The content is not legal advice. The statements and opinions are the expression of author, not LegalZoom, and have not been evaluated by LegalZoom for accuracy, completeness, or changes in the law.