British Columbia Court of Appeal Finds ‘Honest and Sincere Religious Belief’ Grounds to Avoid Sex



The British Columbia Court of Appeal stated that an “honest and sincere religious belief” should be considered a ground for avoiding the sex necessary to consummate a marriage.

The highest court in the province last week annulled the marriage of a Sikh couple who married civilly but claimed they had never slept together because they broke up while awaiting a religious ceremony for consecrate the union.

A lower court judge refused to annul the marriage because religious reasoning failed the long-standing legal test for failure to consummate a marriage – “physical or psychological incapacity.”

The appeals court judges ruled that “in the multicultural society that our nation reflects”, the law must be applied “in accordance with the cultural norms of the parties seeking annulment.”

“The [B.C. Supreme Court] judge insisted too much on the agreement of the parties not to consume, ”says the ruling.

“[The judge] did not give enough weight to the fact that the deal reflected an underlying aversion to consumption before the end of a Gurdwara ceremony. “

“Caprice is not a sufficient motive”

The decision contrasts the long legal history of marriage law with the realities of a diverse Canada.

According to the decision, the “founding Canadian” precedent for annulment is a 1942 Supreme Court of Canada case known as Heil v Heil.

In this situation, a doctor married a woman he met in Vienna in 1937 while studying.

The couple boarded the Empress of Britain for Canada, after which she immediately left to visit an aunt in New Hampshire and he left to look for work.

According to the decades-old ruling, sex escaped the couple the following year; they caught a glimpse of each other as he moved to Ottawa, then to Timmins, and she was on her way back to Europe.

She claimed she had “fulfilled her marital duties,” but Canada’s highest court did not believe her.

They also did not accept a trial judge’s finding that “she was mentally incapable of having sex between a man and a woman”.

The British Columbia Court of Appeal stated that an “honest and sincere religious belief” should be considered a ground for avoiding the sex necessary to consummate a marriage. (David Horemans / CBC)

This laid the foundation for a standard that is still accepted today.

“The refusal of sexual intercourse is the result of stubbornness, which is a creature of his will, and not the result of an invincible reluctance to the physical life of marriage,” wrote the justices of the Supreme Court of Canada.

“The simple refusal of marital relations on a whim is not a sufficient reason to justify a judgment in nullity.”

“Indeed, the end of the relationship”

In the case of British Columbia, the woman – PK – met her future husband – GS – after arriving in Canada as a student in 2017.

They got married in February 2019.

“They wanted to marry civilly to be able to live together, which would be against their religion, but they postponed the consumption until they underwent a traditional ceremony of Gurdwara”, indicates the decision of the court of appeal. .

After the civil marriage, they claimed that they lived separately in the same house, which they shared with friends.

GS was suffering from depression and PK claimed they started arguing.

“I decided to leave this place because it was affecting my studies and my job as well. So I just decided to get out of this thing because it was – was affecting my health and my emotional health so much,” PK said. at the bottom search.

“It was indeed the end of the relationship,” said the appeal court’s decision.

But the trial judge refused to annul the marriage.

She said it looked like PK and GS had simply “decided” not to consummate their marriage.

The judge said PK was not claiming that “the marriage could not be consummated because one of the parties is unable to have sex resulting from physical or psychological incapacity”.

Not necessary or appropriate today

Last year, a British Columbia Supreme Court judge annulled a marriage after finding the husband couldn’t maintain an erection.

This case looked at the graphic legal history of cases in which courts once required physical evidence of impotence.

“I am not convinced that this extremely high standard of proof is necessary or appropriate today,” wrote Justice Wendy Baker.

Likewise, considering the reasons why PK and GS were unable to consummate their marriage, the Court of Appeal considered that the trial judge “focused too much on the physical and psychological aspects of capacity in the traditional sense. of the term ”.

“They wanted to live together, but according to their cultural norms, they couldn’t do it without ceremony. Hence the civil ceremony. Sikh Gurdwara ceremony, and therefore did not consummate it, ”the judges wrote.

“The real aversion to consumption arose out of their religious beliefs, creating real incapacity.”


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