Marriage regulates parenthood without mandating parenthood

A valid marriage contract is a bit like a valid home insurance contract, by which the insurer agrees to protect you against potential household disasters.
1. You can say that the policy is perfectly valid before you ever exercise your right to claim on it. Equally, you can have a valid marriage before consummation or reproduction.
2. You can even intend to *never* invoke a claim on it (as adamantly as some never intend to have children).
3. However, you cannot say on the basis of 1 and 2, that the purpose of insurance is not intended for potential household losses. It is. It is also designed to regulate the insurer’s responsibilities, rather than mandate household losses. Marriage is, along with mutual fidelity, designed to regulate (rather than mandate) parenthood.

Something may be tolerated by law without the law making it legally intended by design. It is clear that coercion and non-consummation are legally tolerated (being voidable causes), but not legally intended.

A voidable marriage remains valid until one party is aggrieved enough to seek redress (and cannot be shown to have agreed to it). You can have a valid marriage, even though one or both partners consents to marriage under duress, or is deprived of conjugal rights. The law simply permits the aggrieved partner to cancel the marriage obligation with an annulment.

A valid marriage is invalidated though the petition of the aggrieved spouse. This is an accommodation of their personal privacy. The spouse must decide what they can tolerate, It does not mean that marriage is not geared towards this purpose. This does not mean that the institution of marriage can ever legally *intend* coercion or non-consummation.

Same-sex marriage legally intends non-consummation. It contradicts the purpose of marriage.

What is clear is that marriage allows society to channel the potential impact of heterosexual passion (including children) into stable committed responsibilities. Paul alludes to this in 1 Cor. 7:6 – 9, i.e. it is better to exercise that passion within a stable committed partnership (marry) than to burn.

Marriage law, by design and intent, accommodates the potential for children. The vows of marriage exchange mutual assurances that any potential children born of the wife will also be the husband’s parental responsibility: the automatic presumption of paternity.

Therefore, we must consider what the law, through marriage, intends to *regulate* (mutual fidelity and shared reproductive rights and responsibilities). Marriage is open to those couples who, the law considers, *at first sight*, have the constitutive (rather than tested) capacity for immediate lifelong fidelity requirement *and* potential reproductive responsibilities of marriage. This is why being already married, being of the same sex, being close family relations and being a minor completely invalidate a marriage.

How MPs in the most marginal seats (Election 2010) voted on gay marriage

Glenda	Jackson	Labour	Hampstead and Kilburn	For
Dan	Byles	Conservative	North Warwickshire	For
Jackie	Doyle-Price	Conservative	Thurrock	Abstain
Julie	Hilling	Labour	Bolton West	For
Debbie	Abrahams	Labour	Oldham East and Saddleworth	For
Paul	Blomfield	Labour	Sheffield Central	For
Gloria	De Piero	Labour	Ashfield	For
John	Denham	Labour	Southampton	For
Mark	Spencer	Conservative	Sherwood	Abstain
Annette	Brooke	Liberal Democrat	Mid Dorset and North Poole	For
Ian	Murray	Labour	Edinburgh South	For
Eric	Ollerenshaw	Conservative	Lancaster and Fleetwood	For
Anna	Soubry	Conservative	Broxtowe	For
Sarah	Newton	Conservative	Truro and Falmouth	For
Geraint	Davies	Labour	Swansea West	For
Alison	McGovern	Labour	Wirral South	For
Nigel	Mills	Conservative	Amber Valley
Toby	Perkins	Labour	Chesterfield	For
Chris	Williamson	Labour	Derby North	For
Diana	Johnson	Labour	Kingston upon Hull North	For
Ian	Austin	Labour	Dudley North	For
Russell	Brown	Labour	Dumfries and Galloway	For
Tessa	Munt	Liberal Democrat	Wells	For
David	Morris	Conservative	Morecambe and Lunesdale	Against
Simon	Danczuk	Labour	Rochdale	For
David	Wright	Labour	Telford	For
David	Winnick	Labour	Walsall North	For
Graham	Evans	Conservative	Weaver Vale	Abstain
Andrew	Jones	Conservative	Harrogate and Knaresborough	For
Edward	Balls	Labour	Morley and Outwood	For
Oliver	Colville	Conservative	Plymouth	For
Gisela	Stuart	Labour	Birmingham	For
Neil	Carmichael	Conservative	Stroud	For
Simon	Kirby	Conservative	Brighton, Kemptown and Peacehaven	For
Richard	Harrington	Conservative	Watford	For
Hywel	Williams	Plaid Cymru	Arfon	For
Linda	Riordan	Labour	Halifax	For
Naomi	Long	Alliance	Belfast East	For
Catherine	McKinnell	Labour	Newcastle upon Tyne North	For
David	Mowat	Conservative	Warrington South	For
Alison	Seabeck	Labour	Plymouth	For
Mary	Creagh	Labour	Wakefield	For
Jessica	Morden	Labour	Newport East	For
Stuart	Andrew	Conservative	Pudsey	For
Clive	Efford	Labour	Eltham	For
Tom	Blenkinsop	Labour	Middlesbrough South and East Cleveland	For
Mark	Lazarowicz	Labour	Edinburgh North and Leith	For
Valerie	Vaz	Labour	Walsall South	For
Lilian	Greenwood	Labour	Nottingham South	For
Gordon	Marsden	Labour	Blackpool South	For
Vernon	Coaker	Labour	Gedling	For
Mike	Weatherley	Conservative	Hove	For

Irrefutable arguments for preserving the current definition of marriage

The marriage vows involve an exchange of assurances. A wife's assurance that any of her potential offspring will be her husband's and a husband's assurance is that he will faithfully partner his wife in mutual support, including any potential offspring of the marriage as his own. The law recognises this with the presumption of paternity. If a man dies before his pregnant wife delivers his child, there is no onus upon the widow to prove her husband is the father.

Consummation is a standard part of all binding legal agreements. This is especially important when the law questions whether it was intention of both partners to view the commonly-held expectations as binding. Was there duress, or was it merely a hasty response to a casual infatuation? In establishing marriage as an institution, the law sets a minimum standard of mutual behaviour that demonstrates that both parties freely intended for the marriage to be treated as a binding commitment.

Before the 1857 Marriage Act was passed, consent to marry could be exchanged in private, rather than through an official ceremony. If the validity of the marriage was called into question by either partner, the inaugural act of coitus between a husband and wife served as demonstrable proof for honourable spouses of their intention to form a legally binding, sexually exclusive unit of biological kinship: the basis for a new offshoot of family. Courts could also examine pledges made in pre-marital correspondence between the parties.

So, sexual intercourse consummates the intentions of the parties to marriage. It is the demonstration of good faith in sexual exclusivity.

Although we now have formulaic vows of marriage exchanged before witnesses, the intention of either party for a lifelong sexual commitment can still be disputed. Any other kind of consensual sexual act does not connote (when considered with the exchange of solemn vows) an undertaking to build a unit of family together, since the potential for family is not involved in other acts.

In earlier press coverage, the proponents of same-sex marriage suggested that consummation was a ‘red-herring’ remnant of a past tradition. It shows the lengths to which the more radical elements in favour of same-sex marriage will go in re-defining marriage. It is now clear from the Government response that although consummation is understood to be a demonstration of openness to establish biological kinship, this element of marriage would now somehow have to be pressed into the service of same-sex marriage by maintaining a two-track system, one for each orientation. It is clear proof that while the motives for marriage and civil partnership may be the same, the cause of marriage, i.e. why it’s legally actionable is based on the foreseeable consequences of sexual intercourse, rather than any other kind of human affection. The law cannot enforce fidelity, but it can ensure that parties to a marriage are held accountable for the foreseeable outcomes of sexual intercourse within their committed partnership. Where marriage differs from any other relationship is that the institution relates biological parents to each other first as committed spouses and then to their own children, the normative outcome of heterosexual union.

Those who oppose this view of marriage often cite elderly, infertile and child-free marriages. ‘If marriage is about building a foundation for biological kinship’, they ask, ‘then why do we allow those without children to marry?’ Those who study logic among you know that it is a fallacy to apply a qualified exception to alter the general rule in an unqualified way: the converse accident. These are qualified exceptions. The vows of marriage are uniformly exchanged to encompass the *possibility*, rather than guarantee of offspring.

England’s father of the common law, William Blackstone, described the common law presumption of the lifelong heterosexual potential for offspring in this way: 'A possibility of issue is always supposed to exist in law, unless extinguished by death, even though the donees be each of them an hundred years old.’ (2 Blackstone Commentaries 125). A defence against the charge of adultery, that an unfaithful wife, past child-bearing age, could not taint the offspring of her husband (the original meaning of adultery) was dismissed on this principle.

Crucially, in law, you cannot be bound by exchanging marital assurances in a context in which the assurances have no meaning, e.g. permanent incurable impotence, yet this is exactly what same-sex marriage would uniformly entail. Non-consummation allows one party to consider the marital assurances to be invalid. Such a union can be annulled. In contrast, divorce would not be the remedy for this situation, as it does not return each partner to the state before entering the marriage. Yet, a same-sex relationship, by constitution, rather than by sterility, offers no assurances, or the slightest probability that the offspring are their own and no-one else’s. It intentionally, rather than incidentally, defeats the goal of these assurances exchanged in marriage.

It comes as no surprise therefore that the Government response to the consultation proposes a two-track system, in which non-consummation cannot be a ground for annulling a same-sex marriage. It is yet further proof that the shared social meaning of marriage needs to be demolished by the proposals. Whereas the meaning of marriage can evolve, it cannot do so in a way that destroys its inter-generational meaning. Otherwise, as is the case here, fundamental concepts are reduced to a mere trend. Changes to divorce laws are no comparison to this. Divorce existed long before the 1857 Marriage Act. It is only the civil jurisdiction, the possibility of re-marriage and the facts that warrant granting a divorce that have changed.

We all know the saying that ‘blood is thicker than water’. Finally, I would like to highlight one area in which gay marriage subordinates the primacy of biological kin that marriage currently upholds. It answers the question regarding how it would affect a fundamental right of those outside the gay community. The truth is that it will have an impact on the unrelinquished rights of biological fathers.
Currently, under the Human Fertilisation and Embryology Act 2008, the civil partner of the birth mother gains legal recognition as the second parent of a child conceived by assisted reproduction, but only if they use a UK licensed clinic. In licensed clinics, the donor consent uniformly relinquishes parental rights.
In contrast, married couples can employ less expensive informal assisted reproductive methods and the husband gains automatic parental recognition through the presumption of paternity. The law predicates this upon its respect for the vows of marriage and biological probability. Nevertheless, a biological father or surrogate in such a context may not wish to relinquish parental involvement and responsibility fully to a couple who have no blood ties to the child.
Let's say the proposals are implemented in the UK and a lesbian couple get married and they informally ask a friend to donate his sperm in order to have a child without recourse to an expensive licensed clinic. They agree together that he will share parental involvement and responsibility, but afterwards, find the arrangements intrusive and confusing. The law would now presume that the non-birth mother, who has no blood relationship to the child, to be the automatic second parent. The biological father will always lose out to a consistently fictional biological impossibility for every gay couple and case law proves that even DNA evidence will not improve the genetic father's chances of future involvement in his child's life.

The key difference is that, as far as the register office is concerned, the child of a heterosexual couple might have been conceived naturally. In the case of same-sex couples, the register office knows that the child could not possibly have been conceived naturally. The law would therefore be designed to override an informal parental agreement automatically to prioritise a rank impossibility for all same-sex couples.

What's contradictory is that those who insisted on the supreme biological rights of the mother over the unborn child when it comes to abortion, would now suggest that we deny that right to the biological father who has always wanted to participate in that child’s life..

Thus, the intention of the non-blood related partner would override the lifelong right of a child to know its committed blood-related father. This is not the same as adoption, which is subsidiary to biological parenting, i.e. where biological parenting has failed, been relinquished or is non-existent. This is overruling responsible biological parenting by prioritising a consistent impossibility in the case of same-sex couples. What changes would need to be made to HFEA to safeguard the rights of children to know a father who has not relinquished his participation in his child’s life.

Thus, marriage currently upholds the primacy of biological kinship as a foundation of good society. There are adequate legal provisions in civil partnership that do not alter the rights of biological fathers. There are adequate legal provisions in civil partnerships that do not uniformly prioritise a spouse with no blood relationship to a child above the rights of extended blood relations as well.

This is bad law and it deserves to be returned as such to those who drafted it.

GAY MARRIAGE. What's the real goal?

The real issue at stake in the recent Government response to the Consultation is amending the Human Fertilisation and Embryology Act (HFEA) 2008. For gay couples, the rules were changed to enable the female partner of the birth mother in a civil partnership to be recognised as the second legal parent (once both have legally consented), but *only* if the child was conceived through a licensed UK clinic.

The problem is that this law is only prospective and limited to conception through licensed UK clinics. It only affects children conceived after 6th April 2009. If the couple have children conceived by assisted reproduction before that date, or elsewhere, the partner of the birth mother has no automatic recognition as the legal parent. So, if they are not civil partnered, the partner has to go through adoption procedures and seek a residence order to secure her status in the life of the child.

Genderless marriage is then the magic wand. Under an amended HFEA, it would grant the same-sex spouse with a presumptive right of parenthood. This is what the Coalition is really after, since it would make the partner unrelated by blood, the automatic parent of any children conceived. It would assign a presumption of parenthood to a non-biological partner. Marriage will thenceforward promote a non-biological presumption that can override the rights of extended biological kin. Now, that's my problem.

The government knows that law courts have always favoured biological families. Genderless marriage laws will put the parental claims of non-biological partners AUTOMATICALLY above those of extended kin. If the birth mother dies, her former civil partner (now spouse) would be able to deny access for the extended blood relatives without recourse to law at all. This is why I re-iterate that marriage upholds the primacy of biological kinship.
N.B. Currently, the husband's presumptive right of paternity without recourse to the wife's explicit consent applies even to assisted reproduction procedures. It would require explicit proof that he did NOT consent to being the father to override the presumption.

As further proof, the government is quietly conducting a consultation to end the presumptive rights of adopted children to maintain any contact with their biological relatives and siblings.

HFEA 2008:
Section 35: (1)If—
(a)at the time of the placing in her of the embryo or of the sperm and eggs or of her artificial insemination, W was a party to a marriage, and
(b)the creation of the embryo carried by her was not brought about with the sperm of the other party to the marriage,
then, subject to section 38(2) to (4), the other party to the marriage is to be treated as the father of the child unless it is shown that he did not consent to the placing in her of the embryo or the sperm and eggs or to her artificial insemination (as the case may be).
(2)This section applies whether W was in the United Kingdom or elsewhere at the time mentioned in subsection (1)(a).

Commenting on the Six Social Goods of Marriage cited by Monte Neil Stewart of Duke University

http://scholarship.law.duke.edu/cgi/viewcontent.cgi?article=1000&context=djclpp

1. ‘The institution of man/woman marriage is quite certainly society’s best and probably its only effective means to make meaningful a child’s right to know and be brought up by his or her biological parents (with exceptions being justified only in the best interests of the child, not those of any adult)’.

Marriage provides a cohesive social framework to encourage parents to be recognised as a legal entity and privileged by the State in order to better their children in an environment that has been proven to be optimal: the biological family. It is not part of a normative role of the State to adjust the primacy of this optimal environment advanced by marriage or to endorse the view, when there is scientific evidence to the contrary, that a genderless partnership is equally optimal. Why should a relationship that lacks this optimal intent be established as the optimal environment, known as marriage? 

As Maggie Gallagher says: ‘Once we sever, conceptually, the sexual alliance and the parenting alliance, we sever children from their uncontested claim to their parents'-especially their fathers'-care and protection’. In other words, genderless marriage can normatively assign that child’s right to a non-biological surrogate and still endorse this as optimal. Even if this is in the best interest of the parents, it is not in the best interest of the child.

2. ‘The institution almost certainly qualifies as the most effective means humankind has developed so far to maximize the level of private welfare  provided to the children conceived by passionate, heterosexual coupling. Two essential realities of man/woman intercourse are its procreative power and its passion. Society’s interest relative to those realities is in assuring the provision of adequate private welfare to children. Child-bearing in a setting of inadequate private welfare corrodes societal interests while child-bearing in a setting of adequate private welfare actually advances those interests. In passion-based procreation, it is passion rather than rationality that may dictate the terms of the procreative encounter. Rationality considers consequences nine months hence, including the rearing of a child, but passion does not. Confining procreative passion to a social institution that will assure—to the largest practical extent—that passion’s consequences (children) begin and continue life with adequate private welfare is thus a fundamental and originating purpose of marriage. The immediate beneficiaries of this private welfare purpose are the child and the often vulnerable mother, but society rationally sees itself as the ultimate beneficiary’.

The law is not only there to protect and mediate, it is there to educate society by investing in children. It does so by legally recognising and endorsing the union of biological parents as the optimal way to invest in their children. There can’t be two optimal ways to invest in the private welfare arrangements of the child, one must be sub-optimal. The counter to this is the view of marriage as emotional intimacy. Maggie Gallagher explains it this way: ‘One view of marriage is that it is a personal right, of the individual, created by the individual, for purposes which the individual alone defines. When two individuals happen to have desires and tastes for each other that coincide for a lifetime, that is beautiful. If not, it is simply no one else's business.’ It begs the question that if marriage is simply a personal arrangement, why would the State be involved, or why marriage should require intimacy. What is the public good of endorsing a relationship that lacks the consequence and import of the social goods mentioned thus far.

3. Man/woman marriage is the irreplaceable foundation of the child-rearing mode—that is, married mother/father child-rearing—that correlates (in ways not subject to reasonable dispute) with the optimal outcomes deemed crucial for a child’s—and hence society’s—well being. These outcomes include physical, mental, and emotional health and development; academic performance and levels of attainment; and avoidance of crime and other forms of self- and other-destructive behaviour such as drug abuse and high-risk sexual conduct’.

If our politicians strip away all references to gender in marriage, and re-define it as any social pairing, it fails to endorse through law the optimal environment for child-rearing. They are saying that any and all sorts of pairings (which beyond five years can be ended by individual discretion) are equally optimal. While data on comparative outcomes for children raised by homosexuals may be sparse, the study led by Mark Regnerus of the University of Texas Austin's Population Research Center reported lower income levels, poorer mental and physical health and more troubled current romantic relationships than those of heterosexual marriages. Critics claim that sample sizes are not indicative of the entire population. Yet, those who cite an earlier study that found no differences had no problem with comparing the children of affluent, well-educated homosexual parenting with single-parent heterosexuals. At the very least, the evidence would suggest caution and prompt government funding for further research. To ignore the evidence and undermine the optimal environment for child-rearing by presenting same-sex relationships as equally conducive to child-rearing is completely irresponsible.

4. Man/woman marriage serves as an effective bridge over the male-female divide. “Marriage has always been the central cultural site of male-female relations” and society’s primary and most effective means of bridging the male-female divide—that “massive cultural effort of every human society at all times and in all places.”

The physical demands of pregnancy and supporting early child development require complementary responses from male and female spouses. Marriage normalises and reinforces the society’s support in maintaining those complementary roles. Children prepare for these roles by seeing good examples and the status accorded to those roles through the social prestige of marriage. It promotes interdependence between men and women, rather than child-rearing devoid of the paired commitment of both male and female biological parents.

5. Man/woman marriage is the only institution that can confer the status of husband and wife, that can transform a male into a husband or a female into a wife (a social identity quite different from “partner”), and thus that can transform males into husband/fathers
(a category of males particularly beneficial to society) and females into wife/mothers (likewise a socially beneficial category).

Marriage is the springboard of recognised kinship. It established the shared privilege of the dual role of spouse and parent. Genderless marriages cannot maintain this dual role on the basis of two congruent biological outcomes: consummation and child-birth.

6. Legally recognized and privileged man/woman marriage constitutes both social and official endorsement of that form of adult intimacy—married heterosexual intercourse—that society may rationally value above all other such forms.

Man/woman marriage uniquely delivers genetic diversity within stable permanent pair-formation to society. This diversity promotes genetic variations that ensure human survival, whereas genderless marriage doesn’t. It should not be promoted through marriage to society as delivering the same outcomes. The current framework of civil partnerships delivers equivalent legal and social recognition to homosexual couples. The European Court of Human Rights has declared that its interpretation of the European Convention of Human Rights entails no right of homosexuals to marry.

VALID MARRIAGE – A formal exposition

The validity of a marriage is determined by the society's belief that the permanent sexual union of two legally competent partners creates a new line of socially beneficial kinship. This cannot be established by political fiat alone. It is based on nature and tradition, by which I mean congruence with the natural and customary extension of society.

Kinship.

Our society's recognition of those actions that form permanent kinship by extending and morally interlocking existing families is rooted in human biology and history. If we heard a government minister claim that permanent kinship would now be predicated upon a kiss, or a hug, it would not change the social understanding of kinship: that kinship is inextricably linked to the history of human survival.

As a minimum, our kinship system is geared towards society recognising and investing in human survival. This is the cause of marriage, the development of a new line of permanent kinship geared towards human survival. In contrast, the motives of those getting married can and do differ.

Motive and cause in marriage law.

Motive and cause have different contractual meanings. Gay couples can lay claim to the same loving motives for marriage as a heterosexual couples. Nevertheless, by constitution, the relationship opposes the cause of marriage, i.e. the chief reason which society uses to determine that the promises of marriage should be permanent and legally enforceable (what society recognises that those who marry must agree to). The reason is not to enforce love. It can't, so love is not the legal cause of marriage. However, it can ensure that those who claim its support and validation as marriage cannot abdicate their responsibility to their spouse, offspring and extended family without cost.

Marriage laws enforce commitment to support all legitimate outcomes of the marriage jointly. It imposes a cost upon anyone who marries and then abandons that kinship arrangement.

Genetic diversity.

Marriage imposes a perpetual legal obligation that is predicated upon the outcomes of permanent exclusive union. Both forms of kinship (by marriage and by descent) are so closely related (cf. inheritance and incest laws) that they need to be congruent with each other. For example, close relation marriage is banned because it is incongruent with and opposes genetic diversity.

For our society to thrive, genetic diversity ensures that there is sufficient 'variation to ensure that some individuals in a population will possess variations of alleles that are suited for the environment'. The counter-argument that the world is already overpopulated cuts no ice. If a society does not maintain genetic variation, it can't survive upheaval and sudden environmental and habitat changes.

Homosexual relations are incongruent by constitution with genetic diversity. A different more potent same-sex pairing cannot further our society's genetic diversity. They are void of the goal of marriage: biologically predicated kinship.

The societal investment in same-sex relationships to the extent of calling them marriage does nothing to further the cause of marriage: the genetic diversity of society. They are largely privately beneficial relationships compared to the societal benefits of permanent heterosexual union.

Consummation

Consummation is the fulfilment of the inaugural legal intention of a contract. The law neither dictates exactly when this should happen, nor that it must result in offspring, but it does view it as a reasonable legally supported expectation of both parties to marriage. At the very least, the vow of fidelity is a commitment to the physical act of kinship-forming union with one person. There may be other acts, but 'ordinary and complete' intercourse is the minimum expectation (case law: D v A (1845) 163 ER 1039)

The fact that there are exceptions (through age and impotence) is an issue of individual incapacity that cannot be established in terms of changing universal rules for constituting all valid marriages. It does not mean that marriage should be constituted for the exceptions without qualification.

In fact, this is the converse accident fallacy: that one carefully qualified exception justifies an unqualified change to the general rule.

If consummation has never occurred owing to the permanent incapacity of one partner, or the refusal of one partner, it opens the marriage contract to the possibility of annulment: invalidation from the date of the wedding.

Annulment as a remedy.

Is annulment important? Annulment means that the requirements of the contract have no legal effect. It is not simply an aspect of marriage law, any contract can be voided for fundamental incapacity or non-performance of either party. This is fundamental to all contract law.

Void ab initio (from outset) contracts are those which demonstrate that at the outset both parties lack the capacity to be bound by the common legal expectations of the contract. The difference with marriage is that those expectations are established by long tradition and case law.

Void marriages are invalid marriage contracts. For instance, if either party is under 16, already lawfully married, if parties are not of opposite sex, or within prohibited degrees of relationship, the constitution of the marriage is deemed invalid from the outset.

Voidable marriages are open to be avoided by either party, unless the petitioner knowingly accepted the incapacity or deception, once it was revealed. There are defects of:

1: Form: the marriage was not solemnised lawfully;

2: Contract: if either party lacked the intent or capacity to enter into a lifelong kinship-forming sexual union, as evidenced by consummation;

3: Consent: If either party was coerced, or deceived, or mentally incapable, so that they lacked willingness, and therefore lacked intent.

Annulment releases the petitioner from any legal claim from the respondent to divide assets equally or provide on-going spousal support. It is as if the exchange of consent had not occurred. It may be granted immediately and back-dated to the wedding ceremony, whereas divorce currently requires a minimum of 1 year’s marriage, 2 years by mutual consent, 5 years without consent.

In spite of secularisation and 'no-fault divorce', if divorce is the only remedy for an innocent party, deceived, or denied coitus as a reasonable expectation of marriage, it carries an unacceptable stigma that the petitioner's behaviour in the matter was not completely above reproach.

Even if non-consummation was treated as evidence of unreasonable behaviour, divorce would still make the petitioner liable to claims for division of assets and spousal support. However small the minority, it is grossly unfair to force those who would have petitioned for an annulment to endure the stigma of divorce. Voiding the marriage is the proper remedy for deception, duress or refusal or incapacity to consummate.

Annulment is an important remedy for voidable contracts of all kinds, including marriage. It should not be abandoned to provide a consummation-free definition of marriage. It is not fair to re-define consummation without gender references (which is too vague and open to judicial misinterpretation). It is not fair to remove consummation as a ground for voiding marriages in which one partner denies or is incapable of sexual union.

What you can't do is have disparate standards of consummation for the single estate of marriage, whether it is entered by civil or religious means. Just as there is only one status of British citizenship regardless of whether it is entered by birth or naturalisation.

The soul should never be sold

For a while, conscience may hinder a betrayal, but it cannot alone keep us true. 

For once our moral boundaries have been breached, the grim race to compromise faith, friendship and love for selfish ends begins. To compromise these is to auction away the highest and best of our humanity: we sell our very souls.