A touchy subject to discuss, but one which becomes an issue from time to time, is the subject of impotence as grounds for divorce. In Massachusetts, a spouse may choose to request either an annulment or a fault-based divorce on the grounds of the other party’s impotence. Choosing to file for divorce means the spouse may request the division of marital property in line with the applicable domestic relations statutes.
What is impotence?
According to Black’s Law Dictionary, impotence means “the incapacity for copulation or propagating the species,” for purposes of medical jurisprudence. It is important to discuss here that impotence does not mean infertility for purposes of family law and divorce. Infertility, referring to an inability to conceive a child, is not a ground for a fault-based divorce in Massachusetts. However, impotence, referring to an inability to copulate, is grounds for divorce or annulment.
What cases have addressed this issue?
Only a few (generally older) cases have addressed the issue of impotence as fault grounds for divorce in Massachusetts. The cases typically deal with issues of impotence which exist at the time of marriage and not issues which develop later in the marriage.
Examples:
In one case, the husband filed for divorce based on impotency where sexual intercourse was impossible without causing the wife such pain as to endanger her health. [1] In that case, after the parties lived together for nearly seven years, a physician advised them to separate. The husband’s request for a divorce was granted. In another case, the husband was likewise granted a divorce where, unbeknownst to him, the wife suffered from congenital physical abnormalities which prevented her from engaging in sexual intercourse. [2]
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[1] S. v. S., 192 Mass. 194 (1906).
[2] M. v. M., 342 Mass. 773 (1961).