A recent Court of Protection case has highlighted the difficulty in clearly defining a marriage when one partner loses capacity.

Whilst the case may have been overshadowed by the presiding Judge’s comments concerning the ‘fundamental human right’ for a husband to have sex with his wife, a recent Court of Protection case has considered the concept and rights of those within a marriage when one partner loses capacity.

In this particular case, a happily married couple of twenty years had their lives disrupted when the wife’s mental capacity started to deteriorate. The couple’s local authority has now lodged a case that could see the imposition of a court order preventing the husband from legally having sex with his wife.

Members of the council’s social services team have submitted evidence that suggests the woman no longer has the necessary capacity to consent to sexual acts. The council claim that by failing to intervene legally, the woman could be exposed to sexual situations which could be perceived as rape if consent is not clearly given.

Although the husband in the case promised to give an undertaking that would prevent him from having sexual intercourse with his wife, the judge claimed that the lack of capacity had changed the dynamic of a relationship that had functioned successfully in a specific way for over twenty years. This made it necessary to hear from all parties before making a definitive ruling.

Judge Hayden may have made the national headlines for comments that have been construed as archaic but his insistence on hearing the full facts highlights the complexities of the case. The arguments put forth by the council suggest that the husband involved is unable to control his urges and should be stopped to protect a defenceless wife who now lacks capacity. However, the husband has agreed to an undertaking, preventing him from acting upon these urges which suggest that he is able to control himself and is thinking about the best interests of his companion of twenty years.

The case should then look towards the wife involved. As opposed to preventing the husband from having sex with his wife, this case raises issues concerning the woman’s human right to have sex and her capacity to make that decision. If a ruling is made that would favour the council’s viewpoint, it could actually restrict the freedoms of two people in the marriage rather than saving one from exploitation.

During the preliminary Court of Protection hearing, Judge Hayden was insistent that he needed to review the evidence in detail as any legal ruling could place the man in prison if he breached an order not to have sex with his wife.

Judge Hayden, presiding judge, commented: “I cannot think of any more obviously fundamental human right than the right of a man to have sex with his wife – and the right of the state to monitor that, I think he is entitled to have it properly argued.”

The court will now hear extended arguments from legal representation of the woman, the man and the council intervening in the matter before a legal decision is reached.

In order to protect the identity of all concerned, the couple’s anonymity has been protected.

Whilst the case has made the national press because of Judge Hayden’s perceived misogynistic undertones, it raises a myriad of moral considerations as to how and when the relationship of a married couple should adapt when a partner loses capacity. Although the boundaries of sexual consent are extremely clear, the difficulties in defining a marriage in these circumstances are a lot more blurred.

Martin Parrin
Aprl 4th 2019