In a suit for nullity of marriage on the ground of impotency, there may be facts and circumstances proved, which so plainly imply on the part of the complaining spouse a recognition of the existence and validity of the marriage, as to render it most inequitable, and contrary to public policy, that he or she should be permitted to go on to challenge it with effect; but the doctrine, designated as the “doctrine of want of sincerity” in an action of this kind, has been too much extended in recent English decisions, and that doctrine, apart from “approbate” and “reprobate,” has never been recognised by the law of Scotland.

Delay in raising a suit of nullity on the ground of impotency is a material element in the investigation of a case which upon the facts is doubtful; but there is no definite or absolute bar arising from it.

The Canon Law rule of triennial cohabitation has not been recognised in England beyond this point, that where a husband or a wife seek a decree of nullity propter impotentiam, if there is no more evidence than that they have for a period of three years lived together in the same house and with ordinary opportunities of intercourse, and it is clearly proved there has 172been no consummation, then if that is the whole state of the evidence, inability on the part of the one or of the other will be presumed. On the other hand, the presumption to be drawn from the fact of non-consummation after three years' cohabitation is capable of being rebutted. And, also, every case need not be fortified with the presumption; for although no presumption can be raised from the absence of consummation within a less period than three years, yet positive evidence may be given, from which the same inference of inability may be drawn. See Lord Watson's opinion (p. 198), that to this extent the Court of Session would not hesitate to adopt the rule.

G. and M. were married in 1877. They slept in the same bed for about nineteen months, but during only two months and a half of that time did G., the husband, make any attempt to consummate the marriage. He desisted on account, he alleged, of his wife's increasing coldness and repugnance to him. It was admitted that the marriage had never been consummated. In 1879 the parties finally separated, the wife living on her own income with her relations, the husband not giving anything towards her support. In 1882 the wife gave birth to a child of which G. was not the father. G. instituted an action for divorce which M. defended, and she then raised this action of declarator of nullity of marriage on the ground of G.'s impotence. G. denied his impotence. He was personally examined, and the medical evidence was that no malformation was apparent from his appearance:—