Evidence of marital intercourse - MCA 1973 s. 48
MCA 1973 s. 48: spouses can testify about marital intercourse. In nullity cases, sexual capacity evidence is heard in camera unless court orders otherwise.
The evidence of a husband or wife shall be admissible in any proceedings to prove that marital intercourse did or did not take place between them during any period. In any proceedings for nullity of marriage, evidence on the question of sexual capacity shall be heard in camera unless in any case the court is satisfied that in the interests of justice any such evidence ought to be heard in open court.
Text in force at .
Source: legislation.gov.uk — The National Archives (legislation.gov.uk), reproduced under licence Open Government Licence v3.0.
What it actually says
This section makes it clear that a husband or wife can give evidence in court about whether marital intercourse did or did not happen between them during any period. Normally, a spouse might be barred from testifying about such intimate matters due to privilege, but this provision overrides that.
In nullity of marriage proceedings (where a marriage is challenged as invalid), any evidence about a person's sexual capacity must be heard in private (in camera) unless the court decides that it is in the interests of justice to hear it in open court. This protects the privacy of the parties involved.
When it applies
- A wife testifies in divorce proceedings that she and her husband did not have intercourse after a certain date to support a claim of separation.
- In nullity proceedings, a husband gives evidence about his sexual capacity to argue that the marriage was voidable for non-consummation.
- A court decides to hear evidence on sexual capacity in open court because the case has attracted public interest and the judge believes justice requires transparency.
- A spouse is called as a witness in a child custody case to prove that marital intercourse occurred during a specific period, affecting the presumption of paternity.
What this section does not say
- This provision does not compel a spouse to give evidence; it only states that such evidence is admissible if given voluntarily.
- It does not apply to evidence of adultery or sexual relations with a third party; it is limited to marital intercourse between the spouses.
- It does not set any rules about the weight or credibility of the evidence; that is for the court to decide.
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This page reproduces the text of MCA 1973 s. 48 in force at the date shown and explains it in general terms. It is not legal advice and takes no account of the circumstances of your case, which can change the answer completely. For a live dispute, for limitation periods, and before taking any step in court, consult a qualified lawyer in England and Wales.