Does sex have to be consensual in a marriage?

There is a common perception that when married, it is a person’s ‘obligation’ to satisfy their partner sexually on the terms of their partner. It is a difficult subject for many to discuss or seek legal advice, so I have created this article to address some of the myths and where the law stands on non-consensual sex in a marriage and whether it constitutes marital rape.

A survey by ‘The End Violence Against Women Coalition,’ reported that a “third of people in the UK think it is not usual if a woman is pressured into having sex but there is no physical violence.” A common misunderstanding is the legal interpretation of domestic abuse which does not have to be physical.

What are the historical views of non-consensual sex in a marriage?

In 1736, Sir Matthew Hale, a former Chief Justice of the Court of King’s Bench in England, argued that “the husband of a woman cannot himself be guilty of an actual rape upon his wife, on account of the matrimonial consent which she has given, and which she cannot retract.” 

It was not until 1991 that the legal principal changed in the landmark case R v R [1991] UKHL 12, where the husband was convicted of attempting to rape his wife. The Home Office also issued guidance to the police to help them improve the police treatment of women who have been the victim of rape (including marital rape).

The Law – Sexual Offences Act 2003

Section 1 of the Sexual Offences Act 2003, states that a person (A) commits rape if:-

  1. “He intentionally penetrates the vagina, anus or mouth of another (B) with his penis; 
  2. B does not consent to the penetration, and 
  3. A does not reasonably believe that B consents.”

It should be noted that a female cannot be charged with committing rape because the offence requires penile penetration. A woman commits a sexual act without the consent of her spouse or ex-spouse, she is committing a sexual offence and can be charged with:

  1. Sexual coercion.
  2. Causing a person to engage in sexual activity without consent;
  3. Sexual assault

Criminal Courts -vs – Family Courts

The Criminal Courts deal with persons accused of committing a crime and deciding whether they are guilty and if so, deciding the consequences. The police will initially investigate any accusations and present the evidence to the Crown Prosecution Service (CPS). The CPS will consider whether there is sufficient evidence to support a conviction if a crime with the evidence available.

The Family Courts in England & Wales deal with legal disputes in respect of children and the breakdown of relationships. An individual can make an application to the Family Court directly or via a family law solicitor for disputes relating to where children will reside/level of time to be spent with the non-resident parent (sometimes referred to as ‘custody battle’), domestic abuse, divorce, and division of financial assets etc.

The main two factors that differ between the Criminal Courts and the Family Courts:

  1. Balance of probabilities
  • Any fact must be proved on the balance of probabilities. The Family Courts will consider that if something is proven more likely than not, whereas in Criminal Courts, the jury will need to consider that the evidence is proven ‘beyond reasonable doubt’ to convict an individual of a crime.
  1. How hearings are heard
  • Hearings in the Family Court are heard in private and the Court’s permission must be sought if a third party seeks to attend any hearings. When judgments relating to children are published they will anatomised so the children cannot be identified.
  • In contrast any hearing heard by the Criminal Courts will be open to the public to attend the gallery and is determined by a jury of a person’s peers (member of the public).

Government Support

The Government has recently launched a campaign where victims of domestic abuse can ask for help at 2,600 chemists, by using the codeword “ANI” (Action Needed Immediately); pronounced as “ANNIE”. The protocol is that the person behind the counter will take you into a consultation room so that you can speak freely without your abuser being present or alerted.

What we can do to help you

We have found that commonly many people feel afraid to seek help when being subjected to sexual abuse or in some cases not realising that the abuse they are suffering falls into the category of sexual abuse. There has been a steer in legal professionals understanding of sexual abuse with more men finding the confidence and resources to seek help, although there is still a long way to go in raising awareness.

Traditionally, some cultures that have deep rooted values in marriage have struggled to adapt to accessing help from those outside of their community. We understand how difficult it can be to seek help and offer confidential, compassionate advice to consider your legal rights within the family courts.


rhw Solicitors in Guildford (logo) For further information, please contact the Family Department at rhw family law solicitors in Guildford, Surrey, on 01483 302 000 , email family@rhw.co.uk or fill in the contact form.

Article by Serena (Shanni) Sandhu, Family Law Associate Solicitor.