Impotency at the time of the marriage is a ground for divorce in Georgia, but it means something narrower than most people expect.
What the Statute Says
OCGA 19-5-3(3) makes “[i]mpotency at the time of the marriage” a ground for total divorce. That is the whole of the statutory language – Georgia has never defined the word by statute, as the Georgia Supreme Court pointed out in S. v. S., 211 Ga. 365 (1955). Because the problem existed when the marriage was formed, this ground may also be the basis for an annulment.
How the Courts Define It
The definition comes from Long v. Long, 191 Ga. 606 (1941): “Impotency denotes a state of permanent inability on the part of one of the parties to perform the complete act of sexual intercourse.”
Long also shows how much work the word “permanent” does. The husband there testified his wife “was incapable of consummating the marriage relationship by intercourse,” and the Court still rejected the claim because he never showed the cause of the incapacity or “whether it was curable, incurable, accidental, or temporary.”
An Unsatisfying Marriage Is Not Impotency
S. v. S. involved a wife who had been paralyzed since she was fourteen and could not experience sexual sensation. Her doctors testified that her organs were normal and that she was capable of intercourse and of becoming pregnant. The Court held the evidence did not require a finding of impotency, and noted that its own view was that judges “should not rush in where those competent to judge fear to tread.”
Two practical points follow from that case. Proof of impotency generally rests on medical expert testimony. And a marriage that is unsatisfying, or even unconsummated, is not the same thing as one where a spouse is physically unable.
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This post is a quick overview of the law and is not intended as legal advice. Please feel free to contact our office for a consultation if you have questions about this or any other legal aspects regarding your case!