Darrell v. Darrell

215 N.W.2d 789, 298 Minn. 470, 1974 Minn. LEXIS 1500

• Court: Supreme Court of Minnesota
• Decided: March 8, 1974
• Docket: No. 44182
• Status: Published

Opinion

Per Curiam.

This appeal arises out of an uncontested action brought by a wife to annul her marriage for fraud on the part of her husband in failing to disclose his impotence. The trial court dismissed the complaint on the ground there had been “cohabitation” within the meaning of Minn. St. 518.02. We reverse.

There is no dispute in the facts. Plaintiff and defendant were 40 and 45 years old respectively at the time of the hearing. Prior to their marriage on June 27, 1970, the parties discussed with one another their desire and intention to have children. Medical testimony established that the husband had been impotent for a considerable time before and during the marriage. After discovering her husband’s condition, the wife continued to live with him for 2 years, during which time both parties sought medical and psychiatric care to correct the husband’s condition.

Minn. St. 518.02 provides as follows:

“When either party to a marriage is incapable of assenting thereto for want of age or understanding, or when the consent of either has been obtained by force or fraud, and there is no subsequent voluntary cohabitation of the parties, the marriage may be annulled at the suit of the injured party, and shall be void from the time its nullity is adjudged.”

We hold that merely residing in the same household does not constitute “voluntary cohabitation” within the meaning of the statute. Cohabit means to live together “as husband and wife.” Webster’s Third New International Dictionary (1961) p. 440. The parties do not live as husband and wife if the husband cannot consummate the marriage.

Reversed and remanded with instructions to enter judgment for the plaintiff annulling the marriage as of June 27, 1970.