Did Gob make a huge mistake by sleeping with his wife?

After a series of escalating dares G.O.B ends up married to an unnamed woman (played by Will Arnett's then-spouse Amy Poehler). The couple never actually gets around to sleeping together, although they do live together for a time. After a stint sexually torturing prisoners in Iraq she sues for divorce. Michael says that the marriage can be annulled because it has never been consummated, a legal theory later supported by Barry Zuckercorn. Right before going before the judge the couple sleep together making annulment impossible.

So, did Gob make a huge mistake?

The idea that a marriage isn't valid until it is consummated, or that unconsummated marriage can be annulled, is something that comes up often in fiction. Historically an unconsummated marriage could be annulled. But historically a marriage could be annulled if it was consummated by the woman didn't bare a child within a certain amount of time. There's a lot of weird historical facts about marriage that are no longer true.

The English Matrimonial Act of 1937 created a statutory cause for annulment when the marriage has not been consummated owing to the willful refusal of the respondent. In England a lack of nookie may lead to an annulment but, as the ALR2nd Edition explains "in the absence of some such statutory provision, a willful and continued refusal to have marital intercourse is not of itself a ground for annulment".

There are six possible grounds for annulment of marriage in California.

1. One of the parties is too young to legally marry.
2. One of the parties is legally married to someone else at the time of the marriage.
3. One of the parties was of "unsound mind" at the time of marriage, unless upon coming to reason the parties continue to freely live as husband and wife
4. Consent to marry is obtained by fraud, unless upon discovering the fraud the parties continue to live as man and wife.
5. Consent was obtained by force.
6. Physical incapacity to consummate the marriage if the incapacity is continuing and appears incurable.

Notice that other than #6, the consummation of the marriage doesn't come up specifically. The necessary statutory basis needed to annul is not there.That isn't to say that consummation is irrelevant. In the 1956 case of Rathburn v. Rathburn, a California court found that the intention to not consummate the marriage could be grounds for annulment by fraud. One of the conditions is showing that at the time of the marriage one of the parties intended not to consummate the marriage. There's no evidence that Mrs. Gob had this intention at the outset and so the fraud option doesn't apply.

So, how did this whole consummation and annulment story get started in the first place? In the early 20th Century many courts refused to grant any annulment once the marriage had been consummated. This wasn't because consummation created a valid marriage but because of the cultural importance of virginity. A woman who had consummated the marriage was now damaged goods and deserving of some settlement through divorce. If this was a 1940s screwball comedy, Gob might have foreclosed his ability to get an annulment by sleeping with his wife. These days that makes no difference.

Gob's made many big mistakes in his life. Sleeping with his wife isn't one of them.