Short answer. Yes. Article 45(5) of the Family Code requires that the physical incapacity to consummate the marriage continues and appears to be incurable. A temporary condition that can be treated or resolved does not meet the legal standard for annulment on this ground.
What the law says
either party was physically incapable of consummating the marriage with the other, and such incapacity continues and appears to be incurable
Family Code, Article 45 — Grounds for Annulment. Read the full provision →
What the law says about physical incapacity as a ground
Article 45 of the Family Code lists the recognized grounds for annulment. Ground number five covers the situation where either party was physically incapable of consummating the marriage — and the statute adds two conditions: such incapacity continues and appears to be incurable. Both requirements must be met at the time the petition is filed. The incapacity must have existed at the time of the marriage, it must still be present, and it must appear to be beyond correction. An incapacity that was present at marriage but was later cured would not meet the continuing requirement.
What 'incurable' means in practice
The word "appears to be incurable" does not demand absolute medical certainty that no treatment on earth could ever help. It means that, based on the evidence available — typically medical evaluations — the condition appears to be permanent and beyond reasonable remedy. This is a factual question that courts evaluate case by case, usually with medical evidence. A condition that is treatable with available procedures but where the affected spouse refuses treatment is a more complicated question and may require legal guidance on whether refusal changes the analysis.
The incapacity must have existed at the time of the marriage
Article 45 applies only to causes existing at the time of the marriage. This is crucial. If a spouse became physically incapable of consummating the marriage years after the wedding due to illness, accident, or age, that would not support an annulment petition on this ground — no matter how permanent the condition. The law is asking whether, at the moment you married, one party already had a physical incapacity. Evidence about the condition at that time — medical history, testimony, prior diagnoses — becomes the centerpiece of proof.
How this differs from psychological incapacity
Physical incapacity to consummate and psychological incapacity are separate grounds under the Family Code. Physical incapacity under Article 45(5) is specifically about the ability to consummate — the actual physical act. Psychological incapacity, addressed elsewhere in the Code, concerns the inability to comply with the essential obligations of marriage, and follows its own set of requirements. If you are unsure which ground might apply to your situation, a lawyer can assess the facts and identify which, if any, of the Article 45 grounds fits.