concurring.
The nexus of this case revolves primarily about a single “lesbian activity” which occurred prior to the marriage.
Apparently Dr. Woy and Linda lived together for about five years before they decided to be legally joined as husband and wife. Then, they cohabitated for another four or five years. The marriage soured and dissolution proceedings were commenced. During a deposition Dr. Woy learned that his wife had engaged in a lesbian affair about a year before they were married. Linda had another lesbian encounter about a year and one-half later with the same party and a man: a “menage a trois.” That she often used illegal drugs is clear from a thorough reading of the transcript and cannot be disputed.
This writer supports the general proposition that Amici Curiae briefs may be of value. The research furnished by such briefs may offer additional points that the court might otherwise overlook. It is never well to stifle legitimate debate in a free society, even though we may totally disagree with the aim and principles of the organizations tendering such briefs. For this reason I concur with the majority in overruling respondent’s motion to strike the briefs.
Both the majority and dissent cite Kshaiboon v. Kshaiboon, 652 S.W.2d 219 (Mo.App.1983), as a reason for their opinion. Edward Kshaiboon lacked the physical or mental capability to engage in a normal sexual relationship with plaintiff and his only sexual activity with her following the marriage was unnatural. Based on this it could be argued that the marriage was therefore not consummated. The evidence in Kshaiboon supported an inference that Edward Kshaiboon knew of this condition and concealed it from plaintiff. The court further stated, “The sexual relationship is an essential element of the marital relationship and defendant’s concealment of his limitations and performances in that regard justified an annulment.” Id., at 220. In Watson v. Watson, 143 S.W.2d 349, 350 (Mo.App.1940), the court reaffirms horn-book law that “fraudulent misrepresentation or concealment by defendant of the fact that she was suffering from syphilis is shown by clear, satisfactory, and convincing evidence. Such a fraud pertains to an essential of the marriage relation and obviously entitles plaintiff to an annulment of the marriage.” From the facts herein the instant case is not comparable with either Watson or Kshaiboon.
The writer shares many of the concerns expressed in the dissent. The issue in this case is, did the failure of Linda to disclose one act of lesbianism prior to marriage amount to and constitute a fraud of concealment such as to warrant annulment.
Linda admits to one lesbian experience with Shirley Charlton and denies she told Shirley Charlton of another lesbian affair. Linda testified after the marriage she had a lesbian affair with Shirley and Dr. Woy was present. According to Linda, Dr. Woy had always wanted to engage in a “Threesome.” Subsequently, Linda and Dr. Woy continued to engage in “normal” sexual relations.
Linda was asked:
Q. Why did you not tell George about your lesbian affair before you married him?
A. There didn’t seem to be any point. He didn’t bare his soul to me. He didn’t ever ask either.
Linda testified that after the threesome she told Dr. Woy of the lesbian incident before the marriage. Dr. Woy denies any knowledge of Linda’s lesbian activities until her deposition was taken. There is no allegation that Linda required lesbian gratification to engage in normal sexual activities in the marriage bed.
A similar scenerio to the instant case appears in Freitag v. Freitag, 40 Misc.2d 163, 242 N.Y.S.2d 643 (1963), wherein the court denied plaintiff’s request for annulment. In Freitag, the wife sought annuli ment of her marriage from her husband ori the grounds that before the marriage he fraudulently withheld from her his homosexual proclivities. The parties were intimate before the marriage, had a “not unhappy” honeymoon and for three weeks *776following their honeymoon cohabitated uneventfully. Then the husband became impotent and unable to fulfill his marital contract. Several weeks later he confessed to her his prior homosexual acts and she was “aghast.” Id. The court in Freitag noted, “After reading the record of the trial and the briefs submitted by counsel for plaintiff, the court is unable to conclude that we have here a true case of homosexuality or that the condition of the defendant is incurable. Both before and after marriage the couple admittedly did have a mutual heterosexual orientation, apparently satisfactory to the plaintiff.” (Emphasis added.) Id., at 644, 242 N.Y.S.2d 643.
This writer notes:
The degree of fraud sufficient to vitiate an ordinary contract will not afford sufficient ground for the annulment of a marriage. It is not sufficient that the party relied upon the false representations and was deceived, or that important and essential facts were concealed with intent to deceive. The marriage relation is a status controlled and regulated by considerations of public policy which are paramount to the rights of the parties. * * It is contrary to public policy to annul a marriage for concealment by a woman of her unchastity prior to marriage. Ante-nuptial incontinence is not a ground for annulment or for divorce. Not even does the concealment of previous unchaste and immoral behavior vitiate a marriage; for, although this seems to strike into the essence of the contract yet public policy pronounces otherwise, and opens marriage as the gateway to repen-tence and virtue. (Citations omitted.)
(Emphasis added.) Browning v. Browning, 89 Kan. 98, 130 P. 862, 854 (1913).
As stated above, the fraud must go to the very essence of the marital contract to vitiate the marriage. The fraud must be something essential to the marriage relation, making its performance impossible or its continuance dangerous to health or life. Bielby v. Bielby, 333 Ill. 478, 165 N.E. 231, 233 (1929). The court in Heath v. Heath, 85 N.H. 419, 159 A. 418, 425 (1932), stated: “Whatever the differences in definition of the kind and nature of fraud required to warrant an annulment, deception by one of the parties as to character, morality, habits, wealth, or social position is generally held insufficient.”
This writer finds that in this case the lesbian activities of Linda did not rise to the level of interferring with the essentials of the marriage relation, of making it impossible to perform the duties and obligations of that relationship.
A corollary to the instant question of whether Linda’s escapade is enough to strike the marriage invalid might be whether Dr. Woy is a wife beater and, as such, perpetrated a fraud on Linda warranting the marriage to be declared void. On one occasion he struck Linda and told his marriage counselor of the event and during the course of the trial stated, “That’s the only time I can remember beating Linda.”
For the reasons stated herein I concur in the opinion of PRITCHARD, J.