The Philosophy of Law: Private Right, § 27: Fulfilment of the Contract of Marriage
The Contract of Marriage is completed only by conjugal cohabitation. A Contract of two Persons of different sex, with the secret understanding either to abstain from conjugal cohabitation or with the conscious ness on either side of incapacity for it, is a simulated Contract; it does not constitute a marriage, and it may be dissolved by either of the parties at will. But if the incapacity only arises after marriage, the Right of the Contract is not annulled or diminished by a contingency that cannot be legally blamed.
The Acquisition of a Spouse either as a Husband or as a Wife, is therefore not constituted facto—that is, by Cohabitation—without a preceding Contract; nor even pacto—by a mere Contract of Marriage, without subsequent Cohabitation; but only lege, that is, as a juridical consequence of the obligation that is formed by two Persons entering into a sexual Union solely on the basis of a reciprocal Possession of each other, which Possession at the same time is only effected in reality by the reciprocal ‘usus facultatum sexualium alterius.’