Nullity

Cases

B. (L.) v. MacC. (T.)

[2004] IEHC 409

JUDGMENT of Mr. Justice O’Higgins delivered on the 20th day of December, 2004.

In these proceedings, the petitioner seeks an annulment of her marriage.

The petitioner is an Irish citizen and lives in the south west of Ireland and the respondent is from Scotland and lives there.

On the 5th May 1993, the parties underwent a marriage ceremony according to the rites of the Church of Scotland in Glasgow. They had two children, A. MacC, born in May 1994 and S. MacC born in September 1997.

Paragraph 7 of the petition dated 12th May, 1999 states that “Your petitioner’s consent to the marriage was not fully informed and was obtained by misrepresentation of fundamental facts and fraud on the part of the respondent in respect of his personal circumstances, his family circumstances, his character and his intentions”.

At paragraph 8 the petitioner says “Furthermore, the respondent lacked capacity to marry in that he suffered psychological immaturity and under-development of character to such an extent that he was incapable of maintaining a normal marital relationship with your petitioner and was pathologically given to deception and concealment in relation to his circumstances, intentions and emotions in such a way as to wholly prevent and undermine the development of any proper matrimonial relationship.”

Following their separation in 1997 the respondent commenced judicial separation proceedings (1998 No. 1153M) and it was agreed that those proceedings should be adjourned pending the outcome of this case. On 4th May 2000, the parties entered into an agreement dealing with many of the issues in the judicial separation proceedings. Apart from nominating a solicitor for the purpose of the serving of documents, the respondent has chosen to take no part in these proceedings. I am satisfied that there is no question of collusion between the parties.

By order of the Master of the High Court dated 20th October, 1999 it was ordered that the action be set down for trial and the issues would appear to be as follows:

“(a) Whether the petitioner is entitled to a decree of nullity on the following grounds:
(1) That the petitioner’s consent to the marriage was not fully informed and was obtained by misrepresentation of fundamental facts and fraud on the part of the respondent in respect of his personal circumstances, his family circumstances, his character and his intentions.
(2) That the respondent lacked the capacity to marry in that he suffered from psychological immaturity and underdevelopment of character to such an extent that he was incapable of maintaining a normal marital relationship with your petitioner and was pathologically given to deception and concealment in relation to his circumstances, intentions and emotions in such a way as to wholly prevent and undermine the development of any proper matrimonial relationship.
(3) In relation to the misrepresentation and fraud of the respondent in relation to his personal circumstances, his family circumstances and professional circumstances.
(a) That the respondent represented himself to your petitioner as a man of substantial wealth and position in society and that he concealed from the petitioner that he was chronically indebted and incapable of managing his own financial affairs.
(b) That the respondent represented to the petitioner that he was the owner of a substantial home, which he proposed to be the family home, but which was, in fact, encumbered with debt to such an extent that he was obliged to sell it within a year of the marriage.
(c) That the respondent wholly misrepresented to the petitioner the extent of his status as a partner in a Glasgow Quantity Surveying partnership from which owing to his inability to commit himself to work and to further his own financial interest he was unable to derive an income in any way adequate to meet his own financial circumstances.
(d) That the respondent concealed from the petitioner the true circumstances relating to his occupation, the demands of his partners that he should improve his performance and invest in his partnership, and other circumstances which led to the collapse of his partnership in the year following the marriage.
(e) That the respondent represented to the petitioner that he was a son of a happy and functional family and that the petitioner would be a part of this extended family life but that after the marriage the petitioner never met any members of his family apart from his parents with whom he had an unusual and secretive relationship
(f) That the respondent represented himself as someone who was outgoing, honest and interested in establishing and sustaining a matrimonial relationship with the petitioner but that after the purported marriage the petitioner discovered that the respondent was dishonest both in his business and personal dealings, untrustworthy, given to practising deceptions on a routine basis and incapable of addressing social and economic realities on any realistic basis.
(g) That the respondent instead of acting as a normal bread winning member of a family, took every opportunity to avail of the petitioner’s resources and to become financially dependant upon the petitioner and avoided his financial and family responsibilities to a wholly unwarranted extent.
(h) That the respondent continually incurred indebtedness in a reckless and irresponsible way without any regard to his capacity to defray such debts.
(i) That following the birth of [A.MacC]. . . the respondent demonstrated little or no interest in sustaining a sexual relationship and drank excessively and remained secretive about his personal feelings, emotions and activities.
(j) That the respondent demonstrated complete emotional immaturity and incompatibility with the petitioner.”
The evidence of the petitioner
The petitioner is a successful and experienced solicitor practising in the south of Ireland. She became national president of a voluntary organisation for business and professional people. It was through that organisation that she met the respondent who was involved in the same organisation. The parties first met in 1988 and had occasional contact after that but a relationship between the parties did not develop until about June of 1992. The parties became engaged in December of that year and were married in Scotland in May 1993. At the time of the marriage, the respondent was a partner in a firm of chartered surveyors but he was in dispute with that firm and left the practice in 1994. He had bought a house in 1991/1992 but he had to sell it in November 1994, to cover his debts of which the petitioner was unaware, as the respondent had never told her of his financial difficulties or the facts of his professional dispute. After the marriage, the respondent was a considerable financial burden and a constant drain on the resources of the petitioner. Contrary to her expectations that his side of the family would pay for the wedding celebrations, which were held in Scotland, and that her family would be responsible for the celebrations held in Ireland, the petitioner had to pay for the wedding celebrations in Scotland. She had understood from the respondent that he was a member of a close-knit family. Subsequent to the marriage she became aware that this was not so and that the respondent did not seem to have close relationships with his extended family other than his parents. There had been Hogmanay celebrations before the marriage which involved his extended family. The parents of the respondent spent the first Christmas after the marriage in Ireland and the petitioner returned with the respondent to Glasgow after Christmas in the expectation of Hogmanay celebrations with the extended family as she had been led to believe that there were annual Hogmanay celebrations which involved the extended family. The respondent and his parents knew that no such celebrations were planned. In fact, after the marriage, there was no further contact with the respondent’s extended family aside from the S——s. The petitioner felt misled as to the nature and extent of the respondents contacts with his extended family.

During the course of the marriage, the petitioner subsidised the rental of office space for the respondent in Dublin while he sought work and he resided in an apartment in Dublin owned by her parents during that time. She also supported him financially while he was involved in unsuccessful business enterprises. Indeed she was the main breadwinner throughout the marriage. The respondent attempted to obtain a franchise on the sale of certain fast food products in Ireland but that required security of £150,000 which the petitioner was unable and/or unwilling to pay. Following her refusal on the 2nd June 1994, he left. The petitioner said that the funding in relation to the franchise was “what eventually brought an end to the marriage. He was looking for me to go guarantor for IR£150,000, which he needed by July 1997 and I refused”.

The parties separated on the 4th July 1997 and the respondent returned to Glasgow. The petitioner did not hear from him for fifteen days. A meeting then took place in the petitioner’s office. The respondent asked the petitioner could they get back together and she said that she did not think it was appropriate. Shortly after that on the 23rd July, the plaintiff got what she described as “a tender, loving letter, but I really felt that the marriage was at an end”. She was six and a half months pregnant at the time and she told the court that herself and the respondent “had become practically estranged.” The petitioner was “paying everything” and she said she could not keep on paying it, “I just said I didn’t want anymore involvement with him.”

The evidence discloses that this unauthorised sale took place at the time that he wrote the “tender” letter already referred to. This was an example of duplicity and affords some support for the opinion of Dr. Byrne. It was one of a number of deceitful acts in the course of the marriage. The evidence also shows that the respondent provided little emotional support to the petitioner in the course of the marriage.

It is difficult to avoid the conclusion that the constant financial demands of the respondent were a real factor in the failure of the marriage and although the respondent was unsuccessful in his business endeavours during the marriage I am satisfied that his financial dependency on the petitioner was not deliberate. The evidence does not disclose that the respondent was incapable of earning a living or keeping a job by virtue of his personality. Had circumstances been different he may well have been successful in business. The financial dependency issue in this case is not in my view of assistance, in assessing the respondent’s ability to contract to a valid marriage.

The Evidence of Dr. Byrne

Dr. Gerard Byrne, psychiatrist was appointed to carry out a psychiatric examination of the petitioner and of the respondent and to report to the court thereon.

He interviewed the petitioner for a total of four hours and interviewed the respondent for a total of four hours. He gave us his opinion that at the time of his marriage the respondent had a personality disorder to such an extent as to make it impossible for him to consent to and sustain a marriage with the respondent. He had a fundamental difficulty with trust and allowing himself to be trusted. He constructed a persona entirely at variance with reality.

Dr. Byrne quoted from the International Classification of Diseases, which sets out what specifically a personality disorder is, as follows:-

“it is a condition which comprises deeply ingrained and enduring behaviour patterns manifesting themselves as inflexible responses to a broad range of personal and social situations, they represent either extreme or significant deviations from the way that the average individual in a given culture perceives, thinks, feels thinks (sic) and particularly relates to others. Such behaviour patterns tend to be stable and to encompass multiply domains of behaviour and psychological functioning. They are frequently, but not always, associated with various degrees of subjective distresses and problems and social functioning and performance. They emerge early in the course of the person’s development, usually present by early adulthood and generally persist throughout life.”
He went on to say the particular personality disorder of the petitioner was “what is called a narcissistic personality disorder and that has a triad for diagnosis and the triad is self-importance or grandiosity, the need for admiration and the inability to empathise with others. They are usually people who have a very strong negative reaction to criticism; they show manipulative behaviour and an exaggerated sense of achievement and special abilities, a strong sense of entitlement and a requirement for constant attention while being indifferent to the feeling of others.” Dr. Byrne said that he formed his opinion based on a number of factors in the history given to him by the petitioner and the respondent and on the documents furnished by him and referred to in his report.

The matters he relied on included (but were not confined to) the following:-

(1) The letter in which the respondent said he had been head hunted by Thistle Developments.
(2) The letter found addressed to a celebrated Q.C. in England.
(3) His asking for delivery of paintings from persons to whom he was in debt.
(4) His descriptions of himself in his C.V.
I will deal with these matters referred to by Dr. Byrne seriatim.

(1) The letter seeking the franchise.

The respondent applied for a franchise for the sale of a fast food product from an American business. In a letter concerning his application, he said inter alia that “he was subsequently headhunted to assume the position of Director in Thistle Developments, Dublin.” This statement is inaccurate – the respondent was not headhunted by Thistle Developments, the company was in fact founded at his behest. However, in my view Dr. Byrne is not correct in attributing any significance to this document in assessing that the respondent was grandiose or self-important. It is nothing but a minor puff to cover up a gap in his curriculum vitae and to account for a period of unsuccessful business activity. I do not consider this to be of any importance and I do not think that any significance should be attached to it.

(2) The letter to the celebrated Q.C.

Dr. Byrne also places reliance on a draft letter from the respondent to a celebrated Q.C. as being evidence of pomposity and self-importance. In my view, any such reliance is totally misplaced. Dr. Byrne is not in a position to tell the court whether or not the respondent knew the person in question and consequently could not be justified in placing any reliance on the fact of correspondence itself. It appeared moreover from the letter itself that it is not the first letter in correspondence and appears to be in response to “papers you forwarded.” However, Dr. Byrne attaches significance not to the letter itself but to the following sentence, “Finally on a more personal note we are hoping to see you in [B] . . . on the 29th.” It would appear that the petitioner knew nothing of this invitation. In my view, it would be wrong to draw any inference however slight from that sentence. It may be a casual invitation, or a meaningless polite phrase. It might have been something already discussed between the parties. There are no grounds in my view for forming an opinion that that sentence is evidence of grandiosity or pomposity – without further information about the dealings between the respondent and the Q.C.

(3) Letter to Art Bank.

In correspondence with the firm of art dealers dated November 1997, the respondent wrote concerning the removal of three pictures from Dublin to Glasgow and referred to three unwrapped pictures from Dublin to Glasgow. Dr. Byrne found it “rather unusual that he would be writing to these people to whom he owed money and expecting them to move the pictures for him and also they would be wrapping them and they would send him a bill for this as well.” He found an element of grandiosity in an expectation that they would take care of the matter even though the applicant owed them money. I do not share the views of Dr. Byrne on this matter. I do not consider it any way unusual for a person to deal with a company to whom that person owes money. In particular, I find nothing strange about the request in the letter especially when the same letter contains a cheque towards his account which he trusts “will bring me close to balance.” (It appears from the previous correspondence which refers to balance payable of UK£252.88 on the 13th August, 1997 that the contention that the sum of UK£240.00 will bring me close to balance may well be correct). They may be an element of confusion in regard to this. The petitioner also had correspondence with 23 Club Management Services to whom be owed money and it may well be that matter referred to by the petitioner which Dr. Byrne may have wished to comment on. Even a request for favours from the respondent to that entity – even in circumstances where there was money owing – does not appear to me to be of any great significance.

(4) Dr. Byrne’s comments on the C.V.

Dr. Byrne comments on the C.V. furnished by the respondent and points out that he describes himself as ‘one of the most high profile chartered quantity surveyors in Scotland’ and ‘one of Glasgow’s best public speakers’. Again, in my view it is not reasonable to use that, even as part of a jigsaw of findings and observations, on which to base the opinion that he formed. The assertions in the C. V. might be considered brash or excessive but the prevalent standards in self-promotion in the business world by way of a C.V. could well be at variance with those in the professional world. I do not think that Dr. Byrne was justified in attaching any significance to that document in arriving at this diagnosis. With regard to his assertions about his prowess as a public speaker, it appears there was some basis for this view of himself.

I am conscious of the fact that Dr. Byrne told the court “one of the difficulties in making a diagnosis with a personality disorder is that if one picks any one particular feature then it does not necessarily have to be outside the norm, it is a feature that one might see in other people. In making the diagnosis of a personality disorder you look at the general pattern of behaviour across many domains of the person’s functioning. I would refer to a number of features of Mr. MacC, the most obvious one is his curriculum vitae and the manner in which it is written.” It is clear from the above that the proper approach is to look at the overall pattern rather than to place too much emphasis on any one specific factor. Nevertheless, it appears from the evidence that Dr. Byrne considered the matters referred to above as being factors, all of which were to be taken into account in coming to his diagnosis,and a very considerable amount of his evidence was devoted to commenting on these matters.

There were other matters involved in the diagnosis. Dr. Byrne had lengthy interviews with both the petitioner and the respondent. Dr. Byrne referred to a letter in which the respondent wrote to the person from whom he had hoped to achieve the fast food franchise. In the letter, he referred to the very serious illness of his wife and as the doctor put it went on to embellish matters by using the phrase “it’s funny how life turns.” In fact, his wife was not seriously ill following the birth of the child – in this regard the doctor said “he cannot simply state what the truth is and then deal with the consequences of it, he will make a statement which is untrue and then will go on to embellish it”.

Dr. Byrne also drew the attention of the court to the fact that the letter of the 23rd July, written by the respondent to the petitioner expressing love and admiration was on the same day that he sold items belonging to the petitioner. Dr. Byrne concluded:-

“My sense of him was that he was able to maintain those two contrasting styles of relating to her without any difficulty which comes back to the question of his ability to empathise, which I think he is, sadly, devoid of, certainly in his relationship with Mrs. [B] . . . and I would say that he would have a similar difficulty with other people.”
The respondent told Dr. Byrne that he dad just ended a seven-year long relationship with another person. This matter was not probed at all by the psychiatrist. Dr. Byrne gave as his reason – “because I do not think he was a very credible person to interview” Nonetheless the court considers that it is unfortunate that it has no information on this topic. Furthermore Dr. Byrne made no reference in evidence to the respondents relationship with his parents.

Dr. Byrne also commented on the fact that in the agreement reached between the parties – that the petitioner should have full responsibility for the rearing of the children and that he was not seeking access.

He also told the court of a time when the child was ill and the respondent appeared to be indifferent and mentioned that in the interview the respondent denied authorship of a document, which Dr. Byrne thought, was clearly in his handwriting.

Dr. Byrne conducted quite extensive interviews with the petitioner and respondent and had access to the documentation provided by the petitioner and referred to in his report. He had the benefit of information from the petitioner – but not from other informants – and referred in his evidence to the difficulties in not being able to use informants in these types of procedures.

The court is aware of the experience and expertise of Dr. Byrne but it would be wrong of the court to accept unquestioningly the evidence of an expert and to substitute expert opinion for the independent judgment of the court. Some of the matters which cumulatively, are part of the basis of his opinion, and which formed a major part of his evidence, have not been accepted by the court as valid material on which reliance should be placed.

I am aware that the matters in question are only part of the full picture, and that the opinion was not based solely on the matters referred to but also on the interviews with both the petitioner and the respondent. Ì am not satisfied, however, that the totality of the evidence discloses that the personality traits of the respondent were so outside the norm as to constitute a personality disorder such as would preclude him from contracting to a valid marriage. Nor am I convinced that his personality was such as to preclude him from sustaining a relationship with the petitioner. Furthermore, it has not been shown to the satisfaction of the court that the respondent “constructed a persona entirely at variance with reality.”

The petitioner had a very difficult marriage. The respondent was not truthful with her concerning his financial situation and his difficulties at work. He gave up his work in Glasgow shortly after the marriage and was involved in a dispute with the firm where he formerly worked. During the course of the impugned marriage, the respondent was almost entirely financially dependant on the petitioner. She paid for his office rental; she provided him with accommodation in Dublin; she gave him an allowance; she discharged his debts. The respondent was unsuccessful in his business enterprises as property consultant and also in an enterprise in the restoration of baths. He unsuccessfully sought a lecturing post and unsuccessfully applied for entrance to the King’s Inns. He accepted in correspondence a description of himself attributed to the father of the petitioner as “a kept man”. (In passing, I must observe that this acceptance of such description does not seem to disclose either a grandiosity or pomposity.)

The petitioner was also surprised that he failed to discharge an electricity bill on his house and was unaware of those debts the discharge of which consumed the proceeds of the sale of his house in Glasgow in November 1994. The respondent also appears to have misrepresented the position as to the closeness of his relationship with his extended family. The petitioner thought that he had a close friendship with his relatives and that he socialised frequently with them, whereas the petitioner found this not to be the case and that his only close relatives were his parents. None of these matters however are such as would constitute grounds for annulment of the marriage. The law in relation to nullity and in particular the topic of informed consent is discussed by McGuinness J. in the case of P.F. v. GO’M (otherwise G.F.) [2001] 3 IR 1 at p. 13 and in particular the following passage at p. 23 is apposite and applicable to the present case:-

“The formulation of the need for an informed consent by Blayney J. in M.O’M. (otherwise O’C) v. B.O’C. [1996] 1 IR 208 as contended for by the petitioner would appear to be so wide as to cover almost any situation where a petitioner has at the time of the marriage lacked relevant information on a matter of substance concerning the conduct, character or circumstances of the respondent, and that this will ground a decree of nullity. This, it appears, would apply regardless of whether or not the information had been deliberately concealed by the respondent. The test is subjective. Presumably all that would be required would be for the petitioner to give evidence that he or she would not have married the respondent had this information been available before the marriage. One has only to formulate the test in this way to realise that it could readily give rise to an undue widening of the grounds for nullity which would lead to precisely the type of difficulty so well set out by Jeune P. in Moss v. Moss (otherwise Archer) [1897] p. 263 at p. 278:-
‘. . . To assent to the proposition for which the petitioner contends would be to introduce into a law which now is, and beyond question should be, and believed to be certain, a new principle not resting on any sound basis, and, develop as it must in several directions, sure to give rise to many doubts and much confusion.’
This cannot have been the intention of Blayney J. in M.O’M. (otherwise O’C) v. B.O’C [1996] 1 IR 208. I must conclude that M.O’M. (otherwise O’C) v. B.O’C. should be distinguished from the present case on the facts and on the particular nature of the information involved which gave rise to considerations of inherent disposition and mental stability. I respectfully agree with O’Higgins J. that it cannot be extended to cover concealed misconduct and other forms of misrepresentation.”

The lack of full disclosure about his financial affairs, family and social circumstances are not in my view grounds on which one can base a claim for nullity. Neither the failure of the respondent to be the breadwinner for the family nor the failure of his business endeavours constitutes grounds on which to grant a declaration of nullity.

During the marriage, the respondent provided little emotional support and does not appear to have been good at parenting the child born prior to the break-up of the relationship. He was inconsiderate to the applicant and sometimes deceitful. One could be justified in concluding from the evidence that the respondent was very selfish, egotistical, deceitful and dishonest and that he behaved badly. However, as I have stated the evidence does not convince me that the personality traits which he displayed were of such a nature or quality as to bring him outside the norm. I am not persuaded that he was suffering from such personality disorder that would have prevented him from contracting to a valid marriage. In those circumstances, the petition must be refused.

L.B. -v- T.McC.

[2009] IESC 21 (06 March 2009)

JUDGMENT of Mr. Justice Kearns delivered on the 6th day of March, 2009

This is an appeal from the refusal of the High Court (O’Higgins J.) to grant an annulment of the petitioner’s marriage to the respondent. The parties were married on the 5th May, 1993 according to the rites of the Church of Scotland in Glasgow. They subsequently had two children, A.MacC, born in May, 1994 and S.MacC, born in September, 1997. The petitioner is an Irish citizen and the respondent is a citizen of the United Kingdom and is from Scotland. At the time of the marriage, the petitioner was domiciled in Ireland and the respondent was domiciled in Scotland. After the marriage, the petitioner lived and cohabited with the respondent at an address in Glasgow and also in a rural part of the south of Ireland.

The parties separated in 1997 whereupon the respondent commenced judicial separation proceedings. It was agreed that those proceedings should be adjourned pending the outcome of this case. On 4th May, 2000, the parties entered into an agreement dealing with many of the issues in the judicial separation proceedings, including arrangements for the custody of the children. The learned High Court judge was satisfied that there was no question of any collusion between the parties. Apart from nominating a solicitor for the purpose of the serving of documents, the respondent has chosen to take no part in these proceedings.

Paragraph 7 of the petition dated 12th May, 1999 stated that:-
“Your petitioner’s consent to the marriage was not fully informed and was obtained by misrepresentation of fundamental facts and fraud on the part of the respondent in respect of his personal circumstances, his family circumstances, his character and his intentions.”
Paragraph 8 of the petition further asserted that:-
“The respondent lacked capacity to marry in that he suffered from psychological immaturity and under-development of character to such an extent that he was incapable of maintaining a normal marital relationship with your petitioner and was pathologically given to deception and concealment in relation to his circumstances, intentions and emotions in such a way as to wholly prevent and undermine the development of any proper matrimonial relationship.”
The misrepresentation and fraud alleged against the respondent in relation to his personal circumstances, his family circumstances, and his professional circumstances, include assertions that:-

(a) The respondent represented himself to the petitioner as a man of substantial wealth and position in society. He concealed from the petitioner that he was chronically indebted and

incapable of managing his own financial affairs.

(b) The respondent represented to the petitioner that he was the owner of a substantial home which he proposed to be the family home but which was, in fact, encumbered with debt to

such an extent that he was obliged to sell it within a year of the marriage.

(c) The respondent wholly misrepresented to the petitioner the extent of his status as a partner in a Scottish business partnership from which, owing to his inability to commit himself to

work and to further his own financial interests, he was unable to derive an income in any way adequate to meet his own financial commitments.

(d) The respondent concealed from the petitioner the fact that demands were made by his business partners that he should improve his performance and invest in his partnership and

concealed also other circumstances which led to the collapse of his partnership in the year following the marriage.

(e) The respondent represented to the petitioner that he was the son of a happy and functional family and that the petitioner would be part of this extended family life. However, after the

marriage, the petitioner never met any members of the family apart from his parents with whom the respondent had an unusual and secretive relationship.

(f) The respondent represented himself as someone who was outgoing, honest and interested in establishing and sustaining a matrimonial relationship with the petitioner. However, after

the purported marriage, the petitioner discovered that the respondent was dishonest both in his business and personal dealings, untrustworthy, given to practising deceptions on a

routine basis, and incapable of addressing social and economic realities on any realistic basis.

(g) The respondent, instead of acting as a normal breadwinning member of the family, took every opportunity to avail of the petitioner’s resources and to become financially dependent

upon the petitioner and avoided his financial and family responsibilities to a wholly unwarranted extent.

(h) The respondent continually incurred indebtedness in a reckless and irresponsible way without any regard to his capacity to defray such debts.

(i) Following the birth of A.MacC, the respondent demonstrated little or no interest in sustaining a sexual relationship and drank excessively and remained secretive about his personal

feelings, emotions and activities.

(j) The respondent demonstrated complete emotional immaturity and incompatibility with the petitioner.

EVIDENCE BEFORE THE HIGH COURT

While the inferences drawn from the facts as found by the learned High Court judge are under attack in this appeal, there is no suggestion that the primary facts as found by the learned High Court judge were in any way incorrect. The following summary of the evidence in the High Court therefore borrows heavily from the judgment of O’Higgins J. delivered on 20th December, 2004.

The petitioner is a professional person with a practice in the south of Ireland. She became National President of a voluntary organisation for business and professional people and through that organisation met the respondent in 1988. A relationship between the parties did not develop until June, 1992 and the parties became engaged in December, 1992 and were subsequently married in Scotland in May, 1993. At the time of the marriage the respondent was a partner in a Scottish business but he was in dispute with that firm and left the practise in 1994. He had bought a house in Scotland in 1991 or 1992 but he had to sell it in November, 1994 to cover debts incurred by him and of which the petitioner was unaware. The petitioner gave evidence that the respondent had never told her of his financial difficulties or the facts of his professional dispute.

Subsequent to the marriage, the respondent was far from successful in his financial and business dealings. On the contrary, he was a considerable financial burden to the petitioner and a constant drain on her financial resources. The difficulties became apparent at an early stage of the marriage. Contrary to the expectations of the petitioner that the respondent’s family would pay for the wedding celebrations, the petitioner had to pay herself both for the wedding celebrations in Scotland and for the celebrations subsequently held in Ireland. The petitioner had understood from the respondent that he was a member of a close – knit family, but subsequent to the marriage she discovered that the respondent did not appear to have any close relationships with his extended family other than with his parents.

The parents of the respondent spent the first Christmas after the marriage in Ireland and the petitioner returned with the respondent to Glasgow after Christmas in the expectation of Hogmanay celebrations with the respondent’s extended family. However, these celebrations never occurred and, with the exception of one couple, the parties had no further contact with the respondent’s extended family.

Making the best she could of things, the petitioner subsidised the rental of office space for the respondent in Dublin while he sought work and resided in an apartment owned by her parents. She supported him generously and financially through a number of unsuccessful business enterprises. Throughout the marriage she was the main breadwinner. It became increasingly apparent to the petitioner that the respondent was unlikely to succeed in various projects into which he launched himself. For example, he attempted to obtain a franchise for the sale of certain fast food products in Ireland but that required security of £150,000 which the petitioner decided she would neither pay nor guarantee.

Following the separation, which took place on 4th July, 1997, the respondent returned to Glasgow and the petitioner eventually met him several weeks later in her office. The respondent asked if they could get back together again but the petitioner refused. Shortly afterwards, on 23rd July, 1997 the plaintiff received a lengthy handwritten love letter from the respondent but, although she was six months pregnant at the time with the respondent’s second child, she felt such a sense of estrangement from him that she indicated she wanted no further involvement with him.

What might be described as the final nail in the coffin was the discovery by the petitioner that, at the very time the respondent wrote the love letter, he sold five valuable books which were the property of the petitioner. He also tried to sell other books and paintings which were also her property without informing her of what he was doing. These transactions were the subject of a successful court action in Scotland taken by the petitioner against the respondent for the return of the valuables.

The learned trial judge found, and had ample reasons for so finding, that this was one of a number of deceitful acts in the course of the marriage. O’Higgins J. was also satisfied that the evidence demonstrated that the respondent provided little in the way of emotional support to the petitioner in the course of the marriage.

The evidence of Doctor Byrne

Doctor Gerard Byrne, psychiatrist, was appointed to carry out a psychiatric examination of the petitioner and of the respondent and to report to the court thereon.

He interviewed each of the parties for a total of four hours. His opinion was that at the time of his marriage the respondent had a personality disorder to such an extent as to make it impossible for him to consent to and sustain marriage to the petitioner. He had a fundamental difficulty with trust and allowing himself to be trusted and constructed a persona entirely at variance with reality.

Doctor Byrne quoted from the International Classification of Diseases, which sets out what specifically a personality disorder is, in the following terms:-
“It is a condition which comprises deeply ingrained and enduring behaviour patterns manifesting themselves as inflexible responses to a broad range of personal and social situations. They represent either extreme or significant deviations from the way that the average individual in a given culture perceives, thinks, feels and particularly relates to others. Such behaviour patterns tend to be stable and to encompass multiple domains of behaviour and psychological functioning. They are frequently, but not always, associated with various degrees of subjective distresses and problems and social functioning and performance. They emerge early in the course of the person’s development, usually present by early adulthood and generally persist throughout life.”
Doctor Byrne was of the view that the respondent’s financial difficulties, both at the time of the marriage and subsequently, were of his own making. He believed there was a strong element of fantasy about the respondent’s personality amounting to grandiosity. He told untruths, not merely to conceal his financial difficulties, but to achieve maximum attention. It was Doctor Byrne’s view that the particular personality disorder exhibited by the respondent was one of narcissistic personality disorder with a triad of self-importance, a need for admiration and the inability to empathise with others. Such persons, he believed, had very strong negative reaction to criticism, show manipulative behaviour and an exaggerated sense of their abilities. They possess a strong sense of entitlement and a requirement for constant attention while being indifferent to the feelings of others.

Doctor Byrne went on to cite a number of matters which he relied upon when arriving at his opinion, including:-

(a) A letter in which the respondent said he had been head-hunted by Thistle Developments.

(b) A letter written by the respondent to a celebrated Q.C. in England.

(c) The manner in which the respondent dealt with an art bank in Glasgow.

(d) The respondent’s description of himself in his C.V.

It is not necessary to set out in detail the factual details of these matters beyond the following brief summary. In relation to the first matter, the respondent had applied for a franchise for the sale of a fast food product from an American business and in the course of a letter setting out his application he maintained he had been head-hunted to assume the position of a Director in a development company in Dublin. This in fact was totally inaccurate, as the company had been founded by the respondent himself. Secondly, the respondent had written a letter to a distinguished Q.C. in England in which he made a reference to papers which the Q.C. in question had supposedly forwarded to the respondent. He also referred in the letter to an invitation supposedly extended by the petitioner and the respondent to the Q.C. to visit the parties in the south of Ireland on a particular date. The petitioner knew nothing whatsoever of this invitation or of any relationship or friendship between the respondent and the Q.C. in question. Doctor Byrne took the view that this letter was indicative of the sense of grandiosity and pomposity which he attributed to the respondent. In correspondence with a firm of art dealers in November, 1997, the respondent had written concerning the removal by this firm of a number of paintings from Dublin to Glasgow. Doctor Byrne found it strange that the respondent would write to the firm in question in circumstances where he owed money to that firm but nonetheless expected the firm to move the pictures for him, to wrap them and take all necessary steps in relation to the shipment. In relation to the respondent’s C.V., Doctor Byrne noted that the respondent had described himself as “one of the most high profile practitioners in Scotland” and “one of Glasgow’s best public speakers”. Doctor Byrne took the view that these representations were again indicative of the personality disorder he had described.

There were other matters dealt with in evidence. For example, the respondent had written a letter to the person from whom he had hoped to achieve the fast food franchise in which he made reference to a supposed illness of his wife when in fact his wife was not ill at all.

Doctor Byrne did not, however, have access to persons other than the petitioner and the respondent for the purpose of his psychological assessments.

Findings of the learned High Court Judge

Having conducted a careful review of the evidence, O’Higgins J. stated as follows:-
“I am not satisfied, however, that the totality of the evidence discloses that the personality traits of the respondent were so outside the norm as to constitute a personality disorder such as would preclude him from contracting a valid marriage. Nor am I convinced that his personality was such as to preclude him from sustaining a relationship with the petitioner. Furthermore, it has not been shown to the satisfaction of court that the respondent “constructed a persona entirely at variance with reality” ”.
At an earlier portion of the judgment, O’Higgins J. stated (at p.7):-
“It is difficult to avoid the conclusion that the constant financial demands of the respondent were a real factor in the failure of the marriage and although the respondent was unsuccessful in his business endeavours during the marriage I am satisfied that his financial dependency on the petitioner was not deliberate. The evidence does not disclose that the respondent was incapable of earning a living or keeping a job by virtue of his personality. Had circumstances been different he may well have been successful in business. The financial dependency issue in this case is not in my view of assistance in assessing the respondent’s ability to contract to a valid marriage.”
O’Higgins J. concluded that the respondent’s lack of full disclosure about his financial affairs, family and social circumstances, were not grounds upon which one could base a claim for nullity.

It is clear that the trial judge had a very clear and full understanding of the factual situation in this case. He noted that during the marriage the respondent had provided little emotional support to the petitioner and did not appear to have been very good at parenting the child born prior to the break-up of the relationship. He was inconsiderate to the petitioner and sometimes deceitful. The learned trial judge was thus quite prepared to conclude from the evidence that the respondent was very selfish, egotistical, deceitful and dishonest and that he behaved badly. He concluded however as follows:-
“However, as I have stated, the evidence does not convince me that the personality traits which he displayed were of such a nature or quality as to bring him outside the norm. I am not persuaded that he was suffering from such personality disorder that would have prevented him from contracting to a valid marriage. In those circumstances, the petition must be refused.”

Relevant Legal Principles

The relevant legal principles pertaining to a grant of nullity have been comprehensively set out in the judgment of this Court in PF v. GO’M (otherwise GF) [2001] 3 IR 1. This was a case where the petitioner and the respondent were married and had one child. The petitioner commenced nullity proceedings on grounds that he had not given full free and informed consent to the marriage. It was alleged that the respondent was involved in a relationship with a third party when she became engaged to the petitioner. The petitioner claimed that had he known of this relationship, which was ongoing, he would not have consented to the marriage. The High Court (O’Higgins J.) while finding that the respondent had an affair with Mr. K both before and after the marriage, refused to grant the nullity sought. The petitioner appealed on the basis that the trial judge erred in law in holding that the circumstances of substance which rendered a party’s consent full and informed did not include circumstances concerning the disposition or proclivity of the other party. It was held by this Court, in dismissing the appeal, that if a party to a marriage was not fully informed about the conduct or the character of the other party prior to the marriage, this was not of itself sufficient to render the marriage void. Secondly, while adultery was a ground for judicial separation, it had never been a ground for nullity. Thirdly, while consent could not be considered informed where information relating to a party’s inherent disposition and mental stability was withheld, this would not be the case where there was a concealed misconduct or other misrepresentation. Fourthly, there was a necessity for certainty in marriage, which was enshrined in the Constitution. Therefore the introduction of a ground of nullity which would bring uncertainty into a wide variety of marriages was not only undesirable as a matter of public policy, but was contrary to the clear intention of Article 41.1.3 of the Constitution.

In delivering judgment on behalf of the Court, McGuinness J conducted a comprehensive review of the relevant legal principles pertaining to nullity. Having traced the origins of the modern law of nullity, she cited a much quoted passage from the judgment of Kenny J. in S. v. S. [1976-77] I.L.R.M. 156 at pp. 162 to 163 which emphasised that traditionally two principles were fundamental in suits for nullity:-
“The first was that the petitioner had to establish his or her case with a high degree of probability or, as Lord Birkenhead expressed it in C. (otherwise H.) v. C. [1921] P. 399 at p. 400: ‘must remove all reasonable doubt’. The second was that the ground of nullity had to exist at the date of the marriage: events or acts subsequent to the marriage were never a ground for a declaration of nullity (Napier v. Napier [1915] P. 184).”
McGuinness J. considered at length the whole question of misrepresentation or fraud arising from the misconduct of one party prior to the marriage. This issue was fully considered in the case of Moss v. Moss (otherwise Archer ) [1897] P.263. In that case the President, Sir F. H. Jeune had made it clear in the course of his judgment that fraud and misrepresentation had a very small role to play as a ground for a decree of nullity. He quoted Lord Stowell in the case of Wakefield v. McKay [1807] 1 Phillem. Ecc. 134 as stating at p.137:-
“Error about the family or fortune of the individual, though procured by disingenuous representations, does not at all affect the validity of the marriage”; and the same judge in Ewing v. Wheatley 2 Hagg. Cons. 175 “it is perfectly established that no disparity of fortune or mistake as to the qualities of the person will impeach the vinculum of marriage”; and in Sullivan v. Sullivan 2 Hagg Cons. 238 “the strongest cases you could establish of the most deliberate plot, leading to a marriage the most unseemly in all disproportions of rank, of fortune, of habits of life, and even of age itself, would not enable this Court to release him from chains, which, though forged by others, he had riveted on himself. If he is capable of consent, and has consented, the law does not ask how the consent has been induced.”
The principal authority relied upon by the petitioner in the present case, namely MO’M (otherwise OC) v. BO’C [1996] 1 IR 208, was also dealt with by McGuinness J. in the course of her judgment. That was a case where the High Court had heard evidence relating to the inherent nature, character and behaviour of the respondent during the marriage. It was a case where the respondent, unknown to the petitioner, had been attending a psychiatrist for approximately six years before the marriage. She claimed she did not have adequate knowledge of all the relevant circumstances and that had she been aware of those circumstances she would not have married him as she regarded the fact that the husband had attended a psychiatrist as being indicative of mental instability and probably some form of psychiatric illness. In other words, consent to the marriage was not, she alleged, a free, full and informed consent.

This was therefore a case where there was material before the court suggesting some condition, disposition or proclivity on the part of the respondent, rather than merely a matter of conduct. The petitioner was granted a decree of nullity. In dealing with this case McGuinness J. stated as follows at p.23 of her judgment:-
“The formulation of the need for an informed consent by Blayney J. in M.O’M. (otherwise O’C.) v. B.O’C. [1996] 1 IR 208 as contended for by the petitioner would appear to be so wide as to cover almost any situation where a petitioner has at the time of the marriage lacked relevant information on a matter of substance concerning the conduct, character or circumstances of the respondent, and that this will ground a decree of nullity. This, it appears, would apply regardless of whether or not the information had been deliberately concealed by the respondent. The test is subjective. Presumably all that would be required would be for the petitioner to give evidence that he or she would not have married the respondent had this information been available before the marriage. One has only to formulate the test in this way to realise that it could readily give rise to an undue widening of the grounds for nullity …”
McGuinness J. continued:-
“This cannot have been the intention of Blayney J. in M.O’M. (otherwise O’C.) v. B.O’C [1996] 1 IR 208. I must conclude that M.O’M. (otherwise O’C.) v. B.O’C. should be distinguished from the present case on the facts and on the particular nature of the information involved which gave rise to considerations of inherent disposition and mental stability. I respectfully agree with O’Higgins J. that it cannot be extended to cover concealed misconduct and other forms of misrepresentation.
The courts have always stressed the necessity for certainty in marriage, as did the learned judge in Moss v. Moss (otherwise Archer) [1897] P. 263. This is reinforced, as was submitted by counsel for the respondent, by Article 41.3.1 of the Constitution:-
“The State pledges itself to guard with special care the institution of marriage, on which the family is founded, and to protect it against attack.”
The introduction of a ground for nullity which, taken to its logical conclusion, could bring uncertainty into a wide variety of marriages is not only undesirable as a matter of public policy but is contrary to the clear intention of Article 41.3.1.”
I believe McGuinness J has correctly set out the relevant legal principles applicable in this jurisdiction . While it might be seen as desirable by some that legislation be now enacted to provide for the grant of nullity and its consequences (a point made by McGuinness J. in her judgment), this Court must determine the instant case by reference to those principles.

DECISION

The appeal in this case was unopposed, other than by the filing of an Answer to the Petition in October, 1999. However, that does not of course mean that the petitioner is entitled to a grant of nullity for the asking. The petitioner must show that the learned trial judge drew incorrect inferences from the evidence which was before him. I do not believe that he did.

He was entitled to disagree with the views expressed by the psychiatrist and did so in relation to the matters relied upon by Doctor Byrne. In my view the learned trial judge was perfectly entitled to assess as a “minor puff” the assertion by the respondent that he had been “head-hunted” by Thistle Developments and that he had exaggerated his experience and credentials in his C.V. This is a far from unusual or untoward experience in human affairs. It is almost a ‘given’ that a person will try to exaggerate his talents in such a situation. I am also firmly of the view that the trial judge was entitled to conclude that no significant implications should be drawn from the letter written to the distinguished Q.C. in England. That Q.C. had not given evidence nor were his comments on the correspondence (if any) available. In the same way the learned trial judge was entitled to take the view that it is in no way unusual for a person to deal with a company to whom one owes money, as occurred in the case of the art bank transaction. The amount owed at the time of the request was £252.88 but there was enclosed with the request a cheque for £240 leaving a balance due of £12.88. This is hardly a matter of any significance.

I have no difficulty in accepting the proposition that, from the petitioner’s point of view, the respondent transpired to be something other than the man she thought she was marrying, but indeed one may regretfully observe that the same could be said of many marriages. The petitioner’s complaints are almost entirely addressed to the conduct of the respondent, conduct which was undoubtedly feckless, irresponsible and immature. Nearly all of the behaviour relied upon occurred subsequent to the marriage and does not relate to the respondent’s capacity at the time of the marriage. Further, the evidence does not support a view of the respondent as a confidence trickster cut from the same cloth as the eponymous anti-hero of Thomas Mann’s novel ‘Confessions of Felix Krull, Confidence Man’ (Penguin, 1958). Even if it did, the evidence comes nowhere close to establishing that the respondent lacked capacity to contract to a valid marriage. I am particularly mindful in this context of the passages already cited from the judgment of McGuinness J. in PF v. GO’M (otherwise GF) [2001] 3 IR 1 where the learned judge draws a clear distinction between conduct on the one hand and incapacity and disability on the other.

The Constitution imposes a clear obligation on the courts to uphold the marriage contract and it would require far stronger evidence than has been adduced in this case to satisfy me that the respondent lacked the requisite capacity to enter a valid contract of marriage.

Finally, I feel compelled to comment, with a degree of regret, that although a Book of Authorities was lodged on behalf of the petitioner, that Book of Authorities did not include the decision of this Court delivered in PF v. GO’M (otherwise GF) [2001] 3 IR 1. This was a most surprising omission having regard to the fact that this decision was delivered as far back as 2001 and was indeed referred to in the judgment delivered by the learned High Court judge. No satisfactory explanation for its omission was forthcoming.

I would dismiss the appeal.

RT v VP (otherwise T)

[1990] IR 540

Lardner J.
27th July 1989

The petitioner claims a decree of nullity of his marriage with the respondent on the ground that at the time, by reason of her mental state and defects in her personality both before and at the time of the marriage, the respondent was suffering from such disease of the mind that she was incapable of maintaining and sustaining a normal marriage relationship. The respondent by her answer denies that she was incapable of maintaining or sustaining a normal marriage by reason of any such disease or defects of personality. During the hearing she has submitted by her counsel that she and the petitioner by reason of incompatible personalities at the time of their marriage were unable to form and sustain a normal marriage relationship and she supports the claim for a decree of nullity.
The parties were married on the 24th March, 1984. The petitioner was a widower aged 44 with three children – a son born on the 31st August, 1967, a daughter born on the 21st May, 1970, and a second son born on the 12th April, 1974. He was a member of the Church of Ireland and lived outside Dublin. His first marriage which took place in 1964 had been very happy. His wife had not worked but had been engaged in the home and with local church and charitable activities. The husband was an insurance underwriter and travelled to his office in Dublin every day. In 1982 his wife fell ill with cancer and died in January, 1983, aged 39 leaving him much saddened, lonely and afflicted by her loss. The respondent had come to live in the house adjoining the petitioner’s before the death of his wife. She lived with a man with whom she had a relationship for some years and by whom she had a child. I will refer to him as C. He was awaiting a divorce and had not been free to marry her. She worked with C. in his business and before that had worked as a translator in Ireland and on the continent. C. fell ill and died in 1981 and the respondent continued to live with her child in the house adjoining the petitioner and his wife.
The petitioner had known C. and the respondent as neighbours and had advised and helped them about insurance. In the summer of 1983 after the petitioner had been widowed a relationship developed between the petitioner and the respondent. It began when she offered to take his children to the sea at weekends and he began to accompany them. On Saturday and Sunday she brought in cooked meals to the petitioner’s house and they and their children ate together. The friendship had developed into a sexual relationship from August, 1983, intercourse taking place two or three times a week. This, I am satisfied, was satisfying and enjoyable and each was strongly attracted to the other. During the summer and autumn of 1983 the respondent was not working. The petitioner says that at Christmas, 1983, they talked about getting married and agreed to marry about March, 1984. Their sexual relationship continued up to the date of their marriage. Sometime after this the respondent wished to postpone the date of marriage. The petitioner disagreed and insisted on the marriage being in March. They had discussed their differences in religion – the respondent being a Roman Catholic – and this seemed no problem. They were married in the Roman Catholic Church. Before that the petitioner said they had discussed her role. She wanted to work after marriage. She had someone to look after her child and his children who were living at home were old enough to look after themselves. The evidence does not suggest that the petitioner objected to the respondent working although he was used to his first wife staying in the home. At the time of the marriage I am satisfied the parties knew each other well and had enjoyed a close relationship since the previous August. There had been some discussion – vague discussion – about having children. The wife wishing to work, did not want children. After the marriage there was a small reception for their respective families. The wedding night was spent in his house and the next day they went on their honeymoon which was spent in England staying with his brother-in-law for ten to fourteen days and the husband said it seemed to go very well and he had good hopes for the marriage. Both before their marriage and on the honeymoon their sexual relationship was happy and successful. On their return home in April, 1984, the respondent started to work as development manager for a company which was setting up a branch in Ireland. It was a well paid position and the work was demanding. She worked very long hours and over weekends – leaving home early in the morning and most nights not getting home until 7 or 8 p.m. Wednesday nights and weekends, when there were promotions, she was very late or stayed away for the night. The petitioner began to see her very little. When she returned home in the evening she was tired, had something to eat and went to bed early. At the end of April she went to London in connection with her work and was away for a week. On her return she told the petitioner she had had an abortion. He says he did not know she was pregnant. He presumed it was his child and was upset. She said it was her body and she would do what she liked. About this time they had a disagreement about the times and long hours she was absent at work. The petitioner felt she was over tired and that it affected her son who was four or five and was left without her. The respondent was very loath to discuss changing what she had started to do. She either said she was too tired to discuss it or if the petitioner said it was not what he expected of marriage, she said she would do what she wanted. At the end of May the respondent, he thought, showed signs of physical illness. She had severe back pains and gynaecological problems. She consulted a doctor and went into Mount Carmel Hospital from the 7th to the 17th of June. Nothing was found wrong with her back or gynaecologically. At the end of June she returned to work. Very soon she started behaving strangely. She would strip the bed and leave bed clothes on the ground – sit watching T.V. very close, one foot away – break down in hysterical crying. And she started to stay out even more at her work. The petitioner asked her general practitioner to see her and he advised her to see a consultant psychiatrist. On 13th July she saw a Dr. Peter Fahy. When she got worse he admitted her to St. Gabriel’s Hospital from the 25th July to the 7th August where she was under sedation. Dr. Fahy was away on holidays for part of this time during which the respondent was transferred to St. John of God’s Hospital, Stillorgan under Dr. Tubridy where she remained for six to eight weeks. She was shocked by this and by having her own clothes taken away and disliked being in a semi-private ward. She seemed to improve and in September returned home. She was on medication and was seeing Dr. Tubridy. She seemed exceptionally tired, got up very late and went to bed very early. The company at which she had been working had ceased operating. For about a month she worked for a firm in a secretarial capacity. In September, 1984, she and the petitioner spent a ten day holiday in the United Kingdom and this seemed to go well. From September, 1984, to April, 1985, she was on sedative medication. She was very tired and spent most of the time in bed. In April, 1985, they went to the Canary Islands for two weeks until the 5th May. The petitioner made several attempts to talk about what she wanted to do and said that if she wanted to work or engage in sport she should do so. However she would not discuss these things.
He thought it abnormal that she just wanted to stay in bed and do nothing. The holiday in the Canaries did not go well. The respondent did not want to get up in the morning to lunch. She wanted to spend the day at the pool. At night when the petitioner wanted to go out she said she would go to bed or, if she went out, by 9.30 p.m. she would want to go to bed. During the summer of 1985 she was having several long meetings with an uncle by marriage who was a lawyer. On occasion she did not return from these until the small hours of the morning. At the beginning of November the petitioner had a row with her when she returned home between 4.30 and 5 a.m. The following morning he says she did not want to discuss it and laughed at him. Then he asked her to leave and on the 17th November, 1985, she left with her child and they have not lived together since.
In January, 1986, the parties met and discussed a reconciliation and they discussed going to a mediator or to the Catholic Marriage Guidance Council. The petitioner was willing but apart from talking with a woman friend of the respondent nothing was done. There was a dispute about the respondent cashing an insurance policy on her own life taken out for the benefit of her son and on which since the marriage the petitioner had paid the premium, his interest being noted on the policy. He disapproved of it being cashed. Despite this a further attempt at reconciliation was made in the summer of 1986. They spent a weekend at Tramore together and got on well. But after that the petitioner said they had limited further contact. The respondent was working as a translator. At the end of 1986 she instituted proceedings in the Circuit Court against him claiming he owed her money for maintenance. Early in 1987 he took legal advice about the marriage and subsequently the present proceedings were instituted.
The respondent in her evidence said that at the time of the marriage she was involved as a development manager in setting up the business in Ireland of the company she worked for. It had to be got off the ground. She did work many weekends. She was out late on Wednesdays working until 7 and not getting home for one or one and a half hours later. She had told the petitioner her workload would diminish after three months. She agreed that when she was working she was incapable of looking after the house to the extent the petitioner required. He found it hard to accept disorganised work and the lack of company. She said his philosophy was that you work to live. She tended to live to work. There was an enormous difference of opinion about her work. Prior to the marriage they had made a joint decision that she should work.
The only substantial conflict of evidence between the parties was in relation to the abortion. The respondent says that before the marriage they had agreed that at that time they would not have any more children. She was on a contraceptive pill and inadvertently became pregnant. She discussed the pregnancy and termination with him and told him that the abortion would take place and he did not express any views. They did not discuss the pros and cons but he was aware that it would happen. I think it is probable the respondent did refer to abortion when she told him she was pregnant. But I accept that the petitioner did not agree to it and that he was upset when he learned of it. Having regard to the priority of her work the respondent felt there was no alternative.
On behalf of the petitioner Dr. James Behan, consultant psychiatrist, gave evidence. He met and talked with the petitioner on a number of occasions and for a total of 20 hours with a view to assessing him and the marriage. He had not seen the respondent but had read Dr. Fahy’s report on her. Dr. Behan thought that at the time of the marriage the petitioner was confused by the loss of his first wife and failed to understand the respondent. He thought he was an orderly tightly controlled person but not intuitive to his partner’s emotional problems. When he married he was emerging from a normal grief reaction. He was emotionally needy and vulnerable to the respondent. Dr. Behan described marriage as a partnership at emotional and other levels. Except in the sexual area this marriage did not work. He was not tuned to her emotional needs. Dr. Behan then proceeded to give evidence concerning the respondent saying that she had emotional difficulties. She suffered from mood swings – cyclical affective or mood disorder. The swing was between slight elation and rather more than slight depression. This does not mean she could not form a marriage relationship but Dr. Behan thought she was incapable of forming this relationship with the petitioner due to his personality. With a more sympathetic person this might not have been the case. He thought the respondent’s disorder – her mood swings – had had a destructive effect on the 20 months of this marriage. At this point in the evidence counsel for the respondent objected that as Dr. Behan had never met or examined her he was not qualified to give evidence of her condition. Dr. Behan said he had obtained his information about the respondent from what the petitioner had told him about her and their marriage and from reading Dr. Peter Fahy’s report. It was submitted that his opinion must be based on hearsay in these circumstances. Mr. Rogers relied on the observation of Lawton L.J. in R. v. Turner [1975] Q.B. 834 at p. 840 and also on the statement of the law in the 13th edition of Phipson on Evidence at p. 561.
“An expert may give his opinion upon facts which are either admitted, or proved by himself, or other witnesses in his hearing, at the trial, or are matters of common knowledge; as well as upon an hypothesis based thereon.”
I accept this as a correct statement of the law and I find that Dr. Behan’s evidence in relation to the respondent whom he has never met or examined and her mental condition is inadmissible as being based on hearsay.
Then Dr. Peter Fahy who had been appointed by the Master of the High Court to conduct a psychiatric examination of the respondent gave evidence. He examined her on the 26th April, 1988, and obtained a detailed history of her life and family background. He considered the relationship of the parties up to the date of the marriage. His opinion was that there was no indication of anything of a disturbed nature in their relationship. After the marriage there was evidence of marital disharmony. The respondent complained that the petitioner had”raped” her on the wedding night. Dr. Fahy thought there was a possibility of a misperception by both parties of this episode. The honeymoon was normal and relationships at all levels were good. Dr. Fahy then considered the respondent’s history after the marriage, working, the pregnancy and the abortion. He thought in relation to these matters that there were signs of incompatibility between these two people which had not been perceived earlier. They have different perceptions and have difficulty in communicating. At the time when the respondent went into St. Gabriel’s Hospital in July, 1984, he did not think her psychiatrically ill. She was worn out and tired and he advised her to go into hospital. He diagnosed her at the time as suffering from depression secondary to stress and suffering from fatigue. He treated her for a stress state with a small dose daily of Ativan which was an antidepressant and can cause depression if suddenly withdrawn. It is not prescribed now. He suspected an infection at the base of her lung and tests were carried out and antibiotic treatment given. Then Dr. Fahy went on holidays and left her in charge of a locum, Dr. Victor Fennell, under the supervision of Dr. Tubridy, consultant psychiatrist, at St. John of God’s Hospital, Stillorgan. When she was transferred to St. John of God’s she was confused. There was no gross evidence of a psychosis but after a few days she developed a paranoid reaction which gradually improved under treatment with discharge finally on the 5th September. She had been taken off Ativan in St. John of God’s Hospital. This could cause anything from feeling irritable and edgy to an epileptic fit or mental abnormalities such as a paranoic state.
Dr. Fahy did not see the respondent after his return from holidays possibly for about six months later when she came casually to see him at the Blackrock Clinic and he then thought her normal and reassured her of her basic normality. Dr. Fahy thought both parties had done their best to make the marriage work but the fact remained that it had broken down. It was in his view a mistake for these two people to have got married. They were not compatible. Their perceptions of life and expectations of life, lifestyles, work and family life all appear to be different and there seemed to be a clash of temperament. The respondent struck him as a woman who needed a certain amount of latitude and freedom and the petitioner was a person who liked to have things under control. This was not abnormal. He did not consider the respondent to be suffering from a serious pyschotic illness of a chronic nature. It could be said that she had had two paranoid reactions and might have another. But on both the occasions the episodes were transient and there was a good deal of stress and physical and medical factors in the second. He was of opinion the respondent was capable of sustaining a proper emotional relationship and that the breakdown of the marriage had been caused by incompatibilities. Despite this breakdown her activities indicated a stable capable personality who had no problems at relating to people and in fact must be very good at relating to people.
Dr. Fahy also examined the petitioner on the 10th December, 1988. He could find no sign of any psychiatric or psychological disturbance. He thought the petitioner entered into the marriage with the best possible intentions; that he did his best for his wife both before the breakdown and while she was in hospital and that his motivation at all times was for the best but that he began to perceive that things were not going to work out. Nevertheless he continued to be as supportive as he could be. Dr. Fahy summarised his opinion by saying that the petitioner was capable in the ordinary sense of entering into a marriage at the time of his marriage to the respondent but his previous experiences including the proximity of his previous wife’s death and the burden of providing a suitable home for his family would cloud his judgment as did the quality of his relationship with the respondent before his marriage to her and the subsequent emergence of her normal lifestyle as Dr. Fahy perceived it. This last I think refers partly to the priority and importance which she attached to working as well as to her need for latitude and freedom.
Dr. Fahy thought the respondent made a similar mistake concerning the petitioner. They both entered the marriage under a serious misperception as to their suitability. He says:
“I think the situation under which they met, becoming business acquaintances, later friends and then lovers, entering into what appeared to be a reasonable marriage is a very understandable one but the entire situation and experiences that they had had clouded their judgment and they were not perceiving the marriage situation accurately when they entered into it. This does not imply that either of them had anything basically psychologically or psychiatrically wrong with them.”
That then is in a summary form the evidence which has been given at the trial of this petition. The petitioner impressed me by his normality. He clearly had a happy and successful first marriage and the capacity to be a good husband. He was of a mature age, well balanced and successful in his business career. The respondent impressed me as an intelligent and strong minded person with organisational skills. She too had a happy and successful previous relationship. There was really no allegation, except for the one on the night of the marriage, that on the sexual level, the relations between the parties were not satisfactory or had any particular difficulties. Undoubtedly the priority and importance which the respondent attached to her work in business as compared to her position as wife in the home was a source of discord between the parties. She seemed to me less willing or perhaps capable than the petitioner of being flexible, of give and take, on any matter which she regarded as important. Broadly I accept Dr. Fahy’s assessment of the parties and I accept his opinion that neither of them has anything basically wrong psychologically or psychiatrically. Having regard to their personalities and temperaments they are not well matched or easily compatible.
I turn now to consider the submissions made by the parties. Mrs. McGuinness for the petitioner submits that in this case the parties were incompatible at the time of their marriage though they were not then aware of this; that in addition the respondent suffered from a degree of mental disorder namely a propensity to cyclical mood swings from elation to depression. For this Mrs. McGuinness relies on the evidence of Dr. Behan but submitted that even without any element of mental disorder, incompatibility is in itself a ground for a decree of nullity. She did not attempt to define incompatibility. I understand it to mean difficulty or inability to get on together – mutual intolerance. The incompatibility arose, it is said, from the respondent’s immersion in her career which, on his side, the petitioner did not expect – particularly her working outside normal hours – whereas the respondent’s view was that she should be free to do this and should not be bound to take part in social life with her husband. The two were not able to communicate or talk over these difficulties and grasp each others emotional needs. I think to a considerable extent this correctly expresses the respondent’s mind and attitude to her work and to social life with her husband and the evidence makes me think that she was unwilling rather than unable to discuss it with the petitioner. Mrs. McGuinness relied on a number of cases namely the judgment of Kenny J. in S. v. S. (Unreported, Supreme Court, 1st July, 1976); R.S.J. v. J.S.J. [1982] I.L.R.M. 263; D. v. C. [1984] I.L.R.M. 173; W. v. P. (Unreported, High Court, Barrington J., 7th June, 1984) and B. v. M. (Unreported, High Court, Barrington J., 27th March, 1987).
Mr. Rogers for the respondent also relied on the same dicta of Kenny J., in S. v. S. (Unreported, Supreme Court, 1st July, 1976). He submitted that (in accordance with this statement of the law) the institution of marriage depends so much on the compatibility of the parties that if there is concealed from one or both of the parties before the marriage a quality in one or both or a dynamic between them which would have the effect of de-stabilising the marriage in a fundamental way and which is such as to amount to an incapacity to maintain a normal marriage relationship, then it is open to the court to decree nullity. Here the respondent did not suffer from any mental illness or personality disorder but there was a fundamental incompatibility between the parties he submitted.
Since the earliest times there have been legal rules prescribing the conditions under which the marriage contract is valid and binding and courts have exercised the jurisdiction to declare in particular cases that those conditions have not been fulfilled and that no marriage or contract of marriage has ever come into existence. Such a declaration is commonly called a decree of nullity. It is clearly distinguishable from divorce, that is, a decree of dissolution of an existing valid marriage. The jurisdiction in suits for nullity of marriage was formerly exercised by the ecclesiastical courts. After the Reformation the jurisdiction continued to be exercised by the ecclesiastical courts of the Roman Catholic Church and of the Church of Ireland. The civil courts in Ireland however, recognised only the jurisdiction exercised by the Church of Ireland courts. The Matrimonial Causes and Marriage Law (Ireland) Amendment Act, 1870, vested this jurisdiction in the High Court. By s. 13 the High Court is to:
“proceed and act and give relief on principles and rules which, in the opinion of the . . . Court shall be as nearly as may be conformable to the principles and rules on which the ecclesiastical courts of Ireland have heretofore acted and given relief . . .”
The rules prescribing the conditions under which a marriage contract is valid, include rules relating to the formalities which must be observed, the consent of the parties which must exist at the time of the marriage and the capacity of the parties. It is only the last of these which is at issue in this case. Until recently impotence was the only ground upon which a marriage was voidable in Irish law. If at the time of the marriage either party was impotent in the sense of being unable to consummate the marriage, the court might declare the marriage null and void. It might arise from a number of causes ranging from a lack of sexual organs to malformation rendering intercourse impossible. In more recent times the courts have recognised psychological causes such as invincible repugnance for the sexual act resulting in paralysis of the will. This may be general or it may exist in one party to the other in a marriage. See G. v. G. (1871) L.R. 2 P. & D. 287 where there was evidence that one party was engaging in sexual intercourse with a third party, although psychologically impotent vis à vis the other spouse. It is clear that development of the law relating to nullity has occurred as a result of judicial decisions in particular cases and this development has continued in recent years. In S. v. S. (Unreported, Supreme Court, 1st July, 1976) Kenny J. at p. 5 of his judgment said:
“Section 13 of the Act of 1870 did not have the effect of fossilising the law in its state in that year. That law is, to some extent at least, judge-made and courts must recognise that the great advances made in psychological medicine since 1870 make it necessary to frame new rules which reflect these. Despite this, I think that the two fundamental principles I have mentioned are still basic to the law of nullity.”
This last was a reference to an earlier passage at p. 4-5 of his judgment where he said in reference to the historic jurisdiction:
“In that law two principles were fundamental in suits for nullity. The first was that the petitioner had to establish his or her case with a high degree of probability or, as Lord Birkenhead expressed it in C. (Otherwise H.) v. C. [1921] P. 399, ‘must remove all reasonable doubt’. The second was that the ground of nullity had to exist at the date of the marriage; events or acts subsequent to the marriage were never a ground for a declaration of nullity ( Napier v. Napier [1915] P. 184).”
In R.S.J. v. J.S.J. [1982] I.L.R.M. 263 the petitioner who was the husband suffered, at the time of the marriage and after, from an illness or personality defect resembling schizophrenia and after eight months the parties separated. The petitioner claimed that though not incapable of understanding the nature of the marriage contract he was so ill as not to be able to sustain a normal marital relationship. Barrington J. said at p. 264:
“The law has always accepted impotence as a ground for avoiding a marriage. But in ways what is contended for here is a much more serious impediment to marriage. No doubt there have been happy marriages where one of the parties was impotent. But it is impossible to imagine any form of meaningful marriage where one of the parties lacks the capacity of entering into a caring, or even a considerate, relationship with the other.”
Later he said at p. 265:
“If therefore it could be shown that, at the date of the marriage, the petitioner, through illness, lacked the capacity to form a caring or considerate relationship with his wife I would be prepared to entertain this as a ground on which a decree of nullity might be granted.”
In that case the learned judge found the petitioner did not lack this capacity and dismissed the petition. Nullity proceedings were brought on a similar ground in D. v. C. [1984] I.L.R.M. 173 in which Costello J. found that at the time of the marriage the respondent, the husband, was suffering from a psychiatric illness which made it impossible for him to:
“enter into and sustain the relationship which should exist between married couples if a life long union is to be possible.”
The learned judge then proceeded as follows on pp. 188-189:
“The courts have never approached claims for nullity decrees merely by applying principles of contract law or statutory prohibitions and even when marriages have been entered into with complete freedom untainted with illegality, they may be declared null and void if one of the spouses is impotent at the time of the marriage and unable to consummate it. (See McM. v. McM. [1936] I.R. 177). But marriage is by our common law (strengthened and reinforced by our constitutional law) a life long union, and it seems to me to be perfectly reasonable that the law should recognise (a) the obvious fact that there is more to marriage than its physical consummation, (b) that the life long union which the law enjoins requires for its maintenance the creation of an emotional psychological relationship between the spouses. The law should have regard to this relationship just as it does to the physical one. It should recognise that there have been important and significant advances in the field of psychiatric medicine since 1870 and that it is now possible to identify psychiatric illnesses, such as for example manic depressive illness, which in some cases may be so severe as to make it impossible for one of the partners to the marriage to enter into and sustain the relationship which should exist between married couples if a life long union is to be possible. Extending the law by reasoning by analogy is as old as the common law itself (in the thirteenth century it was pointed out that ‘if any new and unwonted circumstance shall arise then, if anything analogous has happened before, let the case be adjudged in like manner, preceding a similibus ad similia’ (Bracton ‘De Legibus’ quoted in Cross ‘Precedent in English Law’ p. 24)) and so it seems to me (as it did to Barrington J. in R.S.J. v. J.S.J. ) that if the law declares to be null a marriage on the grounds that one spouse is through physical disability incapable of the physical relationship required by marriage it should do likewise where one spouse is through a psychiatric disability unable to enter into and sustain the normal inter-personal relationship which marriage also requires. Therefore in the light of the respondent’s psychiatric illness from which he suffered at the time of the marriage and which incapacitated him in the way I have described the petitioner has made out a prima facie case for the relief claimed.”
Having considered various defences which arose in the case, the learned trial judge went on to find that the petitioner was entitled to a decree of nullity.
This approach has been followed in a number of later decisions in which mental illness was established, namely in M.E. v. A.E. [1987] I.R. 147, a decision of O’Hanlon J. and D.C. (D.W.) v. D.W. [1987] I.L.R.M. 58, a decision of Blayney J. Further in W. v. P. (Unreported, High Court, Barrington J., 7th June, 1984) the learned judge was prepared to consider “emotional disability or incapacity” as a ground for granting a decree of nullity in a case where mental illness in the accepted sense had not been shown to exist. This line of judicial decisions has been the subject of consideration in U.F. (U.C.) v. J.C. (Unreported, High Court, Keane J., 24th May, 1989). At pp. 22-24 of his judgment in reference to the passage from the judgment of Costello J. in D. v. C. [1984] I.L.R.M. 173 which I have quoted Keane J. said:
“Having considered these crucial passages anxiously, I am bound to say, with great respect, that I find the argument by way of analogy less than persuasive. In the case of impotence, the law is concrete and specific to such a degree that the lay person encountering it for the first time may find it joyless and mechanical in its approach to the most intimate areas of human experience. If the marriage has been consummated, cadit questio. If it has not – and this immediately reduces the number of cases involved to a narrow spectrum indeed – the sole question is whether this is due to the impotence of one or other of the parties. Given that in a more scientifically enlightened age, psychological tests may, as Kenny J. pointed out, legitimately supplement the cruder physiological tests of an earlier epoch, the criterion remains stark and simple; was this man or woman impotent at the time of the marriage? The court reaches its conclusion on the basis not only of what the parties say in evidence but of medical evidence directed to ascertaining whether impotence, however caused, existed or not at the date of the marriage. It is an investigatory process which is as clinical as it is necessarily disagreeable for all concerned.
The function of the court is narrow and precise. It is the sort of legal framework that one expects, given the caution and circumspection with which the law has always proceeded before granting a decree of nullity.
Contrast this with the new ground of nullity which emerges from R.S.J. v. J.S.J. and C. v. D. We move from the cold objectivity of ascertainable clinical findings to the elusive and impalpable area of the emotions. The court must now discover not simply whether a spouse suffered in the past from some illness, but whether that illness prevented him or her from ‘entering into a caring, or even a considerate, relationship’ (per Barrington J.) or entering into and sustaining ‘the normal inter-personal relationship which marriage . . . requires’ (per Costello J.).
How is the court to decide what these phrases mean in the context of any particular case? Not certainly by reference to the evidence of psychiatrists; they can, of course, assist the courts as to the nature and extent of any mental illness suffered by a spouse, but it is the responsibility of the courts alone and not of psychiatrists, however eminent, to determine whether a decree of nullity should be granted. Consequently, it must be for judges alone to decide whether in any particular case, “a caring or . . . considerate relationship” or “a normal inter-personal relationship” was incapable of being achieved or (perhaps even more difficult to measure) once achieved, sustained through all the various hazards of the matrimonial state. A greater contrast could not be imagined to the grounds permitted by the existing law. These judgments undoubtedly constitute a development of the existing law, but it is a development which consists in the addition of a new ground of nullity not hitherto recognised by the courts, which the legislature has refrained from providing for and which is wholly different in nature and in its susceptibility to legal proof from the existing ground of impotence.”
At p. 30 he says:
“I am forced to the conclusion, which I reach with all respect to those High Court judges who have taken a different view, that to formulate new grounds for nullity in the manner suggested constitutes an impermissible assumption of the legislative function which Article 15, s. 2, sub-s. 1 of the Constitution vests exclusively in the Oireachtas.”
In U.F. (U.C.) v. J.C. (Unreported, High Court, Keane J., 24th May, 1989) the petitioner who was the wife had claimed that the respondent was, at the time of the marriage, incapable by virtue of his homosexual nature of forming or maintaining a normal marital relationship with the petitioner. Keane J., having decided that such incapacity to form a normal marital relationship did not constitute a ground of nullity, rejected the petition.
This decision by its conclusion that the line of decisions referred to formulates new grounds for nullity and constitutes an impermissable assumption of the legislative function raises fundamental and difficult questions concerning the common law and the exercise of the judicial function in relation to it. Historically the common law has developed at least in part by the application of established principles to new cases – to novel facts and circumstances. It has undoubtedly involved the development of the law and novel judicial decisions are not uncommonly referred to as judge-made law. It is a judicial activity which has occurred in Ireland for centuries and has continued in the superior courts prior to and since the enactment of the Constitution of Ireland, 1937. In my view it is not in its proper exercise an impermissible exercise of the legislative function.
It seems to me that impotence at the time of marriage was recognised by canon law and the ecclesiastical courts as the ground of nullity because it was an incapacity which was fundamental to the marriage contract. The law and the courts recognised it as an element which was so fundamental that if it was lacking no marriage contract was possible. In my view the reasoning of the learned judges in the judgments in R.S.J. v. J.S.J. [1982] I.L.R.M. 263 and D. v. C. [1984] I.L.R.M. 173 to which I have referred proceeds by the application of the same principle namely that the lack of a capacity to form or maintain a caring marital relationship is fundamental to the existence of a valid marriage. I readily agree with the observation of Keane J. that in cases in which impotence is alleged the function of the court is narrow and precise and is to decide on the basis not only of what the parties say in evidence but of medical evidence directed to ascertaining whether impotence however caused existed at the date of marriage and that this contrasts with cases where an incapacity to form a caring marital relationship is claimed, when the court has to consider the “illusive and impalpable area of the emotions”. Such cases are bound to involve serious difficulties of proof. But difficulties of this kind cannot require the court to lower the standard of proof which is required.

In my judgment the principle deducible from the decisions of R.S.J. v. J.S.J. [1982] I.L.R.M. 263 and D. v. C. [1984] I.L.R.M. 173 that where serious incapacity to form and sustain a caring marital relationship is shown to have existed at the time of the marriage it is a proper ground upon which a decree of nullity may be given is correct. The onus of proof is as expressed by Kenny J. in S. v. S. (Unreported, Supreme Court, 1st July, 1976) that the petitioner has to establish his or her case to a high degree of probability or as Lord Birkenhead expressed it”must remove all reasonable doubt”. As a general rule this will be in cases where a serious mental illness or a serious personality disorder is shown to exist. One cannot say there may never be exceptions where the incapacity is shown in accordance with its heavy onus of proof to exist without serious mental illness or serious personality disorder.
I now turn back to the facts as I find them in the present.case. Both parties are mature and intelligent and have had previous successful and fulfilling relationships. The evidence of Dr. Fahy, which I accept, is that neither the petitioner nor the respondent was suffering from any (let alone a serious) mental illness at the time of the marriage. He thought both their perceptions and judgments of each other were clouded by their previous bereavements and the experience of the happy relationship before marriage. He thought they both had the capacity to form caring marital relationships but not with each other as they were incompatible. I am not convinced that this last is correct. In my view this falls:far short of proving the incapacity necessary to be established before a decree of nullity can be given. Indeed I am not satisfied that any incapacity in regard to each other has been shown to exist having regard to the history of their relationship.
I am acutely aware that the petitioner and the respondent find themselves in the tragic situation that their marriage has failed. It has not been shown to be an invalid marriage in respect of which a decree of nullity could be pronounced and this court has no jurisdiction to grant a dissolution of a valid marriage.

W (otherwise C) v C

[1989] IR 696

Barron J.
17th February 1989

The petitioner is a primary school teacher. The respondent is an accountant. They met in October, 1974, when the petitioner was 22 years of age. She is the third in age of a family of seven and had had a strict home upbringing. After obtaining her leaving certificate she became a student at a teacher training college where discipline was equally strict. When she met the respondent she had been a teacher for approximately a year and had had few friendships with members of the opposite sex and nothing more serious.
After their meeting the parties started to go out together. The relationship seems to have been a very uneasy one. It seems to have been more an imposition of the respondent’s will over the petitioner’s than anything else. He perpetually made derogatory remarks about her both to her and to others and seemed to enjoy insulting her in this way. She made various attempts to break off their relationship, if such it could be called, but without success.
The climax came in October, 1975. The respondent called to the petitioner’s digs without arrangement. Notwithstanding her protests he insisted upon coming into her flat and notwithstanding further protest insisted upon having sexual intercourse with her. She was at that time a virgin and was extremely upset both by the act itself and by the violence which accompanied it. He called her a whore and treated her as being unclean forcing her into a bath of dettol, whether it was to cleanse her or to prevent conception is not clear. She herself was in despair, feeling dirty and used and was sure that no one would want her. She went to the doctor the following day and was told it was too early to diagnose whether or not she was pregnant. This state was confirmed about two weeks later.
The petitioner told her brothers and sisters and got them to tell her parents. Their attitude as expressed by her father was that she would have to marry the father of the child. They did not understand her predicament and were essentially unable to give her any support. The father of the child when told became even more aggressive towards the petitioner and wanted her to have an abortion. She wanted to keep her child and when offered help based upon the child being adopted was unable to accept it.
She was employed as a primary teacher and when the fact of pregnancy began to show informed the principal of her school who told her that she could not stay as an unmarried mother and made it quite clear to her that unless she married there was no future for her in the teaching profession. She felt obliged to give up her job and did so. She saw the respondent at weekends. He did not offer to marry her but at the same time did not get out of her life. She herself was unable to think beyond the fact of her pregnancy and that she had lost the respect of everyone. She felt that unless she married she could not recover her self-respect nor work again in her profession. She decided to marry and the respondent agreed. She made all the arrangements herself. There was a small reception after the wedding but no honeymoon. The reception was not attended by either of her parents or by a priest friend to whom she had gone for advice, with whom she was close.
The relationship between the parties forged upon this basis totally failed. The husband was cruel and sadistic. He was abusive and violent from the start. His behaviour disturbed the other tenants and their landlord evicted them. They went to live with the respondent’s parents. His conduct there was no better. In sexual matters he was totally repulsive. He forced intercourse on the petitioner and would insist on pinning her arms behind her back. They had only a single bed and after intercourse he insisted that she lay with her head at his feet when he would proceed to rest his feet on her face and pull the bed clothes off her. On several occasions he attempted buggery. While in labour preceding the birth of their son he insisted on intercourse. While she was in hospital he visited her once and then in a drunken condition. On her return home he attempted intercourse and burst her stitches. She escaped further assault by locking herself in the bathroom.
The child of the parties was born in June and the petitioner went back to work two weeks later. There have been no other children. The petitioner’s living conditions were alleviated to some extent by the fact that the respondent obtained employment which necessitated his being away from home during the working week. In addition to his abuse and violence, in a further manifestation of his sadism he insisted on compelling the petitioner to hand over her earnings to him and did not allow her more than £2 at a time. By late 1977 the petitioner decided that she could stand no more and obtained a flat of her own. She brought the baby with her. The respondent’s attitude to this was again to refuse to take no for an answer and to force his way into any accommodation which she obtained causing her to have to move flats from time to time.

In 1979 the petitioner sought the protection of the courts. This commenced a saga of applications to the court mostly commenced by the respondent who took the opportunity of the court proceedings to use them as a means to force himself upon the petitioner. He would continually break the terms of the court orders and have the matter brought back into court. In 1984, the respondent was refused all access to his child and barred from making court applications without leave of the court. In that year also he abducted the petitioner for some hours. Arising out of this incident, he received a three year suspended prison sentence.
No other children were born to the parties. Although the petitioner obtained a church annulment in 1984 in proceedings commenced in 1980, it was not until 1987 that she became aware that she could apply for nullity of her marriage through the courts. The present proceedings seek such relief.
The respondent did not enter an appearance and has indicated through solicitors that he did not intend to take any part in these proceedings. I am satisfied that I have heard the full facts and that there is no collusion between the parties. I accept the petitioner’s evidence. She gave her evidence clearly and fairly and in my view without exaggeration. Only in so far as the events between Christmas 1975, and her marriage in March, 1976, was she unsatisfactory in her evidence and then only in regard to dates. I am satisfied that her interview with the principal of the school where she was employed and her decision to leave work took place earlier than she has said in her evidence and I am satisfied that she was mistaken about this. It is not of any material significance that she should have done so.
Evidence was also given on the petitioner’s behalf by Dr. D., a psychiatrist who had treated the respondent in the year, 1983. He gave evidence that he had seen the respondent professionally on a number of occasions. He had formed the opinion that the respondent suffered from a gross personality disorder which had been present all his life and predated his marriage. He had a complete contempt for authority and saw others only as puppets to be manipulated. He was unable to see any fault in himself and was incapable of changing. In his opinion the respondent was unable to form a meaningful relationship with any marriage partner.
The petitioner seeks relief upon two bases. First, it is submitted that there was no valid consent to the marriage and secondly it is submitted that the respondent was unable by reason of his personality disorder to sustain a proper marriage relationship.
I am satisfied that the petitioner was unable to see further than her pregnancy. I am also satisfied that she felt that she was dirty and dishonoured and that she was no longer an ordinary member of society. She said that she went around like a zombie at this period and I have no doubt that she did. Her decision in the circumstances to marry the respondent could only be regarded as one brought about by the strain of her circumstances and the lack of ability for normal thought which she was manifesting at that time. In my view there was no element in her decision of a wish or desire to set up a matrimonial home with the respondent. She married the respondent in order to be able to resume her profession and to resume her place in society. In my view a consent given in such circumstances is not a true consent. It is just as much a sham as a consent solely for the purpose of escaping from a repressive political regime as in Szechter v. Szechter [1971] P. 286 or H. v. H. [1954] P. 258. The circumstances are not as extreme, but the quality of the apparent consent is the same.
The petitioner’s second submission is equally valid. I accept fully the evidence of Dr. D. It is quite clear that at the date of the marriage the respondent was suffering from a gross personality disorder and that this disorder made him incapable of forming any proper marriage relationship whether with the petitioner or anyone else. For the purpose of these proceedings it is sufficient that he was unable to form any proper marriage relationship with the petitioner.
Having regard to all the circumstances, I will grant the relief sought on both grounds claimed.

K.W.T. v. D.A.T.

[1992] 2 IR 13

Murphy J.
18th March 1992

In these proceedings the petitioner claims that due to the state of mind, mental condition, emotional development and personality of the respondent or the petitioner or both of them their purported marriage was null and void and of no legal effect as they lacked the capacity to enter into and sustain a normal functional life-long marriage relationship with each other.
The marriage ceremony between the petitioner and the respondent took place on the 5th October, 1972, at a Roman Catholic Church in the city of Dublin. Thereafter and subject to the special exigencies of the petitioner’s profession the parties lived together as man and wife until the month of January, 1989. Three children were born to the parties, namely C. born in June, 1975, O. born in January, 1979, and N. born in April, 1983.
The petitioner was born in January, 1950, and was reared in what would appear to be reasonable or average circumstances and in the Church of Ireland faith. The respondent was born in May, 1949, and was brought up in the Roman Catholic faith again in circumstances which would appear, superficially at any rate, to represent something approximating to or better than an average standard of physical and emotional support subject to certain vicissitudes which were no doubt disturbing but not altogether extraordinary.
The parties met as undergraduates in university in Dublin in 1969. It would appear that the petitioner was the better organised and more successful student. The respondent feels that she had difficulties in making the transition from secondary school to undergraduate level. Both parties did graduate and the petitioner had the distinction of winning a scholarship to a university in England. I think that both parties were understandably proud of the fact that they were what they described as “first generation third level graduates”.
Almost immediately after the marriage the young couple moved to England where the petitioner took up his scholarship and from where the respondent commuted as necessary to complete her undergraduate studies at university in Dublin. It would appear that this was a reasonably happy period for the parties.
They returned to Dublin sometime in 1974 and subsequently the petitioner obtained employment which involved them living abroad for periods.
The parties returned to Dublin in 1987. Sometime after that the petitioner developed a relationship with a girl whom he introduced to his wife. After this there followed some efforts at reconciliation but they were abortive and the petitioner was excluded from the family home in or about the month of January, 1989.
The petitioner and the respondent are in agreement to the extent that they are both anxious to obtain a decree of nullity. The case was fought and witnesses were cross-examined at length however with a view to each party establishing that it was a defect in the other of them which was the cause of or which contributed to the greater extent to what is now said to have been the inevitable failure of their marriage.
Obviously the marriage succeeded or appeared to succeed in many respects and over a long period of time. Indeed it would be easy to believe that their friends and contemporaries must have been envious of their romantic marriage; their intellectual attainments; their vocational successes; their glamorous lifestyle and their three children. To the extent which these are objective realities they cannot be disputed. What is said is that below this attractive surface there was a fundamental flaw which negated the very basis of the matrimonial relationship.
The examination of the witnesses was facilitated and in part protracted by their ability to recall in detail and, I believe, with accuracy, events stretching back to their respective childhoods and to analyse those facts and their reactions to them and to some extent the consequences which they believe flowed from them. Both parties were careful, precise and almost pedantic in the manner in which they gave their evidence. I believe they were both entirely truthful in the evidence which they gave in relation to the particular facts of which they had knowledge even though it was obviously painful and embarrassing in certain respects. However I do not necessarily accept the inferences, suspicions or theories advanced by either party in relation to the conduct or personality of the other. In particular I am not satisfied that there was adequate grounds for the respondent’s belief that the petitioner was homosexual or bisexual. I would have thought, and more importantly it is the clear opinion of Dr. F., that the petitioner’s conduct and activities would indicate the contrary. If it was implied, as some questions appeared to do, that the respondent for her part was a lesbian this implication too I would reject. On the other hand the fact that the respondent developed a close friendship with an au pair girl who was very much her junior may be of considerable significance in a non-sexual context.
Of what did the parties complain? As I see it they both agree that the immediate and persistent problem was that they were unable to discuss problems together. The petitioner’s evidence was to the effect that from the outset the respondent was invariably tense so that it was difficult to discuss anything with her. He explained the matter further by saying that he was unable to influence her opinion. He maintained that she was dogmatic and unable to negotiate on any issue. The result was that he isolated himself and was from the days in England onwards progressively excluded from the respondent’s life. With this view the respondent had a significant measure of agreement although it seemed to me that a distinction was drawn between problems or discussions calling for discussion, analysis and action and other debates which related to events which had occurred in either the recent or distant past but which were over and in respect of which no further action was required. The respondent was disappointed that her husband dismissed her interest in books on pregnancies which she was reading when her first child was born. She resented his unwillingness to discuss or apparently to listen to her account of visiting hospitals with their sick child. Whilst it would be difficult and perhaps futile to reconcile accounts or recollections of such incidents I was left with the impression that the petitioner’s approach to domestic problems, such as the tragic convulsions of his young son, was to do what he could to assist if he was there when the seizure occurred but if he was not and if the problem had been dealt with by his wife or the doctor he did not encourage what he would have seen as constant repetition of the history of the event. It did not seem to me that this represented any squeamishness on the part of the petitioner but rather a reluctance to engage in what he would have regarded as sterile debate. There can be no doubt but that both of the parties communicated, discussed and agreed numerous topics in an entirely efficient and effective manner. They both agreed that this was so. They had to operate domestic life in very special circumstances and with the added burden of one child who has a serious illness. They had a professional life which involved making and keeping social agreements at a very demanding level. This was not a marriage without discussion. It nowhere resembled the not uncommon tragedy where parties to a marriage do not talk to each other at all. The problem in the present case was the level and the nature of the communication.
The respondent summarised the problem as she saw it when she said:
“We both learned to skirt issues. We did not open them out. We did not face them. We were careful and we were polite. There were no rows. There was no meeting of minds.”

She then went on to explain the consequences or perhaps the cause of this approach which she summarised in one crucial sentence as follows:
“There was no emotional closeness in the relationship.”
Indeed this was substantially the conclusion reached by the two distinguished psychiatrists Dr. F. and Dr. B. who examined both of the parties at considerable length. In addition to giving evidence under oath in court the reports prepared by them were put in evidence so as to ensure that the history on which they based their conclusions accorded in substance (as it does) with the evidence given by the parties themselves under oath and accepted by the court as being truthful.
Both psychiatrists concluded from their interviews with the parties that at the time of the marriage the respondent had (for reasons which it is unnecessary to repeat and which do not reflect discredit on her or her family) an immature and insecure personality as a result of which she would require an unusually high degree of emotional support if she was to preserve the relationship which marriage involves. The doctors were able to obtain a significant degree of objective evidence to support their diagnosis. As a student in university the respondent had sought the professional assistance of Dr. M. who was then medical adviser to the student body. Following from such advice Dr. M. admitted the respondent to St. Patrick’s Hospital where she was detained for nine weeks after which she discharged herself. The hospital records and the medication provided for the respondent indicated that she was predisposed to depression as the doctors had anticipated from their own analysis and it appeared that this condition had been treated aggressively by Dr. M but unfortunately there was no evidence that Dr. M. was ever afforded the opportunity of satisfying himself that the treatment had been fully effective. The respondent continued to take medication for some time after she was discharged from the hospital until she of her own volition”weaned herself” off the medication. The evidence of the respondent was, as I accept it to be, that she never subsequently received treatment for any comparable disorder.
Dr. B. summarised his opinion at the conclusion of a lengthy analysis of the personality and problems of each of the parties in the following terms:
“In my opinion this couple failed to form and sustain a normal functional marriage relationship characterised by mutual love affection companionship capacity to communicate and capacity to address problems.

In my opinion by reason of their respective emotional immaturities and the resultant personality handicaps derived therefrom and which were present at and prior to the time of marriage the couple lacked the capacity to form a normal marriage relationship with each other.”
Dr. F. in his report expressed the opinion that the couple was not”in a position to make a fully informed decision to enter into matrimony”largely due to the depression from which the respondent was or had been suffering and then went on to deal with the emotional aspect of the problem in the following terms:
“As the marriage progressed it appears that their personalities were such that they were unable with the best will in the world, to enter into and sustain a valid marriage.”
In their evidence to the court each of the psychiatrists was emphatic in his opinion that the marriage was doomed from the outset and that the polarisation and separation of the parties was entirely predictable. As I understand it both psychiatrists are fully satisfied that when the marriage took place such was the immaturity and insecurity of the respondent that she had a special or excessive need for emotional support if a marriage relationship was to be sustained. It was possible that the respondent might have entered into an effective matrimonial relationship with a man of exceptional emotional maturity and generosity. A man who could act virtually as her therapist as much as her husband. Unfortunately the petitioner was not such a man. Whilst he was, in addition to being a person of exceptional intellectual ability, a caring and considerate husband he did not possess adequate emotional resources to compensate for his wife’s deficiency in that regard. As I understand the medical evidence it is not suggested that, apart from the illness suffered by the respondent during her undergraduate years, either party suffered from anything as serious as a psychiatric disorder on the one hand or anything as trivial as a defect in temperament on the other. The problem was identified by both doctors as excessive emotional demand by the respondent by virtue of her immaturity and insecurity and as being of such a degree which would prevent the respondent forming and sustaining a normal functional marriage relationship with the petitioner or any other man who was not in a position to supply an unusual or special degree of maturity, understanding and sympathy for the respondent’s needs.
Not only were the doctors clear in identifying the problem but they were adamant that it existed at the time when the marriage was contracted.

They were clear that the purported marriage was bound to fail. The fact that this pessimistic view was not publicly vindicated for some 18 years they explain as having been due largely to the determination of both parties to maintain the facade of the marriage by refraining from confronting the problems in their relationship. The experts were both emphatic that the examination of the history of the married life shows that these problems had in fact emerged when the couple were living in London within some three or four years of their marriage. It is said that by that time it was clear that the marriage was moving inevitably and relentlessly to the breakdown which was not formalised for a further 12 years or so.
The issue before the court then is whether the evidence of fact given by the parties and the expert evidence given by the psychiatrists in their oral evidence and their written reports which I have summarised are valid grounds for granting a decree of nullity sought by each of the parties.
In D. v. C. [1984] I.L.R.M. 173 Costello J. made a significant statement as to the law in relation to nullity of marriage in the following terms:
“The courts have never approached claims for nullity decrees merely by applying principles of contract law or statutory prohibitions, and even when marriages have been entered into with complete freedom untainted with illegality, they may be declared null and void if one of the spouses is impotent at the time of the marriage and unable to consummate it. See McM. v. McM. [1936] I.R. 177. But marriage is by our common law (strengthened and reinforced by our constitutional law) a lifelong union, and it seems to me to be perfectly reasonable that the law should recognise (a) the obvious fact than there is more to marriage then its physical consummation and (b) that the lifelong union which the law enjoins requires for its maintenance the creation of an emotional and psychological relationship between the spouses. The law should have regard to this relationship just as it does to the physical one. It should recognise that there have been important and significant advances in the field of psychiatric medicine since 1870, and that it is now possible to identify psychiatric illnesses such as, for example, manic depressive illness which in some cases may be so severe as to make it impossible for one of the partners to the marriage to enter into and sustain the relationship which should exist between married couples if a lifelong union is to be possible.”

Carroll J. in P.C. (orse O’B.) v. D. O’B. (Unreported, High Court, 2nd October, 1985), and McMahon J. in M. (orse G.) v. M. [1986] I.L.R.M. 515, took a different view from that expressed by Costello J. aforesaid. The question of emotional and psychological inadequacy constituting a ground for nullity was reviewed by Keane J. in U.F. (orse U.C.) v. J.C. [1991] 2 I.R. 330. Keane J. felt unable to adopt the statement of law propounded by Costello J. but expressed the hope, which was fulfilled, that the petitioner would appeal his decision to the Supreme Court and that legal aid would be made available for that purpose. Finlay C.J. quoted the passage which I have cited from the decision of Costello J. and expressed his approval of it. He endorsed the views expressed by the High Court Judges in the following terms at p. 357 of the report:
“I can see no objection to the conclusions of both Barrington J. and Costello J. which find, in relation to the concept of the incapacity of a party to a marriage to form and sustain an appropriate and proper marital relationship, an analogy to the long-established ground of nullity consisting of physical impotence.”
The decision of O’Hanlon J. in P.C. v. V.C. [1990] 2 I.R. 91 was based largely on the line of reasoning enunciated by Barrington J. and Costello J. and was approved by the Supreme Court in U.F. (orse U.C.) v. J.C. [1991] 2 I.R. 330. The decision of O’Hanlon J. is of particular importance as the facts under consideration by him in P.C. v. VC. have much in common with those of the present case. That too was a case in which psychiatric evidence was given, again by Dr. B., to the effect that the marriage was doomed from the outset by reason of the elements of immaturity in the character and temperament of both husband and wife and an inability on both sides to form and maintain a functional viable marriage relationship with each other. In that case petitioner was 31 and the respondent 26 years old when the marriage took place. They both had the same social educational and religious backgrounds. It was clear from the commencement of the courtship that disagreements arose over relatively trivial incidents and then evolved into major confrontations. The engagement was broken off twice and within three months of the wedding the respondent returned to her mother. The immediate reason for so doing was the respondent had become pregnant and ill. It is clear, however, that the respondent had a particular dependence on or attachment to her mother and that this was resented by the

As early as January, 1984, some correspondence took place with regard to the possibility of the parties entering into a separation agreement but in September of that year the parties attended a marriage counselling course and eventually a reconciliation process succeeded to the extent that in June, 1985, the wife returned to the matrimonial home for the first time since her departure in November, 1983. Sexual relations between the husband and wife were briefly resumed and subsequently terminated. From January, 1986, the wife slept in a separate bedroom until she finally quit the matrimonial home in March, 1987.
In those circumstances the same psychiatrist, Dr. B., expressed his conclusion which was summarised by O’Hanlon J. at p. 102 of the report as follows:
“He described the relationship between the parties as a ‘dysfunctional relationship’ in which neither was able to satisfy the emotional needs of the other. While the presence of arguments and conflicts in marriage was not at all abnormal, the ability of the partners to adapt and adjust was an essential factor without which a workable relationship could not be achieved. ‘Here neither showed the ability to adapt. Both adhered rigidly to their own perceived role. P. was blind to what he was doing and couldn’t change it. V. was incapable of changing her role and retreated back to an area of unconditional love and support, inappropriate for an adult’.”
O’Hanlon J. accepted the opinion of Dr. B. and expressed his agreement at p. 104 in the following terms:
“I find myself in agreement with Dr. B.’s basic conclusion that the marriage was doomed from the outset by reason of elements of immaturity in the character and temperament of both husband and wife, and an inability on both sides to form and maintain a functional, viable marriage relationship with each other. There appears to have been a lack of capacity on each side to compromise, to give way, to adjust to the emotional needs of the other partner, and to reach amodus vivendi where a reasonable and tolerable marital relationship could evolve between them.”
The final conclusion of the learned judge was summarised at p. 108 of the report in the following terms:
“With some hesitation I have come to the conclusion that what was involved in the present case went well beyond temperamental incompatibility simpliciter and brought into play, the other, more
profound factors of want of capacity to which I have already referred.
On this basis, I propose to grant the petition and to make a finding that the petitioner and the respondent were unable to enter into and sustain a normal marital relationship with each other by reason of incapacity deriving from lack of emotional maturity, and psychological weakness and disturbance affecting both parties to a greater or lesser degree.”
What these decided cases establish is that a decree of nullity may be granted where by reason of elements of immaturity alone and notwithstanding the absence of any psychiatric disorder the parties to a purported marriage do not have in combination with each other an adequate emotional capacity to sustain a viable marriage relationship. The decision of O’Hanlon J. in P.C. v. V.C. [1990] 2 I.R. 91 is a very helpful and instructive application of that principle but it does seem to me that in the final analysis it is the duty of the judge to determine whether, as a matter of degree, the inadequacy of the emotional relationship was such as to render the purported marriage a nullity. In P.C. v. V.C. the parties shared the matrimonial home for something less than 18 months by comparison to the 18 years in the present case. Again the short relationship between the parties in P.C. v. V.C. was interrupted by constant and dramatic disagreements. Their inability to achieve what O’Hanlon J. described as “a modus vivendi where a reasonable and tolerable marital relationship could evolve between them” is clearly distinguishable from the present case where the courtesy and politeness of each party to the other prevented any obvious unpleasantness by either party to the other and indeed enabled them to maintain all of the outward appearances of a successful marriage in what were particularly difficult conditions.
I am quite sure that even ten years ago no lawyer in Ireland would have suggested that a decree of nullity could be obtained in respect of a marriage which had subsisted for 20 years and within which three children had been born and were still living on the grounds of an inadequate emotional relationship between the parties. It is only in more recent times that the nature and substance of the matrimonial relationship has been more fully explored to establish and identify factors which have been at all times essential ingredients in that very special relationship. As the cases cited indicate much of this analysis has been carried out by psychiatrists, psychologists and social workers. It follows that their evidence is of paramount importance in dealing with cases of this nature. However at the end of the day it seems to me that I cannot abdicate my function to the experts, however distinguished, and even though they are, in the present case, in agreement on the point that the parties to the marriage did not have an adequate emotional capacity to sustain the relationship of marriage. The fact that the marriage at least in its outward form survived for such a lengthy period without apparent discord or obvious mental distress suggests that an adequate if less than satisfactory relationship was achieved. I am also struck by the fact that it appears from the report of Dr. B. that the respondent did achieve emotional maturity eventually though apparently subsequent to the stage at which the marriage had, in his view, irretrievably broken down. Again it seems to me that that evidence makes it clear that the emotional inadequacy of the respondent was not irreversible and to that extent presumably it was possible that their combined problems could have been resolved or ameliorated if during their lives together some event occurred which resulted in one or both of the parties obtaining the requisite advice and assistance at an earlier date.
I have come to the conclusion that the inadequacy of the emotional response of the parties one to the other was not of such a degree as would justify this court in granting a decree of nullity. Like O’Hanlon J. in P.C. v. V.C. [1990] 2 I.R. 91 I reach the conclusion “with some hesitation” having regard to the state of the evidence of fact and the evidence of the experts but if P.C. v. V.C. fell to one side of the line it seems to me that the instant case as a matter of degree falls to the other side.
In my judgment the claim for a decree of nullity of marriage must be refused.

M. (P.) v. R. (T.)

[1998] IEHC 235
Judgment of Mr. Justice Lavan delivered the 18th day of February, 1998.

The Petitioner is a 37 year old farmer living in the County of Mayo.
1. On the 24th day of May, 1992 he went through a ceremony of marriage with the Respondent according to the rights of the Roman Catholic Church at the Irish College in Rome, Italy. At the time of the ceremony of marriage the Petitioner and Respondent were and still are citizens of Ireland. Both were domiciled within the State. Following the marriage the parties lived and co-habited at a number of locations in the west of Ireland. The Petitioner is 37 years, having been born on the 21st October, 1960. There are two children of the marriage, namely, D. who was born on the 12th July, 1992, and C. who was born on the 9th May, 1994.

2. In his petition, the Petitioner claims that neither he nor the Respondent gave a full, free and informed consent to the marriage and further that both parties lacked the capacity to form and sustain a valid functional life-long marital relationship with each other by reason of their respective states of mind, mental conditions, emotional and psychological developments at the date of their purported marriage.

3. In those circumstances, the Petitioner prays for a decree that the marriage between the parties be declared null and void.

4. The Respondent represented herself at the hearing of this case. Her answer to the petition was in the following terms:-

5. In answer to the petition presented to the Central Office on December 14th, 1995 the Petitioner stated that he lacked the capacity to form and sustain a valid functional life-long marital relationship by reason of his state of mind, mental conditions, emotional and psychological developments at the date of the purported marriage. Having suffered great physical, emotional and psychological abuse from the Petitioner both during and after my marriage, I can say that from my knowledge of the Petitioner I give answer and say that I am in agreement with this Statement.

6. The Petitioner presumably had suffered from a psychiatric disorder which has impaired his ability to form and sustain a normal viable marriage and has a standard of proof documenting evidence to support this Statement from expert opinion. I have failed for my part to determine the nature of this psychiatric disorder by requesting particulars on four separate occasions which were refused to me and therefore my answer to the Courts has to remain a personal opinion.

7. For my part I have spoken and written to all doctors and other professional sources both current and those I have known since I was born and have been unable to obtain any contrary opinion in regard to my health, mental or physical, other than that, in their opinion I have and always had sound mental and physical health. I have omitted seeking an opinion from Mr. E. M., Psychologist who supported and encouraged me to leave my husband during my second pregnancy and whom I considered to have acted unprofessionally

in supporting my husband after I left the marriage which I conveyed by making a complaint in 1995 to the Society of which he is a member.
8. In answer to the Petitioner I say that I am in disagreement with all the other petitions made by the Petitioner in his petition presented to the Central Office on the 14th December, 1995.

9. This answer was dated the 28th November, 1997 and signed by the Respondent.

10. The essential feature of this case is whether the failure of one spouse to declare their correct age to the other can be said to vitiate the consent given by that other.

11. As to the evidence:

12. I first heard from the Petitioner’s mother who was called to set a basis for inviting the Court to consider that the Petitioner had a special relationship with a foster brother whilst he was young. This foster brother died tragically seventeen years ago. This witness gave evidence of the family background and of the Petitioner’s friendship with one J.C. who was a neighbour’s child. There was a fourteen year difference in age between the parties. The witness was highly critical of the Respondent and made it perfectly clear in the witness box that she did not like the Respondent. The first the mother heard about the proposed wedding was shortly before the parties left for Rome.

13. The Petitioner himself gave evidence. He is now 37 years of age. At school he had a stammer due to the unkindness of his teacher for a period of three years.

14. He always worked on the farm as a schoolboy and at 19 years of age he took full control of same and it is fair to say that he developed it in a very progressive form and now farms extensively. He ceased going out with J.C. in July 1991. She had lived with her mother and marriage would have meant that the Respondent would have had to move in with both.

15. On the 3rd March, 1991 he met the Respondent in a night-club. She was domineering to him and he admired this quality very much in her. He found her very courageous. He met her again two weeks later. She was living in Dublin, he remained on the farm. They met fortnightly until July of 1991 when she began to travel down from Dublin and would spend two nights at the weekend with him. The relationship developed quickly and about that time it became intimate. Both parties visited the Respondent’s family in the South.

16. He stated that from Christmas 1991 the Respondent was pressuring him into marriage. At that time he decided to finish his relationship with the Respondent but she then told him that she was pregnant.

17. The intent of the Petitioner’s evidence up to the date of marriage was that the Respondent was the driving force. I have major reservations as to this being the case. In any event, the appropriate letters of freedom were obtained from the respective parish priest on the 11th May, 1992. He understood that the Respondent had bought the rings for the marriage and had arranged that the wedding would take place in Rome.

18. The Petitioner led me to believe that he knew very little about the arrangements for the marriage, that it was to take place in Italy which I found somewhat suspect, having regard to his age (he was then 31 years of age) and having regard to the fact that he played rugby at weekends and was an experienced man of the world. In any event, the parties flew out to Rome on or about the 22nd May, 1992. The marriage was to take place in the Irish College. The celebrant was Fr. B. McC. The ceremony took place at 5.00 p.m. and there were five couples. Afterwards the parties repaired for refreshments in the course of which the celebrant required the parties to sign the appropriate marriage register.

19. In the course of signing the register the Petitioner discovered that the Respondent was 36 years of age. The best that can be said for the Petitioner’s state of knowledge up to this time was that he may have believed her to be younger than him but I am satisfied as a fact that this position was never adopted by the Respondent. Nor was it, in fact, of concern prior to that time. There is no doubt that the Petitioner reacted when he discovered his spouse’s real age.

20. When the parties left the Irish College, the Petitioner was greatly upset. The parties discussed the issue that Monday evening and during the early hours of Tuesday morning. The Respondent had suggested to the Petitioner that he should not consummate the marriage if he had any reservations about proceeding with the ceremony. The Respondent then telephoned the Irish College, spoke with Fr. McC. who arranged to see both parties on the Tuesday morning. The priest saw each party for one hour and both of them for a third hour. He fully explained the implications of marriage and what it entailed. He was Director of Formation at the Irish College at the time. He gave evidence in this case. I accept his evidence in full. I accept that the Petitioner was fully advised in relation to his position at that time, that is to say, before he consummated the marriage. The priest explained the procedure available for nullifying the marriage without consummation and made clear to the Petitioner that he had a free choice in the matter.

21. I accept that following this discussion both parties repaired to the grounds of the college, discussed the matter and agreed to proceed to consummate the marriage.

22. I am satisfied on the evidence that I have heard that the Respondent did not pressurise the Petitioner at any time during these days. On the contrary, I am satisfied that at all times she urged caution.

23. Having spent Tuesday in the company of the priest aforesaid and having further discussed the matter, the parties decided to consummate the marriage. The Respondent was pregnant at this time and the first of their two children was then born on the 12th July, 1992.

24. The evidence in relation to the post-marriage ceremony is an unhappy one and the parties cohabited for some two years and ten months and have lived separate and apart since then.

25. Having heard from Fr. B. McC., I also heard from the Petitioner’s brother and from Dr. Art O’Connor. Dr. O’Connor saw both parties and prepared a report on each party.

26. In relation to the Petitioner he concludes that it seems probable that (the Respondent) was such that she was unable to enter this relationship and the pregnancy must have complicated things. She denies an alcohol problem which he feels was an issue. It seems that the relationship never got started and both parties were totally incompatible because of personality difficulties. It is very clear from both of their accounts that Mr. M. did not want to marry and he felt unable to withstand pressure from various sources.

27. In relation to the report on the Petitioner, his account is of the Respondent being deceitful. The report concludes that from the Petitioner’s account it seems likely that the marriage was doomed from the beginning. Throughout the marriage there was no real relationship and neither party seems to have entered the marriage properly. He seems to have been quite immature in his thinking and he was pressurised into making a decision he did not want to make by the pregnancy, the force of her personality and his pre-occupation about his foster brother’s early life. From his account she seems to have forced the situation and almost bullied him into marrying her. She seems to have had serious defects in her personality and has been quite manipulative and also deceitful.

28. The Respondent gave evidence herself. I accept her evidence in full. Her mother and father also gave evidence and I accept them as honest and truthful in their accounts.

29. From the evidence given in Court I do not accept Dr. O’Connor’s conclusions. What the Consultant appears to have done has been to accept one party’s version of events and form an opinion on foot of same.

30. I am satisfied that the Petitioner failed to give an accurate account of the pre-marriage history, failed to disclose his attendance at a pre-marriage guidance course, failed until the end of the case to indicate that he had the documents belonging to the Respondent from that course which he had furnished to his Solicitors and then purported to say that he did not know where his papers were from that course. I do not accept his explanation as to his being in ignorance of the marriage plans. He failed to tell me about visiting the Respondent’s parents and she receiving her dowry of £6,000.00. I found that he was generally an unreliable witness.

31. From the Respondent’s evidence I am satisfied that the parties had a strong relationship from the time they first met and he proposed to her in October of 1991.

32. Contrary to Dr. O’Connor’s view, I do not see the Respondent as being in any way deceitful, manipulative or having any defects whatsoever in her personality. I found her to be a warm, sensitive intelligent person. As to the intent of her answer, I accept her explanation as given to Counsel for the Applicant. She comes from a caring professional family from the South. Both parents were exemplary witnesses. Nor do I accept that the Respondent bullied the Petitioner into marriage. Finally, I heard from Ms. J.C. who was a compelling witness and whose evidence I accept in full.

33. The onus of establishing lack of consent lies upon the Petitioner. He and his mother lacked a certain candour in their evidence and his evidence was misleading in my view as to the reality of the relationship from October 1991 when the parties got engaged to the date of the marriage and thereafter.

34. At the date of marriage he was 31 and the Respondent was 36. I accept that great reliance was placed on his relationship with his foster brother but do not accept that this in any way compelled him to proceed with the marriage.

35. Counsel for the Petitioner relied upon the decisions of N. (Otherwise K.) -v- K ., [1985] IR 733 at 742. On M.O’M. (Otherwise O’C.) -v- B.O’C. , [1996] 1 IR 208. A.C. -v- P.J. , (unreported 23rd February, 1995), D.B. -v- O.R. , [1991] ILRM 160 and M.K. -v- F. McC. , [1982] 1 ILRM.

36. Having carefully considered the authorities, I am satisfied that the Petitioner has not carried the burden of proof of showing that there was an absence of consent. On the facts as found by me, I am satisfied the consent was full, free and informed.

37. Likewise, in relation to the grounds of inability to enter into and sustain a normal marital relationship due to immaturity, I am satisfied that both of these people were mature at the time the ceremony of marriage took place. The Petitioner was a 31 year old successful farmer, playing rugby for a club, very much a man of the world and I am unable to conclude that he suffered from any disability on the date of the marriage. Likewise, in relation to the Respondent. In the circumstances I refuse the decree of nullity.

SIGNED: _______________
VIVIAN LAVAN

Dated the 18th day of February, 1998.

K. (D.) v. H. (T.)

[1998] IEHC 34

(25th February, 1998)

JUDGMENT of Mr. Justice O’Higgins delivered the 25th day of February 1998.

1. The Petitioner and the Respondent went through a marriage ceremony in Dublin on the 10th August, 1990 according to the rites of the Roman Catholic Church.

2. The Petitioner seeks a decree that the said marriage ceremony was null and void and of no legal effect. by Order of the Master the issues to be tried were settled as set out in that Order. At the hearing the Petitioner has abandoned grounds 1 and 2 as set out in that Order and relies on the following grounds which were the issues set out at 3 and 4 of the Order as follows:

3. Whether at the date of the purported marriage ceremony the Petitioner had the capacity to enter into a normal functional lifelong marriage with the Respondent due to his state of mind and mental condition, emotional development and personality?
4. Whether at the date of purported marriage ceremony the Respondent had the capacity to enter into a normal functional lifelong marriage with the Petitioner due to her state of mind, mental conditions, emotional development and personality?

3. In addition I gave leave for an extra issue to be tried, namely, as to whether the Petitioner and the Respondent lacked the capacity to enter and sustain a normal lifelong functional relationship with each other by reason of their respective states of mind, mental condition, emotional development and personality.

4. The following facts have been proved or admitted in evidence:

(A) There is no collusion between the parties and the court is satisfied that this is a bona fide application.
(B) The Petitioner was born on the 3rd May, 1968.
(C) When he was about twelve years old the Petitioner was sexually abused by a priest over a protracted period of time.
(D) The Petitioner’s father to whom he was very attached died when the Petitioner was fourteen years old
(E) The Petitioner’s mother remarried about a year later.
(F) There was considerable friction between the Petitioner and his stepfather and the Petitioner left home when he was about eighteen due to the disharmony at home.

5. The Petitioner, as a teenager, was given to sniffing gas lighter fuel, petrol fumes, Tippex and glue and he later abandoned these substances but used cannabis.

6. The Petitioner met the Respondent who was then aged fourteen while she was still at school. They formed a relationship and lived first with the Respondent’s mother and then in a flat in Ballymun. The couple then went to London where the Respondent became pregnant. The parties then returned to Ireland. The first child ‘CK’ was born on

8th February, 1989 and a second child ‘GK’ was born on the 29th December, 1989.
7. In or around that time the Petitioner became interested in the Jehovah’s Witnesses and wished to become a member. He was told that to comply with the rules of the Jehovah’s Witness it was not permissible to live with the Respondent in an unmarried state and that he should either marry or abandon the relationship.

8. The Petitioner had considerable doubts about going ahead with the marriage and was very confused and unsure. He was as he described it “mentally all over the place”. He wanted to please everybody.

9. In July 1991 the Petitioner was baptised into the Jehovah’s Witnesses. The Respondent was not happy with this situation. Neither was she happy that he was no longer prepared to sign on for Social Welfare at a time when he was working. Things went “drastically downhill”. The Petitioner was asked to leave home six months into the marriage and he left for some time to stay with his sister. He later returned. On his return things were very violent and the Petitioner claims he was assaulted on a number occasions.

10. Dr. Art O’Connor, the psychiatrist, gave evidence that, because of the following factors, namely

(a) child sexual abuse by a person in authority,
(b) the death of his father,
(c) the remarriage of his mother,
(d) the domestic disharmony between the Petitioner and his stepfather, and
(e) the damage done by drug taking and their combined effect on his pychological and emotional status,
the Petitioner was unable to understand the nature and consequence of a long term marriage relationship and had not got the capacity to enter into such a relationship at the relevant date.
11. I have been referred to the following cases D. -v- C . 1984 ILRM; B. -v- N. judgment of Barrington J. 27th March, 1987; P.C. -v- V.C. 1992 Irish Reports and F. -v- C. 1991 ILRM. It appears from those cases that there can be psychological and emotional factors which so effect a person as to make that person incapable of entering into a valid marriage. In the present case because of the cumulative effect of the factors outlined by Dr. Art O’Connor the psychiatrist and mentioned in evidence by the Petitioner himself I have no doubt that he was in such an emotional and psychological state as to be quite incapable of entering into a marriage relationship. Having answered question 3 as I have, it is not necessary to answer the other questions.

12. I wish to add the following. There was evidence of opinion given by the psychiatrist as to the psychological and emotional state of the Respondent and of her capacity to enter a valid marital relationship. This evidence was based on an interview with the Petitioner only, as the psychiatrist did not have an opportunity to examine the Respondent. In general, expert opinion based on information supplied by the Petitioner only, and without examination of the Respondent, is of limited value only, and is far less satisfactory than opinion given following examination of the party concerned. In so saying, I intend no criticism whatsoever of the distinguished psychiatrist in the present case.

D.McC. v. E.C.

High Court, July 6, 1998,

JUDGMENT of Mr Justice McCracken delivered the 6th day of July 1998.
1. This is an appeal from a decision of His Honour Judge Harvey Kenny given at Castlebar on 6th November, 1997, whereby he dismissed the Applicant’s claim for a decree of nullity. I had the benefit of hearing considerably more evidence than was before the Circuit Court, and in particular I heard psychiatric evidence from two expert witnesses.

2. The Applicant and the Respondent went through a ceremony of marriage on 11th February, 1994 and lived together until December 1994, when the Applicant left home. The Applicant claims that, at the time of the marriage, neither he nor the Respondent gave their full free and informed consent to the marriage, and further at the date of the marriage each of them lacked the capacity to enter into and sustain a normal marital relationship with the other. At the time of the marriage both parties were in their late twenties, and they each had a child from earlier relationships.

3. The Applicant was born in a country town in Northern Ireland and was the eldest of four children. From the age of six until he was about fourteen years of age he suffered serious sexual abuse and some physical abuse on a regular basis by his father. His mother, who gave evidence before me, claims that she was unaware of the sexual abuse of the Applicant, but she herself suffered regular physical abuse from the Applicant’s father, and finally left home with the three younger children when the Applicant was fifteen years of age. The Applicant remained with his father, as he was at that time about to sit his O levels in school and his mother did not want to disrupt his education. By this time, the sexual abuse had stopped, but the Applicant had got into the company of teenagers who drank regularly in a local park. He did badly in his O levels and left school shortly afterwards and when he was seventeen he left home and went to live with his girlfriend. By this time he was drinking heavily.

4. His relationship with his girlfriend lasted on and off until January 1993, and there was a child of the relationship born in 1988. This appears to have been a somewhat erratic and rather stormy relationship with the parties separating and coming together again on a number of occasions.

5. The Applicant’s relationship with his father was a strange one. Despite the sexual abuse which he had suffered as a child, the Applicant stayed with his father until he was seventeen, and even after he left, he continued to have contact with his father, and in fact played in a band with his father for some time. He had little or no contact with his mother for some years after she left.

6. In 1990 the Applicant spent some time in a psychiatric hospital in Northern Ireland being treated for his alcoholism, but started drinking again a few months after leaving hospital. By early 1992 he was drinking very heavily, had lost his job and was suffering from depression and felt suicidal. He was persuaded to attend Alcoholics Anonymous and with their help he stopped drinking at the end of May 1992, and has kept off alcohol since that time.

7. The Respondent did not have the same unhappy family situation as a child, but in her early teens she also began drinking, and quickly became an alcoholic. By the age of seventeen she had a serious alcohol problem, and was admitted to hospital. At nineteen years of age she was also introduced to Alcoholics Anonymous, and stopped drinking. She had a child when she was twenty-two, but managed to remain alcohol free until after her relationship with the Applicant ended.

8. Both the Applicant and the Respondent continued to attend Alcoholics Anonymous regularly, and in January 1993 they met at a weekend Convention of that organisation. They appear to have been immediately attracted to each other, and after the Convention kept in touch by telephone and correspondence, although he was living in Northern Ireland and she was living in the West of Ireland at this time. About this time, and probably as a result of meeting the Respondent, the Applicant finally broke off his relationship with his partner in Northern Ireland. In February 1993 he came to visit the Respondent at her home. He claims that during that visit, which was only the second time they had ever met, the Respondent proposed to him. She denies this, but I have no doubt that marriage was in both of their minds at a very early stage. Several other weekend visits took place, and at the end of March 1993 they became formally engaged to be married. The Applicant was working in Northern Ireland at this stage, but in June 1993 he left Northern Ireland and he came to live with the Respondent in her house. In September of that year he got a job nearby, and he also began to perform music in pubs in the area in the evenings.

9. The couple ultimately went through a marriage ceremony on 11th February, 1994. It appears to have been a large wedding, which was paid for by the Respondent’s mother and brother. After the wedding, the relationship deteriorated fairly quickly and there were several violent incidents. The Applicant also left the home on several occasions, although he always returned.

10. In September 1994, a further tragic incident took place. The Applicant’s former girlfriend, with whom his child was living in Northern Ireland, died tragically in a fire at her home. After this the relationship between the Applicant and the Respondent deteriorated rapidly, and the Applicant finally left home in early December. In all, the marriage lasted for just over nine months.

11. In evidence, the Respondent has said that at the time of the marriage the Applicant was very well, and has also said that the Applicant did not strike her as being a vulnerable person. However, he did talk frequently of the inner baggage which he carried, and had a lot of books on healing the inner person and relating to abused children. The Respondent blames the marriage breakdown largely on infidelity on the part of the Applicant, and also on disputes about money.

12. Having heard both parties giving evidence, I have no doubt that the Applicant is, and probably always was, a very vulnerable person. He impressed me as being very insecure and the type of person that would always seek somebody else to act as a crutch. Evidence was also given by a Consultant Psychiatrist who stated that he presented as being immature, naive and showing poor judgment in relation to social and interpersonal situations, and further said that “he exhibited psychological vulnerability and dysfunction which can be understood in the light of his childhood and adolescent experiences of both physical and sexual abuse”.

13. Evidence was also given by a Consultant Psychiatrist on behalf of the Respondent who had seen the Respondent, and was of the view that, as at the time of the marriage she had been sober for ten years, she was perfectly capable of understanding the commitment necessary for a successful marriage, and that there were no psychiatric impediments to her marriage. I accept his evidence, and insofar as the Respondent is concerned, although she reverted to alcohol for a time after the separation, I think that she was fully able to sustain a marital relationship. She now appears, perhaps understandably, to be rather bitter and convinced of the Applicant’s infidelity during the marriage. I do feel, however, that she has little insight into the problems of the Applicant.

14. The law as to circumstances giving rise to nullity has developed considerably over recent years. In DC -v- DW (1987) ILRM 58 it was held by Blayney J. in a case where the petitioner was at the date of the marriage suffering from a psychotic illness and was unable to enter into and sustain a normal marriage relationship, nevertheless the petitioner could not rely on that ground as avoiding the marriage unless she could establish that the respondent had previously repudiated the marriage. This was following a line of earlier authorities, most of which related to applications for nullity based on the impotence of the petitioner. In the present case the marriage has certainly not be repudiated by the Respondent.

15. The requirement for repudiation in cases such as the present one now appears to have been rejected by the Supreme Court. In PC -v- VC (1990) 2 IR 91 at page 107, the Chief Justice said:-

“In the present case while I have come to the conclusion that there were elements of emotional immaturity and psychological disorder on both sides which prevented the formation of a normal, viable relationship with each other, I would consider that these features and traits of character were much more marked in the case of the husband than in the case of the wife. As there has been no repudiation of the marriage contract on her part at any stage but rather the strongest possible affirmation of it, can the husband rely on what is in large measure his own want of capacity?

In my opinion, he can, primarily because of the fact that the want of capacity existed to some extent on both sides, as it did in BD -v- MC . If necessary, however, I would also incline to the view that as both parties entered into the marriage contract innocently, in the sense that they were unaware that by reason of factors connected with the personality and psychology of each partner, it would be impossible for them to sustain a normal marital relationship for any length of time, the petitioner should not be denied a decree of nullity because the respondent wishes to hold him to the marriage bond”.

16. In my view this is the correct approach. The earlier attitude was based on the premise that marriage is a contract, which it undoubtedly is, and that it should be treated in the same way as every other contract. However, marriage is a very specific and unusual form of contract which involves complex human relationships. The concept of nullity as it has been developed by the Courts is not a concept known to the ordinary law of contract. If a person enters into a contract, which the party is unable to perform, there may still be a valid contract, and the other party may recover damages for breach of that contract. However, the whole principle of nullity is based on the fact that there may be circumstances in which, although the contract was formally entered into, it was in fact totally void solely because one party was unable to perform the contract at the time it was entered into. It is the whole essence of nullity that there never was a contract of marriage, the parties never were married, and no obligations arise on either side. It is not a question of a breach of the contract of marriage, but of its existence, which is why the person whose marriage has been declared a nullity is free to re-marry.

17. In the present case I am quite satisfied that the Applicant was extremely immature when it came to entering into close emotional relationships with other people. He had had an appalling childhood, the memory of which he sought to lessen by the use of alcohol. Unfortunately that use became an abuse and he became an alcoholic. It is indeed accepted by the Respondent and by the Psychiatrist that an alcoholic ought not to make serious decisions or commitments for the first year or two after he stops drinking. This is a rule of thumb which is applied to alcoholics who may have no problems other than their addiction, but the Applicant in this case had the combination of his addiction and his childhood abuse to cope with. He in fact got engaged within a year of having stopped drinking, and got married within two years. He had come from a very volatile and insecure relationship with another girl over a period of years during which, despite their having had a child, he was clearly not able to enjoy the type of relationship which marriage requires. Indeed, he had never known or been in a home with a proper marriage relationship at all, as his father had sexually abused him and physically abused his mother for years. I am satisfied that he did not fully understand the nature of a proper marriage, and certainly was incapable of entering into or sustaining a normal marital relationship with the Respondent. Accordingly, I will grant a decree that the marriage entered into between the Applicant and the Respondent is null and void.

F. (G.) v. B. (J.)

[2000] IEHC 112
JUDGMENT of Mr. Justice Murphy delivered on the 28th day of March, 2000

1. On the 9th July, 1988 the marriage of the Petitioner and the Respondent herein was solominsed as Christ Church in the District of Dun Laoghaire in the County of Dublin under the authority of a special licence granted by his Grace the Lord Archbishop of Dublin DD pursuant to the Marriages (Ireland) Act, 1844.

2. By petition dated the 23rd May, 1997 the Petitioner stated, inter alia, that his consent to the marriage ceremony was not a full, free and/or informed consent; further, or in the alternative, prior to and at the date of the marriage ceremony, by reason of his emotional immaturity, mental state, personality, temperament and/or nature, the Petitioner had not the capacity to enter into or sustain a normal marital relationship with the Respondent.

3. There is one child to the marriage who was born on the 30th December, 1988. The Petitioner and the Respondent separated in or around 1993 and have not resided or cohabited together since that date. By Order of the Master of the High Court made the 25th February, 1998 the issues to be determined were listed and it was ordered that Dr. Gerry Byrne, Psychiatrist, be appointed to carry out a psychiatric rather than a physical examination of the Petitioner and also of the Respondent and to report in writing to the Court.

4. The net issues that come before the Court with consent of the parties are the following:-

1. Whether the Petitioner gave full, free and/or informed consent to the marriage ceremony with the Respondent;
2. Whether prior to and at the date of the marriage ceremony the Petitioner by reason of using (sic) emotional immaturity mental state, personality, temperament and/or nature had the capacity to enter into or sustain a normal marital relationship with the Respondent.
3. Whether the Petitioner was incapable of consenting to the marriage ceremony

5. By answer dated the 2nd March, 1998 the Respondent denies, inter alia, that the consent of the Petitioner to the marriage ceremony was not a full, free and/or informed consent;

6. The Respondent denies and awaits proof that prior to and of the date of the marriage ceremony, the Petitioner by reason of his emotional immaturity, mental state, personality, temperament and/or nature, had not the capacity to enter into and sustain a normal marital relationship with the Respondent whether for the reasons set out in the Petition or otherwise and the Respondent further denies that the said marriage ceremony was null and void and of no affect on that basis.

7. Both the Petitioner and the Respondent say that there has been no connivance or conclusion between them in any way whatsoever.

 

EVIDENCE
8. A preliminary issue arose regarding the presence of the medical examiner, Dr. Gerard Byrne while evidence was to be given by Dr. Brian O’Shea, Consultant Psychiatrist, in relation to his treatment of his Petitioner and of the Respondent. A further issue arose as to whether Dr. O’Shea’s evidence should be taken before that of the Petitioner.

9. I directed that, as Dr. Byrne had been appointed as Medical Inspector he was entitled to be present during the evidence given by Dr. O’Shea. I also directed that it was a matter for Counsel for the Petitioner to decide as to the order of witnesses (so long as the witness confined himself to facts rather than opinions which were not adduced in evidence.)

10. Counsel for the Respondent objected to evidence being given in relation to her client. I directed that, as Dr. O’Shea had been subpoenaed he could be required to give evidence in relation to the Respondent as well as to the Petitioner.

11. In any event the issues were narrowed to those referred to above on the second day of hearing and Dr. O’Shea did not give any evidence in relation to the treatment of the Respondent.

12. Dr. O’Shea first saw the Petitioner on the 4th July, 1986 when he presented with panic attacks in work. He came along with his mother.

13. He was then unemployed having been through five previous jobs and felt that he had wasted his life.

14. Dr. O’Shea believed that he suffered from depersonalisation and was like an antelope incapable of responding to the presence of a lion. In relationships he was possessive, with a high need to be appreciated and with the significant separation anxiety problem he required constant availability.

15. His negative feelings about himself were substantiated by observation of Dr. O’Shea.

16. He was seen by Dr. Timms, Dr. Matthews and Dr. Stokes who were part of Dr. O’Shea’s team and he agreed with her diagnosis of personality disorder and that the Petitioner was compulsively obsessive.

17. Pharmacological interventions such as antidepressants and benzodiaspines made little difference and he had a poor tolerance to Prozac.

18. The Petitioner attended Dr. O’Shea on the 16th October, 1988, three months after his marriage; he attended twice in 1989 and his last visit was on the 21st September, 1993. In 1995 there were three telephone conversations between the Petitioner and Dr. O’Shea.

19. In relation to this marriage he told Dr. O’Shea that he was being sucked into a situation that he couldn’t handle and that his wife knocked the confidence out of him and that there were fighting all the time. As time went on this was affecting their daughter.

20. In relation to his work he told Dr. O’Shea that his boss did not want him.

21. Dr. O’Shea believed that the basic problem with the Petitioner was that;

22. He was a very insecure person;

23. He suffered from anxiety and depression;

24. He had an obsessive personality disorder;

25. He suffered from separation anxiety.

26. Dr. O’Shea believed that such problems normally resolved themselves at adolescence but did not happen in the case of the Petitioner.

27. There was a disparity between the emotional development and the logical development. The Petitioner was not capable of viewing his life partner as a separate individual. There was no mutuality in the relationship. While the Petitioner had an intellectual insight into this condition he did not have control over his emotions. He was drawn by an immature set of emotions.

28. In relation to the Petitioners ability to sustain marriage, Dr. O’Shea believed that it would be extremely difficult. Problems such as those referred to above tend to erode whatever relationship there is. It would need a “perfect” partner, a mother figure who was constantly available.

29. The general impression of Dr. O’Shea is given in his report to the medical inspector as follows:-

“This very immature man suffers from a personality disorder with low self esteem, obsesionality, fantasies of being very important (by way of over compensation), with periods of anxiety and a “reactive” depression. He probably also has separation anxiety disorders. His occupational history has been rather chaotic.

I do not believe that he was capable of emotionally viewing a potential life partner as a separate individual, and as such was not capable of entering into a valid matrimonial contract.”

THE PETITIONER’S EVIDENCE
30. The Petitioner is now thirty five years of age. He feels he was denigrated by his father and developed a strong bond with his mother.

31. In relation to school he was average, drifting along and missed school staying at home when he was not feeling well.

32. At mid teens he says that the began “drinking to be drunk”. He passed the leaving certificate and without focus or without a plan, worked in shops from time to time he dispersed with unemployment.

33. When he was twenty or twenty one he went out with a student but felt uneasy with her friends and possessive of her.

34. A year later the student told him that he was pregnant and was having an abortion. This created a moral problem for him. He was distressed. His anxiety intensified. He had panic attacks. At one stage he got off the bus and felt like a rabbit caught in its headlights. He told his parents. His mother was distressed, his father seemed indifferent.

35. He agreed with Dr. O’Shea’s evidence regarded the personlisation. His feelings seemed to wash over him: he cried a lot. He drank until he was drunk, gave up work felt a bleak depression and believed he was going mad.

36. His eldest sister advised him to go to his general practitioner who referred him to Dr. O’Shea as an outpatient. He stayed at home between visits to the GP and to Dr. O’Shea. It was a long nightmare with regular crisis points weekly. He became obsessed with his depression and withdrew completely. It was a dark period.

37. By late 1987 he began work as a Salesman but was still deeply involved with his illness. He moved from home with a friend of his and met the Respondent who was living close by.

38. Within a few weeks the Respondent told him that she was pregnant. He reacted with great concern. It was a repeat disaster for him he was concerned for his mother. He was concerned for his new girlfriend. He was determined not to disturb his mother. He would have done anything to avoid that. Yet he had no long term plans.

39. He decided to tell his parents first that they were getting married and then that she was pregnant so as to bring a solution to the problem. His mother accepted that he says his father took a sneering attitude and remained distant.

40. The wedding was organised by his girlfriend’s father. He was still focused on panic attacks and depression. He had no sense of his own worth. He was detached from his wedding. He was in contact with Dr. O’Shea six times between the wedding and the birth of their baby daughter in December 1998.

41. This was the one thing that they had in common. Otherwise they almost lived separate lives.

42. The Respondent became aggressive towards him and he believed that she was absolutely not supportive of his situation. It made things ten times worse. His life was miserable. He moved continuously down to his family sometimes with his daughter.

43. In relation to work he believed he got on well with his employers in the short term but not in the long term.

44. In 1994 matters came to a head and spiralled out of control. Their daughter was deeply embroiled in the mess. He left his job.

45. He said the Respondent sought medical advice and was hospitalised for a few weeks. However this did not solve the difficulties. At Christmas of 1994 he left the family home.

46. Both the Petitioner and the Respondent are at the date of hearing in new relationships. The Petitioner has a child of his new relationship.

47. In relation to his understanding of marriage at age twenty three, the Petitioner gave evidence that he was obsessed with the idea of not walking away. He felt he was the cause of his mother’s changed behaviour.

48. He now believed his life had changed. He was improved, stronger, more self aware. Nonetheless he would not disagree with Dr. O’Shea’s evidence with regard to his prognosis.

 

MEDICAL INSPECTOR’S EVIDENCE
49. Dr. Gerard Byrne agreed with Dr. O’Shea’s evidence. He had heard the Petitioner’s evidence.

50. Dr. Byrne believed that the diagnosis gravely affected the Petitioner’s consent. The personality and psychiatric illness of a personality disorder coincided with his own view. He concurred with Dr. O’Shea’s diagnosis. The Petitioner was immature. He would go further and say that the immaturity was grose and not just abnormal immaturity.

51. Dr. Byrne believed that the Petitioner’s decision to marry depended on his attitude to his parents and not to his own need. His decisions were made on a more proximate need and not on any long term basis. The Petitioner’s difficulty with his exams and his not being able to hold down jobs was caused by a personality disorder, depression, anxiety and panic attacks.

52. The medical examiner believed that the Respondent was not supportive. As he perceived it the relationship was doomed. The Petitioner would have to find a particular foil: “a perfect person”. That person would have to calm, materialistic. As he perceived it this was not the relationship that he had formed it was not conducive to his being able to cope.

53. Dr. Byrne believed that the Petitioner’s parents did not force him into marriage. However the Petitioners inordinate need to please led to his decision to get married. He was immature and not able to consent.

54. No evidence was given by the Respondent nor on her behalf.

SUBMISSION OF COUNSEL
55. Counsel for the Respondent, Ms. Ann Dunne S.C., stated in relation to the Answer filed the 2nd March, 1998 that such answer was intended to take issue with allegations made in relation to the Respondents’ state of mind. Since the answer was filed, the Respondent had the evidence of the medical inspector in relation to the Petitioner’s state of mind. No issue was being taken in relation to that evidence. Counsel declined to cross examine.

56. Ms. Inge Clissman S.C., for the Petitioner, submitted, as a preliminary point, that the Court had enough evidence to ground the petition on the basis of the Petitioner’s emotional immaturity, mental state, personality, in that he had not the capacity to enter into or sustain a normal marital relationship with the Respondent.

AUTHORITIES
57. Ms Clissman S.C. relied on the following authorities:

1. RSJ -v- JSJ [Unreported decision of Barrington J. 1982];
2. D -v- C [Unreported decision of Costello J. 1984];
3. N(K) -v- K [1986] IR737;
4. GM(G) -v- TG [Unreported decision of Lavan J., 22nd November, 1991];
5. UF(C) -v- C [1991] 2 IR 330 19 (1991) IRLM 65;
6. KWT -v- DAT [1992] 2 IR 11;
7. PK -v- MBM [Unreported Supreme Court decision of the 3rd April, 1995];
8. MON -v- OC [1996] 1 IR 208 at 216/7;
9. JS -v- CS [1997] 2 IR 506.

CONCLUSIONS
58. The issue before the Court is whether the contract of marriage entered into between the parties is voidable by reason of the inability of the Petitioner to enter into or sustain a normal marriage relationship.

59. This ground for nullity, first noted in the Attorney General’s Office Report entitled “The Law of Nullity in Ireland” in 1996 was accepted in 1982 by Barrington J. in RSJ -v- JSJ referred to above.

60. The leading case in relation to the matter is D -v- C, a judgment by Costello J. (unreported 1984) in which the trial Judge found that the law should have regard to the psychological relationship just as it does to the physical one. In that case it was found that the husband at the time of marriage suffering from a “cyclical manic depressive disorder…(whcih) affected personality and behaviour. (It was) significantly severe as to impair his consent to form and sustain a normal viable marriage relationship ”.

In JS -v- CS [1997] 2IR 506, Budd J. referred to the above cases and stated that the fundamental principal was, and continues to be, that the enquiry as to the validity of a marriage was more inquisitorial and less adversarial a nature than the usual case. The Court concluded that the spouse became an emotional disability or incapacity or an inherent quality or characteristic at the time was marriage was unable to enter into and sustain a normal marital relationship.
61. Budd J. referred to the difficulty a Court has in moving from the cold objectivity of ascertainable clinical findings to the elusive and impalpable area of the emotions. An illness that is preventing a spouse from “entering into a caring or even considerate relationship” (per Barrington J.) or sustaining the normal interpersonal relationship which marriage requires (per Costello J.) depends on the objective findings of the medical examiner and not on the subjective perception of the Petitioner.

62. This is not to say that the paramount importance of the evidence of the medical inspector is decisive. The role of the Court, as asserted by Murphy J. in KWT -v- DAT [1992] 2IR 11 at pg. 21 is instructive;

“…. At the end of the day it seems to me that I cannot abdicate my function to the experts, however distinguished, and even though they are, in the present case, in agreement on the point that the parties to marriage did not have an adequate emotional capacity to sustain the relationship of marriage.”
63. The only evidence before the Court relating to the validity of this marriage is the certificate of a solemnised marriage duly witnesses and recorded.

64. The evidence of Dr. O’Shea and of Dr. Byrne, the medical inspector appointed by the Court, is that the Petitioner did not have an adequate emotional capacity to enter into or sustain a normal marital relationship with the Respondent.

65. It would appear also that because of that the Petitioner was not fully free in his mind or fully informed to consent to the marriage ceremony with the Respondent.

66. Accordingly the Court decrees that the ceremony of marriage celebrated on the 9th July, 1988 between the Petitioner and the Respondent is null and void and that the said Petitioner is free of all bonds of marriage with the said Respondent.

67. I will hear the parties regarding the costs of and incidental to this petition.

 

McC. v. Murphy

[2001] IESC 30
JUDGMENT delivered the 23rd day of March 2001 by Keane C.J. [nem diss.]

1. This is an appeal from a refusal by the High Court (O’Neill J.) to give leave to the applicant to apply by way of judicial review for inter alia an order of certiorari quashing an order of the respondent refusing an application by the applicant for a review of periodic maintenance payments payable by the applicant under an order of the Circuit Court dated the 29th June 1998 granting a divorce decree in respect of the marriage between the applicant and D.J.

2. The applicant made a preliminary application to this court that the hearing of the appeal should be in public. While he accepted that under

s. 38(5) of the Family Law (Divorce) Act, 1996, (hereafter “the 1996 Act” ) proceedings under the Act are to be heard otherwise than in public, he submitted that these were not such proceedings and that, accordingly, the hearing should be in public having regard to the provisions of Article 34.1 of the Constitution.

3. The application for leave to issue judicial review proceedings had been refused in the High Court on the ground inter alia that, if the respondent had erred in the order which she made, it was an error within jurisdiction. If the learned High Court judge was correct in so holding, it would follow that, if the applicant were aggrieved by the determination of the Circuit Court, his appropriate remedy was by way of appeal to the High Court. The intention of the Oireachtas that proceedings under the 1996 Act were to be heard in camera would be frustrated if an unsustainable application for judicial review in respect of the Circuit Court order, grounded as here on affidavits setting out in detail evidence heard by the Circuit Court, had to be heard in public. The court, accordingly, decided that the appeal from the order of the High Court would be heard otherwise than in public in order to ascertain in limine whether there was a sustainable ground for granting leave.

4. It appears from the affidavit sworn by the applicant in support of his application that he and D.J. were married on the 5th November 1982 and that there are three children of the marriage. As already noted, a decree of divorce was granted by the Dublin Circuit Court on the 29th June 1998. It also appears from that affidavit that, on that occasion, an order by consent was made providing inter alia for the making of periodic payments by the applicant for the benefit of the three children of the marriage.

5. The applicant applied by way of a notice of motion dated 17th November 1999 for a number of orders, including an order varying or amending the order in relation to periodic payments. This notice of motion came on for hearing before the respondent on the 29th November when counsel for D.J. submitted that the court had no jurisdiction to review the consent order. Having heard the applicant’s response, the respondent said that she would like to consider the matter and would give her judgment at a later date. She gave her judgment on the 27th January and said that under s. 22(2) of the 1996 Act, she could only vary the order as to periodical payments if she considered it proper to do so having regard to any change in the circumstances of the case and to any new evidence. She said that the only change in the applicant’s circumstances since the consent order was that he had himself acquired a larger mortgage for his own requirements. She said that she was satisfied that in these circumstances it would not be proper to alter the maintenance arrangements. She accordingly refused the application sought and granted costs to D.J. The applicant says that at the time she gave this judgment the respondent informed him (the applicant) that the matter was still in camera .

6. The grounds relied on in the High Court by the applicant can be summarised as follows:

(1) That the refusal by the respondent was contrary to the relevant legislation and to the requirements of fair procedures and natural constitutional justice;
(2) That the respondent had improperly referred to the parties having previously availed of mediation;
(3) That the applicant was prevented from procuring particulars of D.J.’s property and income arrangements by virtue of the respondent’s ruling, contrary to the relevant legislation;
(4) That the respondent was in error in stating that there were no other grounds for review of the periodic maintenance payments other than an increase in the mortgage repayments of the applicant.

7. In this court, the applicant relied on additional grounds as follows:-

(1) That the decision of the respondent flew in the face of fundamental reason and common sense;
(2) That the respondent failed to take into account all the circumstances of the applicant, D.J. and their children as she was obliged to do under Article 14.3.2º of the Constitution;
(3) That the giving by the respondent of her judgment otherwise than in public was in breach of Article 6.1 of the European Convention for the Protection of Human Rights and Fundamental Freedoms.

8. The learned High Court judge was of the view that the respondent heard the applicant’s case and that she was entitled to come to a conclusion on the merits of the applicant’s case, having read the affidavit and heard submissions, and that, in the result, there had been no denial to him of natural justice. He was also of the opinion that, if there was any error on her part, it was an error within her jurisdiction and could only be corrected on appeal.

9. I am satisfied that the learned High Court judge was entirely correct in so holding and that none of the additional grounds urged in this court entitled the applicant to the relief he was seeking. The respondent arrived at the conclusion, having read the affidavit of the applicant and heard the submissions, that it would not be proper to review the periodical payments in the light of the allegedly changed circumstances and evidence adduced by the applicant. That was plainly a finding which it was within her jurisdiction to make and which, if mistaken, could be corrected only by way of appeal. Had the applicant pursued an appeal to the High Court, the view might have been taken that the applicant had demonstrated a sufficient change in circumstances and had adduced sufficient evidence to warrant the making of an order pursuant to s. 22(2) of the 1996 Act. The applicant having failed to take that course cannot succeed in having the respondent’s order set aside where it was plainly made within her jurisdiction.

10. I am also satisfied that there is no ground for arguing that the order was so manifestly contrary to reason and common sense as to justify it being set aside in judicial review proceedings. As to the submission that the respondent should have given her judgment in public, I am satisfied that this is also not well founded: the giving of the judgment was part of the proceedings under the 1996 Act which, by virtue of s. 38(5) of the 1996 Act were to be heard otherwise than in public.

11. I would accordingly dismiss the appeal and affirm the order of the High Court.

–
12. It follows that, in these circumstances, it is unnecessary for this court to review its preliminary finding that this matter should be heard otherwise than in public, for the reasons I have given at an earlier part of this judgment. Unless and until the relevant legislation is found to be invalid having regard to the provisions of the Constitution, the High Court and this court must give effect to the requirement in the legislation – in this case s. 38(5) of the 1996 Act – that proceedings of this nature be heard otherwise than in public.

McG. (P.) v. F. (A.)

[2003] IEHC 19 (7 May 2003)

JUDGMENT of Quirke J. delivered the 7th day of May 2003.

This is an application by the petitioner for a declaration that the marriage entered into between the parties on the 25th September, 1993, was null and void.

It is claimed that the purported marriage between the parties was of no legal effect by reason of the fact that the petitioner and the respondent lacked the capacity to enter into or to sustain a normal lifelong marital relationship with one another as a result of their respective states of mind, mental conditions and emotional and psychological development at the date of the purported marriage.

At the commencement of the proceedings the respondent’s legal advisors announced that she was no longer contesting the claim advanced on behalf of the petitioner, that no evidence would be adduced on her behalf and that her legal advisors had been instructed to withdraw from the proceedings. I directed that the respondent should nonetheless be represented in court throughout the entire of the proceedings and she was so represented.

FACTS

The uncontested evidence adduced on behalf of the petitioner has established the following facts.

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The petitioner is a business man who completed his training in 1978 and who established a property investment and development company with his brother and sister in 1982.

The respondent has worked in a secretarial capacity in England for some five and a half years before returning to Ireland in July, 1991, where she worked in similar capacities in different companies.

The petitioner met the respondent in October, 1991, when he was 36 years old and she was 27 and a serious courtship between the two commenced in December, 1991, culminating in the parties announcing their engagement to be married in December, 1992.

During the weeks and months immediately following the engagement the business affairs of the petitioner were particularly tense and volatile and they occupied a substantial amount of his time.

In evidence he indicated that he was dismayed when the respondent advised him that she had booked a hotel for a wedding, on a date which she had chosen in September, 1993, when he felt he would be particularly busy.

During the summer of 1993, serious tensions developed between the parties relative to the petitioner’s lengthy working hours and his request for a postponement of the honeymoon.

Constant disputes arose between the petitioner and the respondent during the period up to and including the day immediately prior to the wedding and their relationship was strained and tense.

A disagreement between the parties on the day immediately prior to the wedding was of such severity that the petitioner believed that the respondent no

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longer wished to proceed with the wedding and this affected his confidence and caused him to consider postponing the wedding.

The events which occurred before, during and after the wedding ceremony were unfortunate and must have been deeply distressing for all of those who witnessed them.

The respondent was very late arriving at the church and was visibly intoxicated, having consumed a substantial amount of alcohol while preparing for the wedding and during a visit to a licensed premises on her way to the church.

It is unnecessary to recite the details of the respondent’s extraordinary and embarrassing behaviour during the course of the wedding ceremony and right throughout the remainder of the wedding day and evening.

It caused great distress and unhappiness and resulted in a serious of disputes which involved family members of both of the parties, including the respondent’s mother and the petitioner’s sister.

For the petitioner, the entire of the day and the evening which followed was so distressing that it resembled a nightmare and the position cannot have been much better for the respondent.

The wedding night passed in dispute and the following day the parties went on honeymoon, still in dispute with one another and with various relatives.

Although there had been a comparatively satisfactory sexual relationship between the parties prior to the marriage there were significant sexual difficulties between them on honeymoon, which was acrimonious, with constant disputes referable to the wedding ceremony and to the events which preceded it.

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Upon return from the honeymoon further disputes arose in relation to the accommodation which the parties were to share, the petitioner’s pre-occupation with his business and the continuing tension between the two families.

By autumn of 1995 the petitioner was constantly absent from the home and the respondent was refusing to conclude an agreement between them relative to their business affairs and inheritance.

No useful purpose will be served by a recitation herein of the considerable unhappiness and disagreement which the parties endured throughout 1996.

The petitioner issued the petition herein on the 31st January, 1997 and an answer was filed on behalf of the respondent on the 30th May, 1997. On the 14th May, 1997, the Master of the High Court, by order, appointed Dr. Gerard Byrne, Psychiatrist, as Medical Inspector to carry out a psychiatric examination of the petitioner and of the respondent and to report in writing to the court.

In June, 1997 the respondent sought and obtained an order restraining the petitioner from entering their home in Leinster.

Dr. Byrne interviewed both parties on several occasions, furnished a report in writing to the Court dated the 30th August, 2001, and testified during the trial of these proceedings.

He took the view that neither the petitioner nor the respondent showed any evidence of psychiatric illness or personality disorder. He believed that the actual circumstances of the wedding, together with the rows which preceded it, caused the petitioner to lose commitment to the marriage and to repudiate it almost immediately after the ceremony as a result of sexual and other difficulties which made him unable to sustain the relationship.

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Dr. Byrne said that the petitioner suffered from a ,condition which did not have a clinical description but had been caused by circumstances before, during and after the wedding which were superimposed the petitioner’s state of mind. The condition was characterised by anger, disappointment, distress and frustration.

He is satisfied that at the time of the marriage the petitioner lacked the capacity to enter into and in particular to sustain a relationship of marriage with the respondent.

There are no children of the marriage.

THE LAW

At the commencement of this case the respondent, who had formerly delivered an answer in which she affirmed the marriage and sought to have the petition rejected, indicated, through her legal advisors, that she no longer wished to contest the proceedings, would offer no evidence and was instructing her advisors to withdraw from the case.

Ms. Clissman, counsel for the petitioner properly advised the court that the petitioner had agreed to pay to the respondent a very substantial sum of money in order to make adequate provision for her in the future.

She stated that notwithstanding this payment there had been no collusion between the parties in relation to these proceedings but that in the event that this court saw fit not to grant the relief which has been sought herein, then the parties, who had not lived together since late 1996 or early 1997 had agreed that they would jointly seek a decree of divorce. She also stated that the respondent has agreed with the petitioner that the sum paid to her is sufficient to satisfy all or any claims which she has, or may in the future have, against the petitioner for maintenance or otherwise arising out of the marriage.

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Having considered the evidence in this case including in particular the evidence of Dr. Gerard Byrne, I am satisfied that there has been no collusion between the parties which would have the effect of concealing from this Court any evidence of whatsoever nature or kind which would be material to the determination which this Court is required to make.

It is now well settled that proof that a person at the date of marriage lacked the capacity to enter into and sustain a proper or normal marital relationship constitutes a valid ground for nullity (see U.F. (orse. U. C) v. J. C. [1991] 2 I.R. 330).

In P. C. v. V. C. [1990] 2 I.R. 91 it was decided that where two parties entered into a marriage contract innocently, being unaware that by reason of factors connected with the personality and psychology of each partner going beyond mere temperamental incompatibility, it would be impossible for them to sustain a normal marriage relationship, the petitioner should not be denied a decree of nullity because the respondent wished to hold him to the marriage bond.

O’Hanlon J. adopted with approval the following passage from the judgment of Barrington J. in B.D. v. M.C. (orse MD.) (Unreported, High Court, 27th March 1987)

“This being so, I am satisfied that this marriage could not have succeeded. This was because M. (the respondent) at the time of the marriage and at all times material to this case, was suffering from such a degree of emotional immaturity as to preclude the formation of a normal marriage relationship. I do not know if M.’s condition can be described as an illness. It is apparently a “disorder” which requires and may be susceptible to psychotherapy. But whether it is an illness or a disorder, it is equally incapacitating so far as the formation of a marital relationship is concerned.”
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He continued:

“His ultimate finding in that case was that “the petitioner and the respondent were unable to enter into and sustain a normal marital relationship because of the incapacity of the respondent resulting from emotional immaturity and because of the respective states of mind and mental conditions of the petitioner and the respondent.” Accordingly, he took into consideration, not only what was alleged against the respondent but also the contributing factor of the petitioner’s psychological make up …
The distinguishing feature between the present case and B.D. v. M.C. … lies in the fact that in the present case while I have come to the conclusion that there were elements of emotional immaturity and psychological disorder on both sides which prevented the formulation of a normal, viable relationship with each other, I would consider that these features and traits of character were much more marked in the case of the husband than in the case of the wife. As there has been no repudiation of the marriage contract on her part at any stage, but rather the strongest possible affirmation of it, can the husband rely on what is in a large measure his own want of capacity?
In my opinion, he can, primarily because of the fact that the want of capacity existed to some extent on both sides, as it did in B.D. v. M.C. … If necessary, however, I would also incline to the view that as both parties entered into the marriage contract innocently, in the sense that they were unaware that by reason of factors connected with the personality and psychology of each partner, it would be impossible for them to sustain a
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normal marriage relationship for any length of time, the petitioner should not be denied a decree of nullity because the respondent wishes to hold him to the marriage bond.”
In the instant case Dr. Byrne has testified unequivocally that it is his professional view that, at the time of the marriage, the petitioner lacked the capacity to enter into or to sustain a relationship of marriage with the respondent. His opinion is based upon lengthy interviews with the parties and was apparently fortified by the evidence adduced by other witnesses whose testimony he heard during the course of these proceedings.

He raised some doubts relative to the capacity of the respondent to sustain a relationship of marriage with the petitioner but his final opinion on that issue was inconclusive.

The respondent no longer seeks to affirm the marriage and does not contest the evidence adduced on behalf of the petitioner as to the incapacity of the petitioner.

I am satisfied on the evidence that, as in P. C. v. V. C. (supra), both parties in this case entered into the marriage contract innocently, in the sense that, by reason of factors connected with the personality and psychology of each partner, it was impossible for them to sustain a normal marriage relationship for any length of time. I have already indicated I am satisfied that there has been no collusion between the parties.

It follows that the petitioner is entitled to the relief which he seeks. Accordingly the marriage between the petitioner and the respondent is hereby declared null and void.

 

O’C. (M.) v. O’C. (M.)

[2003] IEHC 48

Judgment of Ms. Justice Finlay Geoghegan delivered on the 10th day of July 2003.

The appeal before me was limited to an appeal against the Order of the Circuit Court of 11 December 2002 dismissing the respondent’s claim for a declaration that the marriage of the parties solemnised on the 29th of August 1994 is null and void. That claim was made by the respondent in the Circuit Court as a counterclaim to proceedings brought against him by the applicant under the Family Law (Divorce) Act 1996.

Subsequent to the Circuit Court hearing, and it was submitted by reason of the evidence given by a clinical psychologist during the Circuit Court hearing the respondent delivered without objection from the applicant and with the leave of the High Court an amended counter claim. The counter claim in its amended form pleaded, insofar as relevant:

“The marriage of the applicant and the respondent could not succeed by reason of a psychological incapacity/impediment or condition suffered by either or
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both of the parties including immaturity such that neither could form and sustain a normal marital relationship with the others.”
At the hearing before me the claim was further refined to rely exclusively upon the incapacity of the respondent to enter into and sustain a proper marital relationship. It was accepted that the respondent was not suffering from any psychiatric or mental illness but it was submitted that he was at the time of the marriage suffering from a personality disorder such that he was incapable of entering into and sustaining a proper marital relationship.

The above ground was not a ground relied upon before the Circuit Judge. In the Circuit Court the claim to nullity was based upon duress and an absence of a full free and informed consent to the marriage by the respondent. This ground was not pursued before me.

The application of the respondent on appeal was opposed by the applicant.

THE FACTS

The respondent and the applicant each gave detailed evidence of their background, relationship prior to their marriage and up to their separation. This is well known to the parties and much of it not relevant to the issues which I have to decide. I am satisfied that each of the parties attempted to give their evidence in a truthful manner but their perception of events and explanations as to why they may have done certain things in the early nineties is undoubtedly coloured by their subsequent experiences and the benefit of hindsight. The essential chronology of events not in dispute is as follows.

The applicant and the respondent met in the autumn of 1992. Each-were very musical and immediately attracted to each other. The respondent had

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previously had at least three previous serious relationships. The applicant had had one previous serious relationship. They commenced having a full sexual relationship within a few weeks. They lived approximately twenty miles apart and the applicant spent a couple of nights a week in the respondent’s house.

In the spring of 1993 the applicant became pregnant. The applicant was very upset at being pregnant without being married. In May 1993 the respondent purchased the applicant “a ring”. It was perceived as an engagement ring. It is common case that there was no agreement to marry at that stage. The applicant commenced living full-time with the respondent in the summer of 1993. The relationship deteriorated. At the suggestion of the applicant’s obstetrician the applicant and respondent attended Dr. Quayle a clinical psychologist in the summer of 1993. Dr. Quayle gave evidence before me.

In December 1993 their son was born. It is clear that each party has a considerable affection for and attachment to their son. In August 1994 the applicant and the respondent married in a catholic church. There is considerable dispute between the parties as to how they came to agree to marry and the extent to which the respondent participated in the planning for and organisation of the marriage ceremony and reception. It does not appear to me to be necessary for the issues which I have to determine to resolve those disputes.

Within approximately six weeks of their marriage there was what the respondent described as “a major blowout” when for no particular reason the respondent appears to have lost complete control of his temper, broke crockery and when the applicant came to calm him bit her hand. He now recalls saying at that time “now that’s what marriage is all about” and experiencing a sense of being totally caged by the marriage.

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The applicant and the respondent separated in the autumn of 1995. In the early autumn of 1996 the applicant applied to the relevant Roman Catholic Diocesan Tribunal for a decree of nullity of her marriage. In December 1996 following interviews with the applicant and the respondent, she was informed that the grounds upon which the validity of the marriage was to be challenged before the church tribunal were:

(a) that the respondent suffered from a grave lack of discretion of judgment concerning the essential rights and obligations of marriage; and
(b) that the respondent was unable to assume the essential obligations of marriage. A decree of nullity was subsequently obtained from the Roman Catholic Marriage Tribunal. A number of applications were made in the intervening years to the District Court. Evidence was not given of the nature of these applications. Ultimately in 1999 these proceedings were commenced by the applicant in the Circuit Court claiming divorce and consequentional orders. In response, as already stated, the respondent claimed a declaration of nullity.
THE LAW

There was no real dispute between counsel for the respondent and counsel for the applicant on the legal principles applicable to the issues which I have to determine. They appear to be the following.

A marriage is voidable by reason of the incapacity of one party. A decree of nullity may only be granted to a person upon the ground of his own incapacity if there has-been conduct on the part of the other spouse which amounts to repudiation of the marriage contract. The seeking of a decree of annulment in the Ecclesiastical courts of the Roman Catholic Church will amount to repudiation of the marriage (see

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R (orse W) v. W (Finlay P. The High Court, Unreported, February 1980).

The grounds for nullity now include the fact that a person, at the date of marriage, lacked the capacity to enter into and sustain a proper or normal marital relationship. It is not necessary that such lack of capacity be by reason of psychiatric or mental illness. It may be caused by some inherent trait or characteristic in the personality of the person concerned, often referred to as a personality disorder. In U.F. (orse U.C.) v. J C. [1991] 2 I.R. 330 Finlay C.J. (with whom the majority of the Supreme Court agreed) stated

” … the incapacity to enter into and sustain a proper marital relationship would appear to be valid not only in cases where that incapacity arose from psychiatric or mental illness so recognised or defined but also in cases where it arose, from some other inherent quality or characteristic of an individual’s nature or personality which could not be said to be voluntary or self induced.”
EXPERT EVIDENCE

Mr. Edward Hogan Clinical Psychologist was called to give evidence by counsel for the respondent. Mr. Hogan had first met the applicant and the respondent in 2002 and had interviewed each in the context of the Circuit Court proceedings. The assessment made by Mr. Hogan was on the basis of those interviews and the earlier facts as recounted to him by each of the parties. Mr. Hogan’s considered view, albeit only from the position of having interviewed the parties in 2002 was that by reason of certain personality traits in the respondent which he identified in evidence he considered that there was “gravely absent” in him the capacity to sustain a normal marital relationship. He referred in particular to his self of obsession; a failure to

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develop “ego strength”; a lack of insight and a failure to take responsibility and accept blame Dr. Quayle Clinical Psychologist also gave evidence, called by counsel for the respondent. Dr. Quayle had seen each of the parties in July 1993. She had seen the applicant on at least two occasions one of which was with the respondent. She had seen the respondent on at least three occasions. She also saw the respondent again in November 1995 after the parties had separated. Dr. Quayle was initially asked to see the applicant in 1993 because her obstetrician was concerned about her emotional state. Dr. Quayle confirmed that in her view the applicant was at that stage very distressed at the thought of having a child without an engagement and marriage. Further that at that stage the respondent was adamant that he did not want to get married. Dr. Quayle stated she had ceased seeing the parties in 1993 as she believed that the applicant had hoped that Dr. Quayle would assist in helping the respondent to see his responsibility to get married. She stated that at that stage the applicant was anxious to get married and unable to accept that the respondent did not want to marry. She stated that at that stage the respondent was anxious to do the right thing and take responsibility for the child but not to marry. She was of the view at that time that neither party, in that context, was able to sustain a bond or marriage.

Dr. Quayle’s assessment of the personality and capacity of the respondent to enter into and sustain a proper marriage relationship was based on her interviews with the applicant and respondent in 1993, the single interview with the respondent in 1995 and his account to her of his previous relationships. He had given to Dr. Quayle an account similar to that given in evidence of three prior relationships two of which ended with the termination of a pregnancy of his then female partner.

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Dr. Quayle’s assessment of the respondent was that he had a limited capacity to form and sustain an intimate relationship; also that he had a poor history in taking responsibility within a relationship and found it difficult to cope with the pressure and would give into pressure to be seen to be doing the right thing. It was her view as expressed in evidence that as a matter of probability in 1994 the respondent lacked the capacity to enter into and sustain a proper marital relationship.

CONCLUSIONS

The applicant and respondent were married in a Roman Catholic Church in 1994. The applicant repudiated the marriage by the claim made by her in 1996 to the Roman Catholic Marriage Tribunal for a decree of nullity. Accordingly the respondent is entitled to seek a decree of nullity from this court based upon his own incapacity to enter into and sustain a proper or normal marital relationship.

Whilst this court will of course take into account the expert evidence given by the clinical psychologists it is in the final analysis for this court to decide on the basis of all the evidence adduced in court whether the respondent has established that he was incapable at the time of his marriage of entering into and sustaining a proper marital relationship by reason of incapacity attributable to some inherent quality or characteristic. See P.C. & C.M. (orse C) The High Court, Laffoy J Unreported 11th January 1996 at p. 26. Further the appropriate standard of proof to be discharged by the respondent is proof on the balance of probabilities.

I have concluded on the basis of the evidence given by the respondent, by the applicant and of the evidence of the two clinical psychologists that as a matter of probability the respondent, in August 1994 did lack the capacity to enter into and

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sustain a proper or normal marital relationship by reason of a personality disorder. Neither clinical psychologist heard the evidence of the other. I was struck by the similarity of the assessments made by each as to the particular personality traits of the respondent which each considered prevented him from having the capacity to enter into, a proper or normal marital relationship. Further those personality traits appear to me to be inherent characteristics of the respondent’s personality which must be considered a personality disorder and to have been borne out by the evidence given by the respondent and to a lesser extent by the evidence of the applicant.

Accordingly I will vary the Order of the Circuit Court so as to grant to the respondent the decree of nullity and remit the proceedings to the Circuit Court to deal with all other issues relating to the parties’ son and any property issues outstanding.

O’K v O’K

[2005] I.E.H.C. 384

Judgment of Mr. Justice O’Higgins delivered on the 29th day of July 2005.

This case comes before the court by way of a nullity petition which reads as follows:

“1. Your Petitioner went through a ceremony of marriage to the Respondent,……..otherwise……. at the Church of . . . in the County of the City of Dublin on the 6th day of September, 1994.
2. Your Petitioner and the said [……..], are and were at the date of the said purported ceremony of marriage, domiciled in Ireland.
3. Following the said ceremony of marriage, your Petitioner lived and co-habited with the Respondent….
4. There are no children of the, marriage between the Petitioner and the Respondent herein.
5. Your Petitioner and the Respondent have lived separate and apart from one another since in or about the month of June, 1999.
6. Your Petitioner …. resides at ….Your Respondent herein …. resides at ….
7. Your Petitioner did not give nor was he capable of giving a full, free or informed consent to the said ceremony of marriage.
8. As of the date of the said ceremony of marriage, your Petitioner by reason of psychiatric illness, personality disorder and/or emotional immaturity was incapable of entering into and sustaining a normal marital relationship with the Respondent.
9. As of the date of the said ceremony of marriage, your Respondent reason of emotional immaturity and her state of mind, was incapable of undertaking the nature, duties and responsibilities of a normal marital relationship with your Petitioner.
10. The Respondent herein did not give a full, free and informed consent to the said ceremony of marriage.
11. As of the date of the said ceremony of marriage, the Respondent, by reason of emotional immaturity and her state of mind was incapable of entering into and sustaining a normal marital relationship with the Petitioner herein.
12. The Respondent herein has by her conduct repudiated the marriage between the Petitioner and the Respondent herein.”
By order of the Master of the High Court dated the 19th December 2001, Dr. Michelle Cahill a consultant psychiatrist was appointed as the medical examiner in this case. By further order of the Master dated the 6th October, 2004 the issues to be tried were set out as follows:

“1. Whether the Petitioner gave or was capable of giving a full free or informed consent to the ceremony of marriage.
2. Whether at the date of the marriage the Petitioner by reason of psychiatric illness personality disorder and/or emotional immaturity was incapable of entering into and sustaining a normal marital relationship with the Respondent.
3. Whether at the date of the marriage the Respondent by reason of emotional immaturity and her state of mind was incapable of undertaking the nature (sic) duties and responsibilities of a normal marital relationship with the Petitioner.
4. Whether the Respondent gave a full free and informed consent to the ceremony of marriage.
5. Whether at the date of the marriage the Respondent by reason of emotional immaturity and state of mind was incapable of entering into and sustaining a normal marital relationship with the Petitioner.
6. Whether the Respondent has repudiated the marriage and such other issue or issues as to the trial judge shall seem fit.”
In her answer to the petition the respondent denies the incapacity alleged by the petitioner both in respect of his capacity to enter into the marriage and in respect of her own. She further contends that the petitioner has by his conduct approbated the marriage and ratified the marriage and contends that he has acted with undue delay and she claims the proceedings amount to abuse of process of the court.

The case was heard over a period of six days and the court heard evidence from no less than five medical doctors (four of whom were consultant psychiatrists) as well as evidence from four other witnesses, apart from the petitioner himself.

On the fourth day of the hearing counsel for the respondent indicated that her client no longer wished to context the nullity proceedings on foot of matters that had transpired since the hearing commenced. Quite properly the Court was told that financial arrangements had been put in place between the parties. However these arrangements were in no way dependent on the outcome of the proceedings. I am quite satisfied that no question of collusion arises in these proceedings.

The psychiatric evidence was directed principally to the two main issues in the case. Firstly the ability of the petitioner to exercise an informed judgment and to consent to enter into the marriage contract. At issue was the question as to whether the apparent consent to marriage was vitiated by reason of the mental condition and/or use of medication by the applicant. The second issue was whether the petitioner by reason of his mental condition was capable of sustaining a martial relationship.

The consent issue

In regard to the consent issue the evidence was as follows.

Dr. Corkery a consultant psychiatrist who treated the petitioner for bipolar disorder between 1991 and 1993 was of the view that ideally there should be “between six months and a year of the mood being absolutely stable and everything happening as regards compliance with advice, education and medication” before a person with bipolar illness should enter a marriage contract. She also said that she would advise persons who had an episode of illness “not to make serious decisions in life for a considerable time until they are very well settled”.

Dr. Cahill was the examiner appointed by the Master of the High Court to report on these issues to the court. It was her considered opinion having read Dr. Shelley’s psychiatric notes and having regard to the petitioner’s own history that his decision to marry i.e. his consent to marry on the date of the marriage was not flawed. She was of the view that at that time his mood was stable and remained stable for a number of months after the marriage until he got depressed. However, Dr. Cahill revised her opinion in the light of further reports from Dr. Shelley and Dr. Lucey and the light of a fuller history of the applicant and told the court that by reason of his medication and history of illness she considered that the petitioner was incapable of forming a proper judgment to get married.

The applicant was under the care of Dr. Rory Shelley, a consultant psychiatrist from 1993 to 1996. Dr. Shelley saw him on the 29th August 1994 just over a week prior to his wedding and described his mood as normal. When he saw him again two days after the wedding Dr. Shelley noted that the petitioner had got on well at the wedding. It was his view that the petitioner had the capacity to enter into a marriage on the date of the wedding and that there was nothing in his mental state at the time of his wedding that would have impaired his capacity. Dr. Shelley has since concluded that the petitioner suffers from a neurological deficit associated with his illness. However, even if that deficit were present at the time of his marriage, Dr. Shelley did not think that it was of such a severity that it would have interfered with his ability to enter into the marriage at the date of the wedding.

Dr. Lucey is a consultant psychiatrist who is currently treating the petitioner. He considered that the medication being taken at the time of his marriage would not have adversely affected the petitioner’s judgment. He thought that the petitioner was quite clearly capable of consenting to marriage, but that he did not have the capacity to enter into a marriage because marriage involves commitment.

The petitioner himself said in evidence that “certainly I knew what I was doing when I got married”.

The petitioner was under medical treatment for bipolar disorder at the time of his wedding. He was on appropriate medication. I consider that in regard to his capacity to enter the marriage much reliance must be placed on the evidence of the psychiatrist who was treating him at the time and who saw him shortly before and shortly after the wedding ceremony. I must also have regard to the evidence of the applicant himself. Moreover there has been evidence from the applicant’s brother between that at his request the applicant deferred the wedding for a period of about a year. Whatever the advisability of the applicant waiting for a longer period of stability in his condition, I have little doubt that he was capable of exercising the judgment to get married.

In those circumstances the petition cannot succeed on the first issue.

The capability of the petitioner to enter into and Sustain a normal marital relationship with the respondent.

The evidence of the petitioner

The petitioner was born in 1946 and commenced work in 1969. He had a

very rapid rise in his career and within a period of 10 to 12 years he had no less than 6 offices throughout the country. He had acquired a number of expensive houses as well. The petitioner told the court of some of his relationships with women. He was engaged at least three times. He was engaged several times to one particular woman and he told the court that rings were flying “hither and thither”. Despite his success however the petitioner told the court that he felt lonely and unfulfilled. He felt that things began to go wrong in the mid 1980’s. In 1991 he was first hospitalised for his bipolar disorder, but prior to that he had been under the care of his very concerned general practitioner. His first admission to hospital for bipolar disorder was an involuntary admission which occurred after a time when his general practitioner had attempted to treat him at home. The court was furnished with a synopsises of his attendance at work between the years 1998 and 2003. It is quite clear from that that because of his illness the petitioner was hugely impaired in carrying on his work during that period of time. Moreover the evidence of Mr. O’C. partner in one of his offices shows that the petitioner was unable to attend to hiswork, a fact which caused very great concern to many people. The petitioner described his involvement in fundraising and other things to which he devoted an inordinate amount of time and effort at a period when he was not very well.

The petitioner met the respondent in 1993 some weeks before he was hospitalised for his illness at the end of July of that year. On his discharge from hospital his mood was unstable. He described an incident where the respondent and himself were ejected from a public house for unbecoming behaviour while he was in a state of elation owing to his illness and further incidents some short time later where he took a number of sleeping pills in the early evening because of the onset of depression. During the year prior to his marriage he was frequently staying in bed. He worked very little and was generally unwell. Sometime before his wedding he resumed the lithium medication. It is unnecessary in this judgment to detail the history of the marriage given by the petitioner however in the year following the marriage he had a very poor record of attendance at work. He felt unhappy and frustrated. He encouraged the respondent to socialise and she frequently stayed out very late returning in the morning time. This was a matter of indifference to the petitioner. His marriage did not get him “back into normality”. He felt guilty that he was not “behaving like a husband should in every sense of the word”. The friction between the parties increased over the year. The petitioner described an incident in July of 1997. He was staying overnight with the respondent in the house of Mr. O’S. The petitioner went to bed early and in the morning he noticed that his wife and Mr. O’S. were still in the sitting room in a state of partial undress. Mr. O’S’s shirt was open, he had no trousers on and his penis was exposed and the respondent’s underclothes had been taken off. He knew from looking “that there was something happening, but he didn’t want to see what was happening. However he did see them kissing. Mr. O’S adamantly denies that he was in such a state of undress although he may have his shirt open. He denies that there was sexual impropriety other than some kissing. There is also reference in a diary of the respondent which refers to sexual conduct short of “full sexual intercourse with Mr. O’S. The petitioner through his counsel relies on his version of this incident as providing evidence that the respondent repudiated the marriage. In my view if the petitioner’s version of the incident is preferred the behaviour complained of was clearly inappropriate and hurtful conduct but in my view in the overall context of the marriage history does not prove repudiation of the marriage by the respondent for the purpose of this case. The petitioner told the court that he was surprised at his own lack of reaction to this particular event however the physical relationship between the parties ended at that time. The petitioner and the respondent spent more and more time apart and by the time that they finally parted in 1999 the respondent was living apart from him for a period of about five months every year.

The evidence of Dr. Corkery

Dr. Corkery is a consultant psychiatrist. The petitioner came under her care in June of 1991 having been referred by Dr. Smith his general practitioner. Her referral letter contains the following which is of relevance:-

“Thank you for agreeing to see [the petitioner] who is suffering from hypomania. I note from my files that he first suffered from hyperactivity in October ’87 for one month. At that time I was worried about him – he got depressed when he turned 40 years. I made an appointment for him to see Dr. Tubridy in Dublin but he didn’t see the need and did not attend. At that time he developed an interest in religion again, darting into church throughout the day to light candles, feeling guilty about his past life’s events. He became over-talkative and gave inappropriate interviews to the radio and newspapers. While the media people were delighted with his openness, he did spill out details of his personal life and feelings which were quite unnecessary to be publicised. Normally he was quite a private person.
In October ’88 he lost interest in work, even in enquiring how things were progressing at the office. He was out of work for one month, staying in bed in his darkened bedroom with phone off the hook and refusing to answer the doorbell. Normally fastidious about his person hygiene and clothing he neglected himself, became dirty and unkempt, spilling his bedside drinks and messing the food that he had his office manager deliver to him. This episode followed six weeks of hyperactivity-organising a massive Fund Raising event locally which was an extravaganza and also getting himself engaged to be married for the third time.
In November ’88 I admitted him to the Blackrock clinic for ‘treatment for his D.U.’
While there he was seen by Dr. Peter Fahy whom he had seen in the past. He felt that he was hyperactive but no evidence of any formal psychiatric illness. His follow up appointment was cancelled by G….
After discharge G. went to see Dr. T. on two occasions on the advice of a colleague in Dublin.
In June ’89 he again came to see me complaining of being ‘burnt out’, ‘wrecked’, insomnia and requesting something to ‘calm me down’. He was over-talkative, tearful with rapidity of speech. It was noted locally that he was emotionally labile at public meetings with inappropriate behaviour. He was elated about his new romance, dashing over and back to London to meet her and relating to all and sundry the details of their relationship.
I prescribed Largactil but as there was nobody to monitor his medication I’m quite sure he didn’t take it regularly. He was ill for three months. He has not worked for over two years. He attends the office but spends his time organising Fund Raising events. He spends a lot of his time with the [a singer’s] fan club and promoting [a singer’s]’look-a-likes’, travelling to […..]etc.
Having organised a huge Charity Auction in Dublin in April he took to his bed again and felt ‘drained’. I prescribed Serenance in small doses but I felt he was untruthful when he’d tell me he was taking tabs. as prescribed.
He is hypomanic but can appear to function well. He has no insight into his condition. He has no awareness of the embarrassment he causes to those around him. When he waits to see me in the surgery he converses in a very loud voice to the other patients, telling a blonde patient that she is ‘beautiful’ and handing out five pound notes to children.
He is very ill, family and colleagues are very concerned about him. If he refuses treatment it may be necessary to commit him. I think we must be forceful about the need for treatment. I feel that there is ample evidence of bipolar disorder which ought to respond to Lithium. I spoke with B.W. the office manager who would take charge of medication. I do not think [the petitioner] would comply with treatment. He is unmarried and lives alone. There would be a problem at weekends when travels to Dublin usually. I would value your opinion.
Sincerely,”
In June 1991 the petitioner was committed to hospital as an involuntary patient. However after approximately 2 days he was discharged and readmitted as a voluntary patient to another hospital in the area. There is some confusion as to his periods in hospital at that time but it appears that he was in hospital initially for a three week period returning home one weekend and that in July of 1991 shortly after his discharge he was readmitted for a period of some days. Dr. Corkery provided a report dated the 9th July 2004 for the purposes of this case. In it she says the following:

“Course of illness:
When [the petitioner] was under my care he showed evidence of quite severe Bipolar affective disorder with considerable lack of insight into his illness i.e. poor realisation of the severity of the illness, the need for treatment and the need for compliance with treatment. As a result . . .[the petitioner’s] illness was quite difficult to control and this resulted in his mental state being very unstable at times with resultant disinhibition, overspending, difficulty carrying out work and poor judgment when elated. While depressed [the petitioner] shows a poor level of functioning and often feels so depressed that he spent prolonged periods in bed and showed inability to carry out normal duties and even self-care.
I do not feel that [the petitioner] was in my view capable of having the capacity to enter into and sustain a normal marital relationship because of his serious mental illness which caused disabling mood swings, disinhibition, variable levels of activity and impaired judgement also. The illness was compounded by the fact that [the petitioner] is a very able intelligent man who is a very successful man.
[The petitioner] could be very difficult to persuade re: absolute compliance with medications and absolute avoidance of alcohol which resulted in his discontinuing his mood stabilisers when he persuaded me to literally succumb to his persuasive powers and give up lithium his mood stabiliser. This resulted in deterioration in [the petitioner’s] illness when he was without Lithium which is the Gold Standard Treatment in the Management of Bipolar affective disorder. When [the petitioner] left my outpatient care in 1993 he was mentally quite unwell and appeared at that time to see various medical people with ongoing difficulties in stabilising his illness due to [the petitioner]’s insistence in seeing doctors for psychotherapy and not pharmacotherapy which is the management of a severe illness such as Bipolar Effective Disorder.
In Conclusion chronic Bipolar Affective Disorder is a very disabling illness and causes very high disability. This was compounded it (sic) [the petitioner]’s poor compliance with treatment and non-avoidance of alcohol, and resulted in a very poor level of functioning and overall capability in a man who had previously been a very high achiever and Business Person.
At times [the petitioner] had to have the intervention of colleague such as Mr. B.W. to insure that his Business affairs were managed not to mention him being able to manage a serious demanding relationship such as matrimony”.
Dr. Corkery gave evidence that the petitioner had difficulty with sustaining relationships. She based that partly on the fact that he had rejected such a caring person as the general practitioner Dr. Smith. He had also left Dr. Corkery herself and he had also come into dispute with Mr. W. who works in his office and was extremely helpful to him. The court has some difficulty with this evidence. Firstly there is no evidence of the circumstances in which Dr. Smith ceased being the petitioner’s general practitioner. Secondly it appears that the petitioner’s leaving of Dr. Corkery was at least partly due to his desire to have a “talking only” therapy. This may indeed, have been an unrealistic ambition, but in view of the side effects that he was experiencing on the lithium programme, it is a least understandable that the petitioner would wish to change to another regime. Thirdly some reliance is placed on the falling out with Mr. W. an employee of the petitioner who had been extremely helpful to and concerned about the petitioner during his illness. However Dr. Corkery was not aware that there are extant legal proceedings against Mr. W. in the name of the petitioner and his business partner. It is the view of the court that without knowledge of the details and merits of the dispute, no reliance can be put on the falling out between the petitioner and Mr. W. as impinging on the petitioner’s character. The court has some difficulty too with the partial reliance placed by Dr. Corkery on a personality trait which she describes as a dislike of females. Firstly there is no mention of it in her report and no convincing reason has been given to the court for its omission. Secondly it appears that the opinion was derived very substantially from the view of Dr. Smith the petitioner’s general practitioner, from whom the court has not heard any evidence. Thirdly the opinion is based at least to some extent on what has been called the rejection of Dr. Smith and the witness herself. Moreover Dr. Cahill the court appointed psychiatrist is of the opposite view, and considers that the petitioner likes women. I do not consider it safe to attribute much weight to this particular part of Dr. Corkery’s evidence. In all those circumstances it seems to me that it would be unsafe to put much reliance on the existence or otherwise of that personality trait contended for by Dr. Corkery. Dr. Corkery also described an inability at times to understand how others were feeling and insensitivity to the feelings of other people as being manifested by the petitioner. She said that the petitioner at times “certainly didn’t seem to be aware of other people’s feelings”. It is of considerable importance that this trait has been noted also by Dr. Mangan, Dr. Shelley and Monsignor O’C. This is a factor which has impinged on his ability to sustain relationships. Dr. Corkery was also of the view that the petitioner had many relationships without commitment was an indication that the petitioner would have “immense difficulty” in forming a caring relationship.

The evidence of Dr. Cahill

Dr. Cahill was appointed as medical examiner by order of the Master of the High Court dated the 19th December 2001. She assessed the petitioner on the 29th May, the 12th July and the 25th October and prepared a report for the Court.

Unfortunately in her original report the court appointed examiner did not address at all the issue of the capacity of the petitioner to sustain a marriage relationship – an issue at the core of this case. When this fact became apparent the petitioner sought by way of notice of motion dated the 7th May 2004 to have the matter rectified. That application was opposed by the respondent and in the event was not successful. In hindsight this appears unfortunate. However the witness told the Court that she saw the petitioner on four occasions over a period of eight hours – although it appears that there may have been only three meetings. Unfortunately the main focus of the report was addressed to the question of capacity to enter a marriage relationship given the medical history of the petitioner. The conduct of the partners throughout the marriage was also the subject matter of her interviews. The doctor conceded that the report could not be considered to be a thorough one. She had not the referral letter to Dr. Corkery who was the first treating psychiatrist. That letter contained some useful history from the general practitioner Dr. Smith and also referred to depressive episodes in 1997. The doctor did not have any information from Dr. Corkery. At the time when she saw the petitioner she had merely a copy of the petition however she subsequently obtained the notes from Dr. Shelley and was in possession of those notes prior to making her report. It is quite apparent there are serious difficulties with the report. Firstly as has been noted it did not address at all the central question of the petitioners capacity to sustain a marriage which is at the core of these proceedings, but rather concentrated on the capacity of the petitioner at the time of the wedding to enter a relationship. Secondly it is apparent that she was unaware of the full medical history of the petitioner. In particular she was unaware of the fact that he had an episode of depression in 1987 and that he had been under the care of Dr. Smyth for four years prior to being referred to Dr. Corkery the first consultant psychiatrist to see him. The medical examiner did not have any report from Dr. Corkery. She assumed understandably – but in the event incorrectly – that Dr. Shelley had had the benefit of the full relevant medical history of the applicant. Dr. Cahill was at a further disadvantage in that when preparing the report she was under the erroneous impression that she was not entitled to have regard to any matters that occurred after the date of the marriage and to take them into account. She had no material from Dr. Burke who the petitioner told her was treating him at the time, and she had no information from the psychiatrist of the details and nature of the depression that had lead the petitioner to be hospitalised in 1995. The result of all of these disadvantages was that on the first day of her evidence the witness had to state that she was not in a position to advise the Court on the issue of the capacity of the petitioner to sustain a marriage. She further told the Court that she was unable to stand over her report. Dr. Cahill however also told the Court that, in the light of all of the information of which she was now possessed (including post marriage data) that she thought – retrospectively that the petitioner was not capable of sustaining a long-term relationship. It has to be stated however that her evidence is somewhat confusing because later in the same day she told the Court that she was unable to express an expert view as to the capacity of the petitioner to sustain a marriage. On the fourth day of the hearing the reports of Dr. Shelley and Dr. Lucey were put to Dr. Cahill and the question of the capacity of the petitioner was revisited. Her final view was that in the light of all of the information in her possession that the petitioner was not capable of sustaining a marriage by virtue of his illness and personality traits (she told the Court that he was incapable of understanding the feelings of others). While there was an element of confusion caused by the evidence of this witness some of which has been set out above – it is safe to conclude that Dr. Cahill, on the fourth day of the case, felt able to and did in fact express her expert opinion that the petitioner lacked the ability to sustain a normal marital relationship. This evidence has to be assessed in the light of the rest of the evidence.

The evidence of Dr. Lucey

Dr. Lucey is a consultant psychiatrist and is at present treating the petitioner who has been under his care since December 2003 during which period he has seen the petitioner 22 times. He had in his possession reports from Dr. Corkery, Dr. Shelley, Dr. Burke and a letter from Dr. Smith who had been his G.P. in 1991. His understanding was that the petitioner is suffering from bipolar disorder which first manifested itself in 1984 when he suffered an episode of depression. In 1987 he had his first hyper-manic episode and other such episodes in 1989, 1991, and 1993 at which time he was first hospitalised under Dr. Corkery and put on lithium.

Dr. Lucey’s report dated the 28th August 2004 contains the following:

“His personality is histrionic in nature being extrovert, emotionally labile, self-centred and attention seeking, and incapable of understanding [the] feelings of others”.
His conclusion was as follows:

“It is my opinion that [the petitioner] has been suffering from longstanding bipolar affective disorder and has underlying personality difficulties. His illness has never stabilised, and with his underlying personality has resulted in significant impairment in personal, social and occupational functioning.
It is my opinion that [the petitioner] lacked the capacity to enter into and to take on the responsibilities of the tasks of marriage and to sustain a marital relationship”.
The witness expressed the view that the applicant had a personality disorder, a diagnosis not mentioned to the Court by the other professionals. Dr. Corkery, however, did mention a personality trait which has already been referred to. Dr. Lucey told the Court that he was ‘very satisfied’ that this man did not have the capacity to get married. He told the Court that he would be prepared to form his opinion purely on the basis of the bipolar illness even absent the personality disorder which he diagnosed. His opinion was at “the very high end of the scale of confidence in its correctness”. Moreover his opinion that the petitioner had not got the capacity to sustain a normal relationship in the context of marriage was given on the understanding that whatever constitutes normal must convey a wide range of behaviour. He told the Court that the petitioner was incapable of understanding the feelings of others, he was insensitive to others.

The evidence Dr. Shelley

The petitioner came under the care of Dr. Rory Shelley on the 31st July 1993 when he was admitted to St. John of God’s hospital. He was subsequently discharged on the 23rd August 1993 and continued to attend Dr. Shelley as a out-patient until October of 1995.

Dr. Shelley prepared two reports for the purposes of this case. Having expressed the view that the petitioner was capable of entering a marriage contract.

His report dated the 13th July 1994 expresses the following view in relation to capacity to sustain a normal relationship:

“The issue of his capacity to sustain a normal marital relationship is less clearcut. The recurrent nature of his mood disorder medically would have predicted that following marriage it was likely that [the petitioner]would experience further episodes of mood change. My medical notes indicate that subsequent to his marriage he did have episodes of depressed mood and such required appropriate medication. Such alteration in mood would generally have created strain on his marital relationship generally and specifically appears to have caused difficulties such as impaired libido either as a consequence of the mood change in its treatment. This would have a negative impact on his capacity to sustain a normal marital relationship”.
Dr. Shelley explained to the Court what he meant was that the petitioner was likely to experience further mood difficulties. He had trouble with depression which required treatment and that the depression and/or the medication necessary to deal with it would have a negative effect on his libido and that this negative effect on his libido would cause marital strain. He did not intend to convey that he saw the depression as an absolute bar to his capacity to sustain a relationship.

Subsequently however as a result of communication with the petitioners solicitor he prepared a report dated the 1st June 2005. The second report of Dr. Shelley reads as follows:

“This report is in addition to my previous report dated 13th July 2004. It has been prepared:-

“(1) Having received the documentation forwarded to me by
Fawsitt, Solicitors on [the] 26th April 2005. This includes medical reports from Dr. Bríd Corkery, Consultant Psychiatrist, who treated [the petitioner] prior to his coming into my care, and also from Dr. Michael Lucey, Consultant Psychiatrist who has been treating [the petitioner] in recent times.
(2) Having met with [the petitioner] on the 1st June 2005.
In my report of 2004 I indicated that the issue of his capacity to sustain a normal marriage relationship was not clear-cut. On the one hand, on the basis of my experience of treating patients with Bipolar Mood Disorder, I would have found that the majority proved capable of sustaining normal marital relationships. It is a relapsing and remitting disorder. With treatment there is a reasonable expectation of long periods of well-being during which the person can function normally. The prognosis, and any impact on the marriage, is dependant on the patient’s appropriate compliance with treatment, in particular mood stabilising medication. When a person who has this condition marries, it can often have a stabilising effect, in that having a spouse helps to monitor changes in mood more completely than when somebody is living alone, and in particular helps to ensure treatment compliance.
On the other hand having read the above named Reports, and met with [the petitioner] for the first time since he left my care in October 1995 the following is apparent:-
(1) [the petitioner].’s compliance with mood stabilising medication was not as good as I had estimated it to be prior to his marriage. Therefore the prognosis was poorer than I had anticipated. Failure to comply with medication meant that his illness was likely to have had a more negative effect on his marital relationship than anticipated.
(2) There has been an overall deterioration in [the petitioner].’s general functioning in life. It is evident that he was once a successful [……]. Unfortunately, he has changed to being unable to attend to his [work] for long periods of time with a consequential negative impact on his business.
Some of this change was also evident when I met with him on 1st June 2005. Whereas he retains his pleasant and affable style, there are indications currently that his cognitive function has deteriorated in some aspects. Whilst talking to him he tended not to grasp accurately what I was saying and answered some of my questions off the point. This does not appear to be explained by an alternation in his present mood nor current prescribed medications. Therefore [the petitioner] has been unfortunate in that his condition has not followed the usual course of relapses followed by full remission. Rather he has sustained a neuro-cognitive decline. This would be of significant implication for his functioning on all aspects of his life, including his capacity to sustain a normal marital relationship. This decline is in my view an integral component of his Bipolar Mood Disorder, although it may only become evident over time as the condition became more chronic.
Arising from points 1 and 2 above, it would now be my view that [the petitioner] was unlikely to sustain a normal marital relationship.”
Dr. Shelley explained his conclusion and said he was of the view that it was probable that the petitioner would not have been able to sustain a normal marital relationship.

There is a difficulty caused by the second report of Dr. Shelley. It appears the revised opinion is based on two factors, one of which is the fact that the petitioner’s compliance with mood stabilising medication was not as good as Dr. Shelley hoped. However, there is no compelling evidence that there was an inability to comply with the medical regime as apposed to a failure to do so. Indeed the evidence to the Court by the petitioner was that he was compliant every day since July 1997. In those circumstances the Court cannot conclude that the failure to comply with medication was caused by incapacity other than choice. In those circumstances, the question of capacity to sustain a marriage is not addressed by mere evidence of non compliance with the appropriate medical regime.

The second of the reasons for the revised opinion is based on the diagnosis of a neuro cognitive decline which was unfortunately not anticipated. However the fact such neuro cognitive decline is now present does not in my view address the capacity of the petitioner to sustain a relationship at the time he entered this marriage. In order to address that issue the Court would need evidence that the neuro cognitive deficit – as a result of his bi polar condition was present at the time. The Court is in those circumstances not prepared to rely on the revised opinion of Dr. Shelley.

The evidence of Dr. Mangan

Dr. Mangan is a general practitioner who has known the applicant socially since about the year 2000. The petitioner became his patient in 2001 when he attended him because he was feeling very down. The Court was told the petitioner suffers from manic depression in which he gets episodes of depression and elation. The doctor’s concern was to try and get the petitioner to comply with taking his medication because people with the petitioner’s condition are more vulnerable to mood swings than they would normally be if they were compliant with their medication. When the petitioner was complaint with his medication he improved somewhat but Dr. Mangan’s view was that he never got him to what he would call “calm waters”. He was either a little depressed or a little elated. When he was depressed he was vulnerable and the doctor had concerns that the man who was now living alone and was suicidal. He also saw him elated on a good number of occasions and in those situations he was loud and had no comprehension of his own nuisance. On one occasion he stayed overnight in the doctor’s house and in the morning came into the living room inappropriately dressed in that he was wearing a dressing gown that didn’t cover him although there were daughters in the room. The witness emphasised that the petitioner’s capacity to understand other peoples feelings was “very, very limited” and said that “he has no comprehension of other peoples feelings …[and] is so wrapped up in his own personality that he has no comprehension whatsoever”. Dr. Mangan was of the view that it was impossible for the petitioner to sustain a normal marital relationship because of his mood swings, his inability to relate to others and the unpredictability of his personality.

The evidence of Monsignor O’C.

Monsignor O’C. is a Parish Priest. He is a doctor of divinity and a doctor of canon law. He came to know the petitioner well at the end of the 80’s in which he was involved with him in a committee. He said that in dealing with a team or committee the petitioner’s behaviour was problematic in the extreme “Constant competitiveness, Constant challenging people”. He said that the petitioner did not realise how deeply he would hurt people. The first time the witness met the petitioner he was “absolutely on a high”. He described him as “selling himself more than anything else”, as a “kind of Lorenzo de Medici figure” and described him as being “abnormally high – definitely beyond the norm”. He described him as histrionic.

The witness has expertise in relation to the capacity to marry in the ecclesiastical courts and he worked in the marriage tribunal as the person who stands for the bonds of marriage and afterwards he became a judge in the tribunal. In that case he had familiarity with the capacity of person to sustain a marital relationship. The witness felt that he was incapable of sustaining a marriage. He thought the petitioner had not the capacity to sustain a marital relationship in the context of the jurisdiction that is the ecclesiastical jurisdiction of which he was familiar. When he heard that he had married he told the Court that “I shook my head and said this won’t work”. Monsignor O’C. is not a medical expert. It is clear that this Court is concerned only with the civil law concept of annulment and it is against that background that the evidence of the witness has to be assessed. Nonetheless because of his knowledge of the petitioner and his wide experience his views are valuable. His views were shared by the brother of the petitioner who told the Court that even on the day of the wedding he felt scepticism as to whether the marriage would endure.

The decision to grant a petition of nullity is a grave matter. In most cases concerning the capacity to enter into and sustain a marital relationship the Court hears expert opinion on the petitioner’s mental state and frequently hears an analysis of the petitioner’s personality. The Court is of course obliged to give due consideration to such expert opinion, proffered, as it is, for the assistance of the Court. However it would be wrong for the court in any case to accept uncritically the evidence of medical experts, no matter how distinguished. To do so would, in effect, be to substitute the opinion of the medical person involved for the decision of the Court itself. In this case for reasons I have stated I have reservations over aspects of the evidence of some of the professionals. I have certain difficulties with certain aspects of the evidence of Dr. Corkery but not necessarily with her conclusions. There were difficulties too with the original report and with the evidence of Dr. Cahill. For the reasons I have already indicated I do not propose to rely at all on the revised opinion of Dr. Shelley. However, Dr. Corkery, Dr. Cahill, Dr. Lucey, Dr. Shelley and Dr. Mangan were unanimous in their view that the petitioner was incapable of sustaining a marital relationship. Their view is shared by Monsignor O’C. and it is clear too that the petitioners brother had misgivings.

The petitioner suffers from Bipolar Disorder. It is described thus by Dr. Corkery:

“It is a severe illness which is characterised by severe sustained alteration of mood which exceeds customary sadness or customary cheerfulness and is present for a prolonged duration and is accompanied by severe excesses [of] either elation accompanied by some of the following; over activity, over talkativeness, over spending, promiscuous, disinhibited behaviour. It’s frequently accompanied by insomnia and irritability. When the patient becomes depressed it is . . . a severe sustained lowering of mood which exceeds customary sadness. It’s a profound illness which interferes very much with the persons life and quality of life. There could be severe insomnia as well. There could be periods of not eating properly. Certainly (he) would not be able to function at work or in personal life and often there would be low self-esteem and inability to look after their own daily needs. Its quite a severe disabling illness and is characterised usually by a lack of insight. That the person themselves mightn’t be aware that they had either elation or depression. . . . frequently judgement is impaired and it is a common manifestation of the illness”.
It is important to note also that the existence of Bipolar illness does not indicate that a person has not the capacity to enter and sustain a marital relationship. Very many people subject to this illness are capable of contracting and sustaining rich enduring marital relationships. The question in this case is as to whether the petitioner, by reason of his illness and his personality was incapable of sustaining such a relationship. His illness manifested itself in the mid 1980’s and has caused him to be hospitalised on several occasions on one of which he was an involuntary patient in a psychiatric hospital. The illness has had devastating effects on his professional life and led to huge disruption and unhappiness in his private life. Unfortunately despite medical treatment the petitioner continues to suffer from his illness and there has been some impairment to his cognitive function.

In addition to his serious illness the petitioner has a great difficulty or inability to appreciate the feelings of others. This was stressed by Dr. Corkery, Monsignor O’C. and Dr. Lucey and Dr. Mangan. It is not without significance that both Monsignor O’C. and the petitioner’s brother had very serious misgivings when they heard they heard that the petitioner was going to get married.

Having carefully and critically considered all the evidence in this case, I have no doubt that the petitioner was incapable of sustaining a marital relationship by virtue of his illness – and its effects on his personality.

The Court having decided by reason of his illness that the petitioner was incapable of sustaining a marital relationship, it is necessary to consider two further matters, firstly, whether it is open to the petitioner to rely on his own incapacity as grounds for annulling the marriage and secondly whether it is necessary for him to show that the respondent repudiated the marriage by her conduct. In relation to the first matter it seems clear that a petitioner can rely on his own incapacity at least in circumstances where the other party has repudiated the matter (see the judgments in McM. v. McM. [1936] I.R. 177, D.C. v. D. W. [1987] 1 I.L.R.M. 58). However the question as to whether where a petitioner relies on his or her incapacity it is necessary for the marriage to be repudiated by the other party is a much more complex matter. In McM. v. McM. [1936] I.R. 177 it was held that a spouse can rely on his own impotence to nullify a marriage only if the other party has previously repudiated the marriage. This decision was followed in many cases including the J. v. J. [1982] I.LR.M. 263 and D.C. v. D.W. [1987] I.L.R.M. 58. However a different approach was taken by O’Hanlon J. in the case of P.C. v. V.C. [1990] 2 I.R. 91. At p. 104 of the judgment O’Hanlon J. stated:

“The next question which arises is whether these findings of fact require that I should grant a decree of nullity, as sought by the husband but opposed with equal determination by the wife. As I have found this an unusually difficult case to decide, I propose to refer in some detail to the manner in which the law of nullity has developed in recent years in decisions of the Irish courts”.
In S. v. S. (unreported, Supreme Court, 1st July, 1976) Kenny J. reiterated the well established principle that the petitioner must establish his or her case with a high degree of probability, or ‘must remove all reasonable doubt’. He continued:

“A petitioner cannot be granted a decree for nullity on the ground of his own impotence unless he/she can also satisfy the court that there has been conduct on the part of the respondent amounting to a genuine and deliberate repudiation of the marriage contract and its obligations (McM. v. McM [1936] I.R. 77, a decision of Hanna J. in the High Court followed)”.
This passage in the judgment leads to some difficulty. It appears that O’Hanlon J. was of the view that the matter had been considered by the Supreme Court in S. v. S. However a perusal of the unreported judgment of Kenny J. in the Supreme Court contains no such passage as is referred to in the judgment of O’Hanlon J. The quotation referred to may have been part of some other judgment. It would appear to be a reference to the judgment of McM. v. McM already referred to. At p. 219/220 of that judgment the following passage appears:

“To sum up finally on this difficult question of law, and having considered the argument advanced in its three branches, I have formed a definite opinion that the decree for nullity of marriage cannot, according to the principles of the Ecclesiastical Law as administered in our Matrimonial Courts, be granted to a petitioner on the ground merely of a petitioner’s own impotence, but it is clearly established that if a petitioner can, in addition to proof of his own impotency, satisfy the Court that there has been, and is, conduct on the part of the respondent which has destroyed the verum matrimonium, e.g., by a genuine and deliberate repudiation of the marriage contract and its obligations, the Court may ex justa causa grant the relief”.
O’Hanlon J. having reviewed the authorities continued at p. 107 as follows:

“As there has been no repudiation of the marriage contract on her part at any stage, but rather the strongest possible affirmation of it, can the husband rely on what is in large measure his own want of capacity?
In my opinion, he can, primarily because of the fact that the want of capacity existed to some extent on both sides, as it did in B.D. v. M.C. (Orse. M.D.) (Unreported, High Court, Barrington J., March 1987). If necessary, however, I would also incline to the view that as both parties entered into the marriage contract innocently, in the sense that they were unaware that by reason of factors connected with the personality and psychology of each partner, it would be impossible for them to sustain a normal marriage relationship for any length of time, the petitioner should not be denied a decree of nullity because the respondent wishes to hold him to the marriage bond.
I think there is a good deal of substance in the criticism expressed by Mr. Shatter, in his excellent book on Family Law, concerning the application of the principle that a petitioner cannot be heard to rely on his or her want of capacity (be it physical or psychiatric) in seeking nullity, if the other partner wishes to uphold the marriage bond and has done nothing to repudiate it. (Family Law in the Republic of Ireland, 2 edn. pp. 73-75). Whereas the law in respect of want of capacity has developed by analogy with the law applicable in cases of physical impotence, it has resulted in the development of a new concept, and it appears to me to call for the re-examination of the applicability of the principle stated by Hanna J. in McM. v. McM. [1936] I.R. 177 in such cases. Such re-examination has already been undertaken by the Court of Appeal in England in Harthan v. Harthan [1949] P 115. Their conclusion was that even in the case of want of capacity resulting from physical impotence, unknown to the impotent spouse at the time of the marriage, a decree of nullity should be granted on his (or her) application, without requiring evidence of repudiation of the marriage by the other spouse.
For the reasons already stated, I do not consider that it is necessary for me to decide the present case on that basis, but if it were open to me to do I would tend to follow the lead given by that judgment”.
This decision of O’Hanlon J. was specifically followed by Quirke J. in the case of P.McG. v. A.F. (Unreported, High Court, Quirke J., 7th May, 2003)

In the light of the above decisions it appears that it is not always necessary that a petitioner seeking nullity on the grounds of his or her incapacity must also prove repudiation by the other party. That being so in my view (at least in cases where no defence to the petition has been entered or where such a defence has been abandoned) it is not necessary for the petitioner to prove repudiation of the marriage by the other party even in cases based on the incapacity of the petitioner. However, it is unnecessary to decide the case on that basis. In September of the year 2000 the respondent commenced proceedings seeking judicial separation and ancillary relief in which she claims inter alia that she can “no longer be reasonably expected to live and cohabit with” the petitioner. The talking of these proceedings constitute sufficient repudiation of the marriage for the purpose of this case.

Accordingly the petition is granted on the grounds that the petitioner by reason of his serious mental illness and its effect on a man with the personality traits as outlined in the psychiatric evidence was incapable of sustaining a normal marital relationship with the respondent.

Approved: O’Higgins J.

Izmailovic v Commissioner of An Garda Síochána

[2011] IEHC 32
JUDGMENT of Mr. Justice Hogan delivered on the 31st day of January, 2011

1. This application under Article 40.4.2 of the Constitution raises issues of very considerable public importance. As we shall presently see, these are difficult issues of some novelty involving an overlap of aspects of European law, constitutional law, family law, immigration law and the law of arrest.

2. The first applicant is a Lithuanian national who is a self employed painting and decorating contractor. She apparently met the second applicant over the internet in early 2009. She came to Ireland in May 2010. Some time after her arrival Ms. Izmailovic registered a business name with the Companies Registration Office and she also registered with the Revenue Commissioners for tax purposes.

3. The second applicant is an Egyptian national who unsuccessfully applied for asylum in 2008. He was subsequently made the subject of a deportation order which was issued on 5th November, 2010, by the Minister for Justice, Equality and Law Reform. He then failed to present himself as required at the Garda National Immigration Bureau, 13/14 Burgh Quay, Dublin 2 on 2nd December, 2010, whereupon he was then classified as an evader. It is plain that at present he has no entitlement to remain in the State and that he is here illegally.

4. The applicants maintain that they have been living together at an address in Dublin since shortly after Ms. Izmailovic’s arrival in the State in May, 2010. They apparently rented the premises for a twelve month period for €550 per month. In her affidavit Ms. Izmailovic has exhibited utility bills which appear to show that the parties were both living at this address in the autumn 2010. She also maintains that the parties went through a religious ceremony of marriage in a mosque in Clanbrassil Street, Dublin 8 on the 12th July, 2010, although it is not contended that this religious marriage has in itself any legal significance.

5. What is not in dispute is that the parties gave notice on 12th October, 2010, to the Civil Registration Office in Cavan of an intended marriage between them on 12th January, 2011 at 2.30pm. This application was duly acknowledged by the Registrar, Ms. Annemarie McQuaid, and it was confirmed that the necessary documentation was in order.

6. On 12th January, 2011, the parties travelled to Cavan with some friends for the marriage ceremony. However, shortly before the marriage solemnisation was about to take place, two officers from the Garda National Immigration Bureau arrived on the scene. According to the affidavit of Detective Garda Moran, he first spoke with Ms. McQuaid to explain the purpose of their visit. Detective Garda Moran then handed over a letter of objection to the proposed marriage from his supervisor, Detective Chief Superintendent O’Driscoll. I will examine presently the terms of that letter and its potential legal significance.

7. Detective Garda Moran then spoke to the applicants and informed them that an objection to the proposed marriage had been lodged by Detective Chief Superintendent O’Driscoll on the grounds that it was a marriage of convenience and that the matter was being investigated by the Garda National Immigration Bureau.

8. Detective Garda Moran then demanded production of Mr. Ads’ identity documents and he produced a valid Egyptian passport. He then arrested Mr. Ads pursuant to s. 5(1) of the Immigration Act 1999 (“the 1999 Act”) on the grounds that he intended to avoid deportation. Detective Garda Gaine took the details of the seven other persons present, six of whom were Egyptian and one was Syrian. At that point Detective Garda Moran and Detective Garda Gaine left the Registration Office and conveyed Mr. Ads to Cloverhill Prison where he is presently detained. Due to the actions of the Gardai the proposed marriage did not, of course, take place. It is also clear from the affidavits filed on behalf of the respondents that the Gardai were of the further view that the Registrar was, in any event, precluded by s. 58 of the 2004 Act from proceeding with the marriage due to the fact that a letter of objection had been lodged some minutes before the ceremony was due to take place.

9. On 21st January, 2011, an application was made to me ex parte for an injunction. Although the proceedings were in form expressed to be judicial review proceedings, I took the view that as they were directed in essence towards challenging the validity of Mr. Ads’ current detention they should, in substance, be treated as an application under Article 40.4.2 of the Constitution. I accordingly directed an inquiry into the legality of that detention. I further directed required that Mr. Ads be produced before me and that the detainer certify in writing the grounds for the detention. In addition to the affidavits sworn by Ms. Izmailovic, the arresting Gardai and Mr. Patrick Power (from the Department of Justice, Equality and Law Reform), Detective Chief Superintendent O’Driscoll also gave oral evidence at the hearing before me.
The legality of the arrest
10. The first issue which directly arises is whether the arrest was a lawful one. The relevant power of arrest is contained in s. 5(1) of the 1999 Act which provides:

“Where an immigration officer or a member of the Garda Síochána, with reasonable cause, suspects that a person against whom a deportation order is in force has failed to comply with any provision of the order or with a requirement in a notice under section 3(3)(b)(ii), he or she may arrest him or her without warrant and detain him or her in a prescribed place.”
11. There is no doubt but that the Gardai were in principle entitled to arrest Mr. Ads. He was, after all, a person who had evaded our immigration rules. He had no legal entitlement to be present in the State and he was a person in respect of whom a deportation order was in force. But it is clear that this statutory power of arrest, like all other statutory powers, must be exercised in conformity with basic East Donegal principles (East Donegal Co-Operative Ltd. v. Attorney General [1970] I.R. 317). This means that these powers must be exercised in a reasonable fashion and for the purposes thereby conferred by law.
12. Without wishing to place any a priori constraints on the powers of arresting Gardai, it nonetheless seems to me that the arrest of a person at a registry office just immediately prior to their marriage is one which calls for a high degree of justification. This is especially so when it is clear that one of the motives of the arrest was to ensure that the marriage did not take place. In a free society where the institution of marriage is constitutionally protected (Article 41.3.1), the courts must be especially astute to ensure that agents of the State do not seek to prevent what would otherwise be a lawful marriage, at least without compelling justification.

13. It is, of course, clear that at all material times the Gardaí wished to arrest Mr. Ads because there was a valid deportation order in place. It could not be said that the issue of the evasion of the deportation order was simply a pretext or some form of colourable device for the arrest as happened in The State (Trimbole) v. Governor of Mountjoy Prison [1985] I.R. 550. Had, for example, Mr. Ads been arrested under s. 5 of the 1999 Act some date after his failure to present to the Garda National Immigration Bureau in early December, 2010 following a chance encounter on a public street, such an arrest would – in principle, at any rate – have been perfectly lawful.

14. This, however, is not what actually occurred. While it plain is that the Gardaí independently wished to arrest Mr. Ads for evasion of the deportation order, it is equally clear that the principal motive for the arrest of Mr. Ads at that particular time and place was to ensure that the marriage to Ms. Izmailovic did not take place.

15. Thus, when Detective Chief Superintendent O’Driscoll was asked by Ms. Carroll, counsel for the respondents, why his officers did not permit the marriage to be concluded as it was a relatively short ceremony, the following exchange took place:

16. Q. “[Ms. Carroll] Now it’s been suggested in Ms. Izmailovic’s affidavit at paragraph 14 she says “I state the civil marriage ceremony performed by officers of the notice party is very brief and there is no reason why the respondent could not have waited until after the ceremony” and it has been said by Mr Ó Maolchalain [counsel for the applicants] that it spoiled what should have been a very happy day. Could you not have let the marriage go ahead?…”

17. A. “Well it was I that made the objection and the document was merely served by somebody else, but from my perspective the problem which exists in relation to marriages which are suspected to being entered only for the purpose of obtaining EU treaty rights is one which has exercised government and one which our Minister or the former Minister for Justice and Law Reform has raised concerns about at an EU level. I’m acutely aware of the serious nature of the problem concerned….I think I’m obliged where I have suspicions that marriages are suspected as being bogus or being entered into solely for the purpose of obtaining EU Treaty rights [to inform] the registrar of marriage and letting the appropriate registrar know that I’m conducting an investigation. It would seem to me that it would be irresponsible for me knowing that an order has issued for somebody to be arrested to be removed from the State and suspecting that that person may be taking particular action to prevent that from taking place by way of entering a marriage which is not in fact a true marriage but one just solely for the purpose of obtaining EU treaty rights not to bring it to the notice of the appropriate registrar that, in fact, I have suspicions that I have and particularly in circumstances where the legislation concerned provides a particular mechanism for doing that under s. 58 (1) of the Civil Registration Act 2004 and you know the efforts that we are making to prevent the abuses that we suspect are taking place would be put at naught if we were not to take appropriate action where we had those suspicions.”

18. Mr. Ó Maolchalain subsequently put it to Detective Chief Superintendent O’Driscoll that it would have been possible to permit the marriage “for the few minutes that it would have involved”. Detective Chief Superintendent replied:

A. “Well, if there is a suspicion that the marriage is being entered into for the purpose of obtaining rights to remain in the State when a person would not otherwise acquire those rights it would seem it would not be a very sensible approach not to enforce the order or not to inform the Registrar of Marriages that we had the suspicions we had. Once we had the suspicions we had, and once we informed the Registrar clearly we fulfilled our obligation in relation to the deportation order to remove to arrest the person subject of that order and as in all cases we would be informing the officers of the Minister in the Irish Naturalization and Immigration Service of the circumstances surrounding the arrest and the proposed removal and it would be for officers of the Minister to decide in the prevailing circumstances where the person should ultimately be removed from the State taking into account those circumstances.”
19. As I read that evidence, it is clear that, as I have already stated, the principal reason for the arrest was to ensure that the marriage did not take place, because this might have permitted Mr. Ads to acquire EU Treaty rights and more particularly the rights of residence conferred by Directive 2004/38/EC. Certainly, it has not been suggested that there were operational reasons why the Gardaí could not have permitted the marriage to take place – even under their general supervision – while then instantly effecting the arrest of Mr. Ads.
20. It is, of course, true that a plurality of motives will not in and of itself serve to invalidate an otherwise lawful arrest: see, e.g., the comments of Walsh J. in The People (Director of Public Prosecutions) v. Howley [1989] I.L.R.M. 629 at 634-635. Thus, for example, the mere fact that one of the purposes for which the arrest was undertaken for a purpose which was not legitimate in law will not generally invalidate the arrest if such can be justified for an independent reason which is, in fact, lawful.

21. However, I doubt if the principle in Howley can be applied to a case where the main object of the arrest was to prevent the arrested person exercising a right which, once exercised, would in principle no longer permit his arrest on that basis. Such would be the state of affairs where the applicants lawfully married, so that the non-EU (or non-EEA) national could seek to invoke their EU Treaty rights and associated rights under the 2004 Directive, subject, of course, to compliance with the requirements of the European Communities (Free Movement of Persons)(No.2) Regulations 2006 (“the 2006 Regulations”). This thus requires us next to consider whether the proposed marriage in the present case would have been a lawful one.
Would the proposed marriage have been valid under Irish law?
22. None of the standard impediments to marriage were present in this case. The parties were of full age and capacity, the requisite statutory notice had been given and the couple were, of course, of opposite gender who had never previously married. The objection, however, here is a different one, namely, that the marriage was a marriage of convenience designed to enable Mr. Ads to circumvent the immigration rules.

23. I do not doubt but that Detective Chief Superintendent had reasonable grounds for suspicion. Ms. Izmailovic gave a specific address at a house in Dublin in advance of her registration for a personal public service number, which address was one which was also given by a number of other persons whose marriages were being investigated by An Garda Síochána. That in itself is certainly a matter which would warrant further investigation. Nor do I doubt for a moment but that the problem of marriages of convenience is a serious one. If citizens of other European Union states are being induced on a systematic basis to come to this State to enter into such marriages of convenience for monetary gain, then the shadow of organised crime, people trafficking and prostitution probably cannot be far behind.

24. These considerations notwithstanding, it is nevertheless clear that so far as Irish law is concerned, the marriage of Ms. Izmailovic and Mr. Ads would nonetheless have been a valid marriage – given that there was no impediment to such a marriage within the meaning of s. 2 of the 2004 Act – even if it had been contracted for the purpose of circumventing the immigration laws. This clearly emerges from the decisions of the House of Lords in Vervaeke v. Smith [1983] A.C. 145 and from that of the Supreme Court in H v. S, April 3, 1992.

25. In Vervaeke the appellant, a Belgian national, went through a ceremony of marriage with one William George Smith so that she could thereby acquire British nationality and thereby avoid deportation by reason of her numerous convictions for soliciting. Mr. Smith was a down and out who was induced to go through the ceremony for £50 and a ticket to South Africa. Ms. Vervaeke parted company with him at the door of the registry office and she never met him again save in connection with her application for a British passport. While Ormrod J. in the English High Court described the entire episode as “a horrible and sordid story”, he nonetheless held that the marriage was a valid one, even though there was no intention to cohabit as a man and wife:

“Where a person and a woman consent to marry one another in a formal ceremony, conducted in accordance with the formalities required by law, knowing that it is a marriage ceremony, it is immaterial that they do not intend to live together as man and wife.”
26. This view was later approved by the House of Lords in another stage of the proceedings. As it happens, the Belgian Cour d’Appel had purported to grant a decree of nullity in respect of this marriage – precisely because it was a marriage of convenience – but the House of Lords refused to give effect to that Belgian judgment as it was inconsistent with the earlier decision of Ormrod J.. Lord Hailsham L.C. observed ([1983] 1 A.C. 145 at 152):
“The fact is that in the English law of marriage there is no room for mental reservations or private arrangements regarding the parties’ personal relationships once it is established that the parties are free to marry one another having consented to the achievement of the married state and observed the necessary formalities.”
27. A majority of the Supreme Court took a similar view in H (otherwise S.) v. S., April 3, 1992. Here a young Irish lady met up a young man from another European country on holiday abroad. They had sexual relations towards the end of that holiday. She travelled to see him a year later and sexual relations were resumed in the course of that holiday. A few weeks later she obtained a special employment visa for the United States. She was anxious that he should travel with her, but it was a visa condition that the couple should marry. They agreed to marry on the understanding that they would later divorce once the parties arrived in the United States.
28. They subsequently married a short time later in a registry office in Dublin, even though her parents (with whom they were staying) knew nothing at all about this. There was no wedding celebration and the marriage was never consummated. The husband left Ireland within a few days and it would appear that the parties never met thereafter. The wife commenced nullity proceedings some 15 days after the marriage.

29. A majority of the Supreme Court (Finlay CJ, Hederman and McCarthy JJ.) held that the marriage was a valid one and refused a decree of nullity, even though the principal purpose of the marriage was to facilitate emigration to the United States. As McCarthy J. observed:

“The parties are not to be heard to say what to the witnesses and Registrar appeared to be a perfectly valid marriage was subject to a mental reservation agreed between the parties, so as to invalidate an apparently valid ceremony.”
30. It is clear, therefore, that the marriage of Ms. Izmailovic and Mr. Ads would have been a valid marriage so far as Irish law is concerned, even if it was a marriage of convenience. The Supreme Court’s decision in H. v. S. makes it clear that a marriage which was entered into for the purposes of facilitating immigration into a foreign state was still a valid one, even if (as in that case) the parties had no subsequent contact worth speaking of and never lived together as husband and wife. It must equally follow that a marriage contracted for the purposes of avoiding deportation from this State is nonetheless a valid marriage, assuming that there is no impediment to that marriage within the meaning of s.2 of the 2004 Act.
31. In passing it might be observed that the question of a marriage of convenience probably does not pose the same degree of difficulties for civil law jurisdictions. The Civil Codes of the most of those countries provide for a general prohibition on the abuse of rights in private law as well as public law. It follows, therefore, that in those civilian jurisdictions the exercise of a private right (such as entering into the contract of marriage) for an illegitimate purpose would find no protection in the law of those jurisdictions. A marriage of convenience is therefore generally either void or, at least, ineffective ab initio in such civil law jurisdictions.

32. This was the essentially the reason why the Belgian court found that the marriage of Ms. Vervaeke and Mr. Smith (an extract from which is quoted at [1983] A.C. 145 at153) should be annulled:

“As the parties delusively indulged in a marriage ceremony without in fact really consenting to a marriage, they behaved against public policy. The disturbance of public order, the protection of what belongs to the essence of a real marriage and of human dignity, exacts that such a sham-marriage be declared invalid.”
33. It may also be noted that the Scottish courts – reflecting, perhaps, that civilian tradition in the sphere of private law in Scotland – have held that a marriage of convenience of this kind is invalid: see Orlandi v. Castelli (1961) SC 113, a decision quoted with approval by O’Flaherty J. in his dissent in H. v. S.
34. Of course, the common law traditionally has never provided for a general abuse of rights doctrine of this nature in the sphere of private law, although one can find principles which somewhat resemble this in features of the law of nuisance and estoppel and in some general equitable principles, such as the doctrine of fraud on a power, the duties of fiduciaries and the requirements that the litigant seeking equitable relief must act bona fide and come within clean hands. It is, of course, open to the Oireachtas to legislate for such a doctrine, whether in the sphere of marriage law or more generally.

35. It is, generally nevertheless, true to say that the common law systems and the civil law systems approach the question of motive in the sphere of private law differently. The common law regards motive as (largely) irrelevant in the sphere of private law, whereas in the civilian tradition, motive is relevant where it results in the manifest abuse of a private right for an illegitimate purpose. This difference of approach helps to explain why a marriage of convenience is nonetheless valid in the common law tradition, whereas such would be regarded as a manifest abuse of rights by civilian lawyers and judges. This, in essence, is also the reason why the British and Belgian courts differed over the validity of the marriage of convenience at issue in Vervaeke v. Smith.

36. I would also reject the argument advanced by Ms. Carroll that cases such as Cirpaci v. Minister for Justice, Equality and Law Reform [2005] IESC 42 have any relevance in this context. Cirpaci was concerned with the question of whether the Minister was obliged to give an entry visa to a foreign national who had married an Irish citizen abroad. The issue in cases such as Cirpaci is whether the Minister was obliged to respect the choice of residence made by such a couple, even if this would otherwise frustrate or thwart the proper operation of the immigration rules. This has no relevance whatever to the present case which concerns a quite separate matter, namely, whether the proposed marriage between Ms. Izmailovic and Mrs. Ads would be a valid one. If that marriage took place, then, provided the conditions specified in the 2006 Regulations were satisfied, Mr. Ads would be entitled to stay here as of right and not simply by reason of a discretionary decision of the Minister.
The objection under section 58 of the Civil Registration Act 2004
37. As we have noted, Chief Superintendent O’Driscoll lodged an objection to the proposed marriage with Cavan Registrar pursuant to s. 58(1) of the Civil Registration Act 2004 (“the 2004 Act”) in a letter dated 11th January, 2011. The operative part of the letter is in the following terms:-

“I lodge the aforementioned objection because I suspect that the aforementioned planned marriage to be one of convenience, which I suspect Mr. Mahmoud Ads is entering for the sole aim of circumventing the rules on entry and residence of third-country nationals in this state and so to assist him in obtaining permission to reside in Ireland or another EU Member State.
An investigation has been undertaken which includes the investigation of suspected criminality associated with a number of marriages involving third-country nationals, who have recently…. entered into this state and also a number of proposed marriages in respect of which an intention to marry has been notified pursuant to the provisions at section 48 of the Civil Registration Act 2004. The proposed marriage of the above mentioned Mr. Mahmoud Ads to a national of an EU Member State is being investigated in the course of the said investigation.”

38. The question which thus arises is whether the ground of objection – a suspected marriage of convenience designed to circumvent the immigration rules – actually comes within the scope of s. 58(1) of the 2004 Act. This is of some importance because the respondents maintain that the marriage could not have proceeded in any event by reason of the objection which was lodged under this sub-section at the last minute by Detective Garda Moran on behalf of Detective Chief Superintendent O’Driscoll.
39. Section 58 of the 2004 Act provides:-

“(1) A person may at any time before the solemnisation of a marriage lodge an objection in writing with any Registrar and the objection shall state the reasons for the objection…….
40. If one looked at this sub-section in isolation, one might be forgiven for thinking that the power to object to a proposed marriage was a general and free standing one. But, as we shall shortly see, once the sub-section is read in context with the rest of the section (as it must be), then it emerges from the provisions of s. 58(3) and s. 58(4) that the power to object is, in fact, confined to impediments to marriage in the sense in which that term has been traditionally used and which is reflected in what amounts to a definition of that term in s.2(2).
41. Section 58(3) and s. 58(4) of the 2004 Act respectively provide:-

“(3) If the registrar who receives an objection under subsection (1) is satisfied that the objection relates to a minor error or misdescription in the relevant notification under section 46 which would not constitute an impediment to the marriage, the registrar shall—
(a) notify the parties to the intended marriage of the objection,
(b) make such enquiries as he or she thinks fit,

(c) if the marriage registration form has been given to one of those parties, request its return to the registrar and correct it and the notification and make any necessary corrections to any other records relating to the marriage, and

(d) give the corrected marriage registration form to one of the parties to the marriage.

(4) If the registrar who receives an objection under subsection (1) believes that more than a minor error or misdescription exists in the relevant notification under section 46 and that the possibility of the existence of an impediment to the intended marriage concerned needs to be investigated, he or she shall refer the objection to an tArd-Chláraitheoir for consideration and, pending the decision of an tArd-Chláraitheoir, he or she shall—
(a) notify the parties to the intended marriage that—

(i) an objection has been lodged and of the grounds on which it is based,
(ii) the objection is being investigated,

(iii) the solemnisation of the marriage will not proceed until the investigation is completed,

(b) if the relevant marriage registration form has not been issued, suspend its issue,
(c) if the marriage registration form has been issued, request the party to the marriage to whom it was given to return it to the registrar,

(d) notify the solemniser of the marriage that an objection is being investigated, and

(e) direct him or her not to solemnise the marriage until the investigation is completed, and the solemniser shall comply with the direction.

(5) Where an objection is referred to an tArd-Chláraitheoir pursuant to subsection (4), he or she shall make a decision on the objection as soon as practicable.”
42. Section 2(2) of the 2004 Act provides that:-

“For the purposes of this Act there is an impediment to a marriage if –
(a) the marriage would be void by virtue of the Marriage Act 1835, as amended by the Marriage (Prohibited Degrees of Relationship) Acts 1907 and 1921,
(b) one of the parties to the marriage is, or both are, already married,

(c) one or both, of the parties to the intended marriage will be under the age of 18 years on the date of solemnisation of the intended marriage and an exemption from the application of section 31(1)(a) of the Family Law Act 1995 in relation to the marriage was not granted under section 33 of that Act,

(d) the marriage would be void by virtue of the Marriage of Lunatics Act 1811, or

(e) both parties are of the same sex.”

43. The effect of s. 2(2) is to provide for a definition of what constitutes an impediment to marriage. As we shall now see, s. 58 must be understood by reference to that particular definition.
44. In effect, the scheme of s.58 is such that if the Registrar is satisfied that the objection relates to a “minor error or misdescription in the relevant notification under s. 46 which would not constitute an impediment to the marriage”, then the solemnisation of the marriage can proceed with the appropriate correction. Section 46 refers to the notice provisions which all couples intending to marry are required to furnish. If, therefore, the Registrar is satisfied that the objection relates to a minor error in the notification such that, once rectified, there is in fact no impediment to the marriage, then he or she is required to correct the appropriate records (including the notification of the marriage) and allow the marriage to proceed.

45. If, however, the Registrar is satisfied that more than a minor error or misdescription exists in the relevant notification under s. 46 and that “the possibility of the existence of an impediment to the intended marriage concerned needs to be investigated”, the matter must be referred to an tArd-Chláraitheoir for consideration and, pending the decision of an tArd-Chláraitheoir, the solemnisation of the marriage will not proceed until the investigation is completed.

46. The important thing here to note, however, is that the objection must relate to an “impediment” to the proposed marriage. This term has always had a well understood meaning in the sphere of family law and the law relating to marriage: it refers to matters such as capacity, age, marital status and gender and this is reflected in the definition of what constitutes an impediment for this purpose in s. 2(2) of the 2004 Act. There is, for example, an impediment to the marriage of A to B if A is already married, save where that marriage has been annulled or the marriage dissolved by a decree of a court of competent jurisdiction. There is likewise an impediment to the marriage of C to D if the marriage would be within the degrees of affinity prohibited by law.47. As we have already seen, there was no impediment in this sense to the marriage of Ms. Izmailovic and Mr. Ads. Even if Detective Chief Superintendent O’Driscoll’s objection that this was a marriage of convenience were held to be well founded, this would be irrelevant as a matter of law so far as the validity of the proposed marriage was concerned.

48. In any event, as we have already noted, it is important to stress that the power to object contained in s.58 of the 2004 Act is confined to impediments to marriage in the sense just indicated. If it were otherwise, it would mean, for example, that any person could object on any ground at any time right up to the very hour of the wedding and that in those circumstances, save in those cases of minor errors of misdescription, the Registrar would be precluded by the terms of s. 58(4)(a)(iii) from proceeding with the marriage ceremony.

49. But s. 58 does not confer a free standing power of objection by reference, for example, to some supposed mental reservation on the part of the couple, such as that they were only marrying for immigration reasons. If that were the case then, by the same token, well meaning relatives could object to a proposed marriage on the ground, for example, the bride did not really love the groom and that she was only marrying him for financial reasons or because she simply wanted to escape from a difficult home environment.

50. If such a ground of objection were to be admitted, then this would open up a Pandoras’s box of mischief and abuse which none could easily close. It would be easy to conjecture circumstances in which, for example, a jilted lover, maddened by jealously, would object on grounds of pure spite to a proposed marriage. But this would probably be as nothing to the volume of objections on the ground of the general unsuitability of the couple for each other which anxious parents and other well-intentioned relatives and friends might be tempted to lodge. If this sort of generalised objection were to be permitted, then, over time, the system of marriage registration envisaged by the 2004 Act might prove unworkable.

51. It should be recalled, of course, that s. 58(4)(a)(iii) provides that, once the objection is lodged and the Registrar is satisfied that it is more than a mere technical error or misdescription, then the marriage cannot be solemnized. No more than the courts, the Registrar – if one may adapt the graphic words of Black J. in Provincial Bank v. McKeever [1941] I.R. 471, 485 – “possesses no X-Ray contrivance that can lay bare the workings of the human mind.” In practice, therefore, every complaint of this kind would necessitate a potentially complex inquiry into the general circumstances, motives and intentions of the couple, so that the mere lodging of an objection would have the effect of preventing the marriage. Again, such a construction of the section would play into the hands of the mendacious, the busy body and the crank. Thus, for example, the discarded lover, determined on revenge, could wait for the last moment before coolly lodging a letter of objection with the Registrar just as the first of the wedding guests was scheduled to arrive. The potential for abuse would be endless.

52. Nor could it be correct that the marriage of a couple could be thwarted in these circumstances by the lodging of an objection “by any person” at “any time”, especially if the effect of this would be more or less automatically to compel the Registrar to postpone the solemnisation of the marriage. It would mean that, by lodging such a last minute objection, the objector could obtain the equivalent of an injunction preventing the marriage without any notice to the bride and groom to be or without giving them an effective opportunity to be heard on this point in advance of the wedding day. Given the lack of essential procedural safeguards, the constitutionality of such a procedure must be open to question in light of the Supreme Court’s decision in DK v. Crowley [2002] 2 I.R. 744.

53. When I raised this very possibility in oral argument with Ms. Carroll, she responded by saying that in those circumstances the couple might well be able to sue the objector for damages for breach of constitutional rights. That may well be correct: see, e.g., by analogy the comments of Murray J. in CK v. JK. (Foreign divorce: estoppel) [2004] IESC 21, [2004] 1 IR 224 at 252-256. But it requires little imagination to envisage the overwhelming sense of distress and outrage which a couple would feel if the law permitted their wedding day effectively to be destroyed in this fashion at the stroke of a pen. They would find little comfort in the reassurance that they could thereafter sue the objector for damages. After all, the State’s primary duty is to respect constitutional rights (Article 40.3.1) and to guard the institution of marriage (Article 41.3.1). The State would have singularly failed in its constitutional duties in this regard if it permitted an open-ended ground of objection to a proposed marriage to be made at the last minute, without the necessary procedural safeguards, especially in circumstances where the lodging of such an objection would inevitably have a suspensive effect so far as the proposed marriage is concerned.

54. For all of these reasons, it is clear that the right to object is confined to the traditional impediments to marriage which are re-stated in s. 2 of the 2004 Act. These are generally matters which are readily ascertainable, such as whether the parties are of full age or whether the marriage would be within the prohibited degrees. It is true that the question of whether one of the parties to the proposed marriage would have the necessary mental capacity – which would be an impediment to marriage in the light of s. 2(2)(d) of the 2004 Act – might not be a straightforward issue, but even then an objector on this ground is required to furnish a “certificate of a registered medical practitioner supporting the objection”: see s. 58(11) of the 2004 Act.

55. Any other conclusion would lead to a far-reaching change in the law of marriage which, in many respects, would be unworkable and intrusive. Given the presumption against unclear changes in the law, it is plain that such a construction of s. 58 would not be warranted in the absence of clear words which compelled this result: see, e.g., the comments of Henchy J. in Minister for Industry and Commerce v. Hales [1967] I.R. 50 at 75-77.

56. In short, therefore, Detective Chief Superintendent O’Driscoll’s objection that the marriage would be a marriage of convenience would, even if well founded, not be a valid one for the purposes of s.58 of the 2004 Act. It follows that (i) that the proposed marriage would be a valid marriage in Irish law and (ii) that the Registrar had no jurisdiction in the circumstances to refuse to solemnise the marriage.
Free movement rights under European law
57. The 2006 Regulations transpose the provisions of Directive 2004/38/EC (“the 2004 Directive”). The 2004 Directive itself effectively consolidated much of the earlier Community legislation in this area.

58. Subject to certain exceptions which we will presently consider, Article 3 of the 2004 Directive applies to spouses of all Union citizens “who move to or reside in a Member State other than that of which they are a national.” Had the marriage between Ms. Izmailovic and Mr. Ads taken place, then in principle he would also have been entitled to reside in Ireland. In this context, it is clear from the decision of the Court of Justice in Case C-127/08 Metock [2008] ECR I-6241 that the fact that Mr. Ads had no legal entitlement to be in the State or that he was the subject of a deportation order would be irrelevant. As the Court made clear in Metock:

“Article 3(1) of Directive 2004/38 must be interpreted as meaning that a national of a non-member country who is the spouse of a Union citizen residing in a Member State whose nationality he does not possess and who accompanies or joins that Union citizen benefits from the provisions of that directive, irrespective of when and where their marriage took place and of how the national of a non-member country entered the host Member State.” (italics supplied).
59. If, however, the marriage was a marriage of convenience that would be relevant so far as the 2004 Directive concerned. Article 35 of the 2004 Directive provides that:
“Member States may adopt the necessary measures to refuse, terminate or withdraw any right conferred by this Directive in the case of abuse of rights or fraud, such as marriages of convenience. Any such measure shall be proportionate and subject to the procedural safeguards provided for in Articles 30 and 31.”
60. The only measures of this kind adopted by this State are to be found in Article 2(1) and Article 24 of the 2006 Regulations. This is of some importance, because it is plain that a Member States cannot rely on a wider power in a Directive if the power in question is not actually provided in the domestic regulations designed to transpose the Directive in question. If it were otherwise, it would mean that such a Directive would have a form of horizontal direct effect: see, e.g., the judgment of the Supreme Court in Albatross Feeds Ltd. v. Minister for Agriculture and Food [2006] IESC 52, [2007] 1 IR 221.
61. Article 2(1) provides that the word “spouse” “does not include a party to a marriage of convenience.” Article 24 is headed “Cessation of Entitlements” and it provides that:

“(1) Where it is established that a person to whom these Regulations apply has acquired any rights or entitlements under these Regulations by fraudulent means then that person shall immediately cease to enjoy such rights or entitlements.
(2) In these Regulations, “fraudulent means” includes marriages of convenience.”

62. It would seem that all decisions relating to residence and entitlement to reside in the State are made by the Minister: see, e.g., Article 4 and Article 5. Article 6(1) permits the spouse of a Union citizen to reside in the State provided that they hold a valid passport and have not become “an unreasonable burden on the social welfare system of the State.”
63. Returning to Article 24, while it is not absolutely clear whose task it is to establish that the marriage is a marriage of convenience, it would seem that this task of review falls to be performed by a senior official of the Minister in the manner envisaged by Article 21 of the 2006 Regulations. This would be the interpretation most consistent with the procedural safeguards provisions of Article 31 of the Directive.

64. What is clear, however, is that this State has not asserted the right to prevent the solemnisation of (otherwise valid) marriages which later transpire to be marriages of convenience. Of course, it would be open – again in principle – to the Oireachtas to provide by law that a marriage of convenience was not a valid marriage for the purposes of our own law of marriage or that a marriage of convenience would represent an impediment to marriage for the purposes of s. 2 of the 2004.

65. What is clear, however, is that as the law stands any review of the marriage to ascertain if it is a marriage of convenience is one which, having regard to the terms of the 2006 Regulations, can only take place after (and not before) the fact of solemnisation. This is clear from the actual language of Article 24 of the 2006 Regulations itself, since it provides that where it is established that a person to whom the Regulations apply “has acquired any rights or entitlements under these Regulations by fraudulent means” then “that person shall immediately cease to enjoy such rights or entitlements.” The italicised words thus envisage an administrative review of whether the marriage is a marriage of convenience after the event.

66. In this regard, it may be noted that In re Mbebe [2008] NIQB 108 Gillen J. quashed a decision of Immigration Officers who had refused to permit a South African national to enter Northern Ireland, even though she held a UK residence card and was married to a Portuguese national who, she alleged, was living and working in the United Kingdom. The immigration officers maintained that this was a marriage of convenience and that the residence card was invalid.

67. Gillen J. first observed that:

“It seems to me that prima facie therefore [the applicant] has enjoyed the benefit of a right conferred by the Directive and the 2006 Regulations. A Member State of the EC may of course terminate or withdraw that right in the case of abuse of rights or fraud such as a marriage of convenience. In other words, if information comes to light that reveals that the right conferred by the Directive has been achieved by fraud, such as a marriage of convenience, then that prima facie right may be withdrawn under Article 35 of the Directive. However such a measure must be proportionate and must be subject to the procedural safeguards set out in Articles 30 and 31.”
68. Gillen J. then went on to conclude thus:
“In my view, the approach of the respondent in this case has been all too perfunctory and has failed to recognise the importance of the right conferred by the terms of the Directive. Parliament can never have intended, and the Directive never envisaged, such a serious and weighty decision to withdraw that right being taken without thorough, informed and fair investigation. A decision that a marriage has been one of convenience once the benefit thereunder has been conferred should not be taken without the appropriate consideration and safeguards provided by Article 35 of the Directive…..
Implementation of Article 35 of the Directive together with the European casework instructions is the appropriate path to follow where prima facie a right has been conferred under EU law. In my view, the facts in this case of the applicant’s marriage and her subsequent history prima facie confers on her an automatic EC right to remain and a decision that that right had been obtained fraudulently can only be arrived at under the scrutiny of the protections afforded by Article 35 of the Directive.”

69. I respectfully agree with this analysis, which bears out the conclusion that the review of whether the marriage is a marriage of convenience must, of necessity, take place after the event and must also be hedged in with appropriate procedural safeguards. It follows that, no matter how well intentioned, An Garda Síochána are not empowered to prevent the solemnisation of a marriage on the grounds that they suspect – even with very good reason – that the marriage is one of convenience. Such a marriage would be, in any event, for the reasons stated above, a valid marriage for all purposes other than EU Treaty rights. The question of whether the non-EU (or, as the case may be, a non-EEA spouse) could be deprived of the prima facie benefits of the marriage for the purposes of the 2006 Regulations is one which is committed to a senior official of the Minister by Article 21 of the Regulations in the manner envisaged by Article 31 of the Directive.
Conclusions
70. In summary, therefore, I have concluded that:

A. The principal reason for the arrest was to prevent the marriage so that Mr. Ads could not acquire the benefit of EU Treaty rights under the 2006 Regulations.
B. The marriage would have been valid as a matter of Irish law even if it were a marriage of convenience.

C. The question of whether the marriage was a marriage of convenience could only have been established by a senior official of the Minister after the fact in accordance with Article 21 of the 2006 Regulations.

D. There was no impediment to the marriage in the sense envisaged by s. 2 of the 2004 Act so that Detective Chief Superintendent O’Driscoll’s letter of objection was not a valid objection within the meaning of s. 58(1).

E. The principle in Howley does not extend to a case such as the present one where the principal object of the arrest was to prevent the arrested person exercising a right which, once exercised, would prima facie regularise the position of the person such that he would not be entitled to be arrested on that very ground.

71. In the special circumstances of this case I am therefore constrained to hold that the arrest of Mr. Ads was unlawful. I will therefore direct, pursuant to Article 40.4.2 of the Constitution, that he be released forthwith.
72. I quite appreciate that the decision in this case may present the authorities with very considerable difficulties in this problematic area. But, as I indicated at the hearing, if the law in this area is considered to be unsatisfactory, then it is, of course, in principle open to the Oireachtas and, if needs be, the Union legislature to address these questions. As this decision in its own way illustrates, the problems encountered here are difficult ones and present complex questions of public policy in relation to marriage and immigration. These, however, are ultimately policy questions which only the Oireachtas and, again if needs be, the Union legislature can resolve.

A. M. N. v J. P. C.

[1988] I.L.R.M. 170
(Barron J)

In these proceedings the petitioner seeks nullity on the ground of the respondent’s inability to consummate their marriage. The parties were married in their local Roman Catholic Church on 18 March 1968. The petitioner had met her husband when she was 13 and they became engaged when she was 17. By this stage they were going out together every evening and seeing each other also at lunchtime. She was welcomed into her husband’s family and got on very well with his parents. He was religious and went to Mass every day. There was no physical intimacy between the parties during courtship. The respondent regarded this as wrong because it led to temptation. He was not prepared to contemplate sex outside marriage nor would he talk about it. On one occasion when the petitioner made an approach which might have led to a sexual relationship he told her never to do it again. The petitioner sought advice about this part of their relationship from her local priest and he suggested that it might be due to nervousness.

When they married they came to Dublin for their honeymoon. The respondent had arranged their accommodation and had acquired a room for them with two single beds. The petitioner tried to induce him to have intercourse with her by joining the two beds together but with no result. They returned to their home town where they had rented a flat. All efforts on her behalf to have intercourse were repulsed. They were in this flat for between six to eight weeks and then moved in with her mother. Matters were no better at her mother’s and on any suggestion by her that they should have intercourse he became aggressive. She asked him to see the local priest and she also went to her doctor but he refused all help. She wanted to go to marriage guidance counsellors but again he refused. From in or about the time of their marriage the respondent started to drink and gradually was drinking more and more heavily. Eventually the petitioner left the respondent sometime in the month of December 1970. Following the break-up of their marriage the petitioner applied for a church annulment. This application was successful and she obtained the annulment of her marriage in the month of December 1971.

In the year 1975 the petitioner met C. S. Having obtained her church annulment she believed that she was free to marry. The parties were married in the local Roman Catholic Church by a ceremony which took place on 31 July 1976. The petitioner has two children by C. S., one a boy who is now aged seven and the other a girl now aged four. This relationship ran into difficulties and the parties broke up sometime in the year 1982. The petitioner came to Dublin with her two children but without letting C. S. know where she had gone. When he eventually discovered her whereabouts he sought access to the two children. She sought legal advice and explained her circumstances to her solicitor. She appears to have been advised that as she was not legally married to C. S. he had no rights to see the two children. C. S. was justifiably incensed by this attitude on the part of the petitioner and brought a complaint against her in the District  Court that she had committed bigamy contrary to s. 57 of the Offences Against the Person Act 1861. These proceedings are still pending. Subsequently proceedings were brought on behalf of C. S. for access to the two children and an order granting him access was made in the Dublin Circuit Court.

The respondent did not appear nor was he represented at the hearing of this petition. I am satisfied that this was not as a result of any collusion between the parties and that there is none. Evidence was given on behalf of the petitioner, by the petitioner herself and by medical practitioners on her behalf. Having heard this evidence I adjourned the matter to consider whether or not C. S. should be invited to give evidence. Since his status would be affected by the granting of the relief sought it seemed to me proper that he should be notified of the proceedings so that he could be heard if he so wished.

He did appear and gave evidence. He corroborated the evidence as to his relationship with the petitioner and the consequences of the break-up of their relationship, though he denied the petitioner’s allegations as to the cause of that break-up. He also sought to give hearsay evidence as to what the respondent had told him concerning the issue of consummation or non-consummation of the marriage.

The medical evidence which I heard was that of Dermot Moloney, a gynaecologist, who said that he had examined the petitioner in December 1970 and was satisfied that at that date she was virgo intacta. He established that she had not got vaginismus and that she was physically satisfactory and capable of sustaining normal sexual intercourse. Evidence was also given by Morgan Costello the general practitioner who examined the petitioner on 8 May 1971. He said that at that date her hymen was intact but he found marked vaginismus which prevented internal examination. I am satisfied on this evidence and on the evidence of the petitioner herself that the marriage was never consummated. The reason for the failure to consummate the marriage was that the respondent regarded the act of sexual intercourse as being wrongful and something which he found repugnant. He was unable to bring himself to perform the act and was unable psychologically to overcome this attitude.

Upon this view of the evidence the petitioner is prima facie entitled to the relief she seeks. C. S. submits that she should be denied this relief upon two grounds. He contends that there has been excessive delay in coming to this Court. Undoubtedly there has been considerable delay, but I accept the petitioner’s evidence that she was unaware that her marriage had not been annulled in the civil law and that she did not become aware of this until she was so advised by her solicitor sometime in the year 1983. She only then became aware of the need for a decree of nullity from this Court and that she might legally be entitled to obtain such relief. Once she received this advice she acted promptly.

It is also submitted that the petitioner by denying her marriage to C. S. approbated her marriage to the respondent. Certainly if the evidence established that her denial was so intended then further consideration would require to be given to this contention. However, I am satisfied that no such intention was ever evinced. Her denial of her marriage to C. S. was legally correct and made in the  mistaken belief that this denied him a right to access to his children. I am satisfied that there was no intention to indicate that she intended to return to the respondent or to give up her right to apply to this Court for the relief which she now seeks.

In my view the petitioner should not be denied the relief she seeks on either of the two grounds raised by C. S. Further it seems to me that it is in the public interest that the relief should be granted. Not only will such relief legalise the marriage entered into between the petitioner and C. S. but will also establish that the two children of this now legally established marriage are and have always been legitimate. There will be a decree of nullity on the grounds of the incapacity of the respondent to consummate the marriage.

 

M. O’M. (orse. O’C.) v. B. O’C.

[1996] IR 210

Hamilton C.J.
18th April 1996

I agree with the judgment about to be delivered by Blayney J.

O’Flaherty J.
I also agree with the judgment to be delivered by Blayney J.

Blayney J.
This is an appeal in a nullity suit against the decision of the High Court refusing to grant the relief sought.
The petitioner is the wife and the respondent is the husband. They were married on the 16th August 1985 in the Roman Catholic Church at C. Two children were born to the marriage: a son on the 6th August, 1987, and a daughter on the 8th December, 1988. Since in or around Christmas, 1989, the parties have been virtually separated though at the date of the hearing of the petition in February, 1994, they were both still living in the family home.
The wife presented her petition on the 20th June, 1990, and by order of the Master of the High Court made on the 10th April, 1991, it was directed that the following were the issues to be tried.
1. Were the petitioner and the respondent able to enter into and sustain a normal functional lifelong marital relationship with each other by reason of their respective states of mind, mental conditions, emotional developments and personalities at the date of the marriage?
2. Did the petitioner give a full, free and informed consent to the said marriage?
3. Did the respondent give a full, free and informed consent to the said marriage?
While these were the issues directed to be tried, it is clear from the transcript of the evidence given at the hearing and from the judgment of the learned trial judge that the hearing in the High Court was concerned solely with the first and second issues. The learned High Court Judge did however express his view on the third issue also but it had never been contended by the husband that he had not given a full, free and informed consent to the marriage.
Having reviewed the facts and recited the medical evidence, the learned trial judge expressed the conclusion he had reached as follows:
“The Court does not wish to apportion any blame. Indeed it would be impossible so to do. However, the Court is satisfied that both parties were capable of entering into, maintaining and sustaining a proper marriage relationship. Difficulties arose, particularly after the birth of the second child, . . . The petitioner has to satisfy me, at least as a matter of probability, that this marriage was null and void from its inception. I am not satisfied, as a matter of probability that such a case has been made out and in the circumstances refuse this petition.

I find that the petitioner and the respondent were able to enter into and sustain a normal functional lifelong marital relationship with each other. I also find that the petitioner gave a full, free and informed consent to the said marriage and that the respondent gave a full, free and informed consent to the said marriage.”
The notice of appeal sets out five grounds on which it is contended that the decision of the High Court should be reversed. The first four grounds are all concerned with the first issue, namely, whether the husband and wife were capable of entering into and sustaining a normal lifelong marital relationship. It is contended that they were incapable of doing so by reason of their substantially conflicting personalities, their perceptions of life and their immaturity at the date of the marriage; it was also contended that the learned trial judge failed to give due weight to the psychiatric and medical evidence to the effect that neither party was capable of entering and sustaining a normal marriage relationship with the other and gave undue weight and attached undue relevance to the statement made by Dr. O’S. that to grant a decree on the grounds of”personality complex” would result in chaos, so that the conclusion drawn by the learned trial judge was erroneous. On the second issue it was contended that the learned trial judge erred in law in holding that the wife gave a full, free and informed consent to the marriage in that there was uncontroverted evidence that the wife was unaware at the time of the marriage that the husband had attended a psychiatrist prior to the marriage and that she would not have agreed to marry him if she had known this.
Before dealing with the issues raised it is necessary to set out briefly the facts as found by the learned trial judge.
At the time of the marriage the husband was aged thirty seven and the wife thirty two. On leaving secondary school the husband had decided to become a priest. He spent one year in St. Patrick’s College, Maynooth, which he disliked, and six years in the seminary in C., where he was very happy. After ordination in 1972 he worked for four years as a curate but found the life lonely and difficult and he came to the conclusion that he had been mistaken in thinking that he had a vocation. At the suggestion of his Bishop he went to D. for one year to get a post-graduate qualification in religious education and he then applied to be laicised. The laicisation process was commenced in 1976 and was not completed until 1981. In 1977, the husband commenced working as a teacher of religious education in a school in C. and still held that post at the date of the hearing in the High Court and in addition to teaching religious education he was also teaching media studies.

In 1976, the husband was sent by his Bishop to a psychiatrist, Dr. O’S., and the latter helped him through the difficult period while he was waiting for his laicisation to be completed. Between 1976 and 1982 the husband attended Dr. O’S. between three and six times each year, apart from 1978, when he saw him ten times.
The wife is a dental surgeon. She qualified about 1978 and in 1984 she was living and practising in the Midlands. Her parents lived in Cork.
The parties met at a night club in Cork some time early in 1984. They had an ordinary, uneventful courtship. They became engaged in January, 1985, and were married in August of the same year. They lived at first in the husband’s house. The wife sold her house in the Midlands. They then moved to a different house in C. The learned trial judge found the following facts in regard to the relationship of the parties in the early years of their marriage:
“During the courtship, marriage and the honeymoon and indeed the first two years of the marriage the petitioner continued working in the Midlands and the respondent worked in Cork. This produced tensions because each left early in the morning and returned late in the evening and had very little time together. He wanted to establish a nuclear family but she wanted to spend every weekend with her parents and the rest of her family. They found this difficult. Their tiredness and their attitudes to the weekends produced tensions and stress. The first child was colicky, the result was that it was hard for the parents to get a full night’s sleep. The respondent was obsessive and brought his son to specialists when in the view of his wife their G.P. would have been adequate. There were scenes of violence which apparently were followed by scenes of regret. The petitioner complains that he did not want to go out anymore and that they had few visitors. He can lose his temper for the least thing. Once he blamed her for the camera not working and shouted at her. He abused her mother for putting wine in front of her when she was pregnant. He objected to his wife working, particularly having to travel the distance to and from work. She would not have married him if she had known that he had attended a psychiatrist for a protracted period during his laicisation. She agrees that he wanted to spend Christmas at his own home. However, she had a brother home from abroad and insisted on them going (where they had always gone) to her mother. She felt that she had an unfair share of responsibility for the children, home and house. She wanted a second child and she remembers getting an eternity (or possibly maternity) ring after the child’s birth and agrees there was a veneer of normality. He was studying for various degrees. He was not keen to bring the children to baby-minders. He was a very keen photographer. She objected to his activities in relation to photography. She also objected to him erecting an aerial which would take up most of the garden. He was very keen on radio. He had established a media course in the school. She also objected to him watching sport on television.”
The learned trial judge referred also to a row between the husband and his brother-in-law on Christmas Day in the home of his wife’s parents, as a result of which the husband was asked to leave the house. He was immediately contrite and tried to shake hands and did shake hands with some of the party. The wife told him she was leaving him. Six months later she instituted the present proceedings. The husband went back to see Dr. O’S. in February, 1990. Dr. O’S. also saw the wife. His view was that if he could exclude in the case of the husband “a psychosis of a paranoid nature” (which he subsequently did) he would recommend that they would both attend a professional for marriage guidance for a short while before deciding about the future of the marriage, but the wife was not interested in marriage counselling. She only went once or twice, while the husband went quite a number of times. The experts called were of the opinion that counselling might have worked and would have been a good option.
Having set out in his judgment the facts which I have summarised, the learned trial judge then went on to recite the expert evidence given by the medical witnesses: Dr. F., who was called by the wife, and Dr. O’S. and Mr. H., a senior clinical psychologist with the Southern Health Board in Cork, who were called by the husband. In addition to the oral evidence given by these witnesses, reports prepared by Dr. F., a letter written by Dr. O’S., and a report prepared by Mr. H. were admitted in evidence. A difficulty arises, however, in regard to how the Court should view the medical evidence as the learned trial judge did not expressly indicate what part of the evidence he was accepting and what part he was rejecting. On behalf of the wife, Mr. Shatter submitted that the Court should assume that the learned trial judge accepted whatever evidence he did not actually reject, but it is not possible to approach the matter in this way as there was a clear conflict in some parts of the evidence. For example, on page 7 of his judgment the learned trial judge states that Dr. F. had expressed the opinion that the husband did not have the capacity, at the time of the marriage, “to sustain a valid marriage relationship” with the wife. And on p. 10 of his judgment, the learned trial judge cited the evidence of Mr. H. who had stated in regard to the husband that in his opinion there was “no evidence of a major personality disorder which would prevent him from either entering into or maintaining a normal stable relationship.” It is clear that the learned trial judge could not have accepted both these statements since they are so obviously conflicting. In the circumstances, the only way one can determine what evidence the learned trial judge accepted is to look at his conclusion and it is clear from this that he must have accepted Mr. H.’s evidence and rejected that of Dr. F.
Or, to approach the matter in a different way, it seems to me that applying the principle laid down in Hay v. O’Grady [1992] 1 I.R. 210, the correct test to apply to the conclusion reached by the learned trial judge on the first issue is to determine whether there was credible evidence to support it. If there was such evidence, then this Court cannot disturb the conclusion reached by the learned trial judge. And it seems to me that there was. Mr. H. who is a senior clinical psychologist, and whose qualifications as an expert were not questioned, gave clear evidence that in his opinion the husband was capable of entering into and sustaining a normal marriage relationship. There was also the evidence of Dr. O’S. which was cited by the learned trial judge at p. 9 of his judgment:
“I think that personality complex as a ground for nullity results in chaos. If the parties here had worked at their marriage, they might not be here today. I felt a trained psycho-therapist was necessary because of subtlety which an ordinary counsellor might miss.”
Mr. Shatter in effect asked the Court to reject this evidence and prefer that of Dr. F., but that is the function of the court of first instance, which has seen and heard the witnesses and not the function of this Court. Once there is credible evidence to support the finding of the learned trial judge on the first issue, which in my opinion there is, this Court cannot disturb it. The fact that there may have been evidence which, if accepted by the learned trial judge, would have supported a contrary conclusion, is immaterial. The question to be considered is whether there is credible evidence to support the actual conclusion reached by the learned trial judge and I am satisfied that there was.
I now turn to the second issue, whether the wife gave a full, free and informed consent to the marriage. The point to be considered is a very net one but one of great difficulty. It is concerned solely with whether the consent given by the wife was an informed consent. It is not suggested that the wife’s consent was not freely given. The case being made by the wife is that it was not an informed consent because she had not been told by the husband that he had attended Dr. O’S. between 1976 and 1982 while his application for laicisation was being processed. The learned trial judge dealt with this issue in a single sentence at the end of his judgment:
“I also find that the petitioner gave a full, free and informed consent to the said marriage . . .”
The learned trial judge did not, however, point to any particular findings of fact as supporting this conclusion. Mr. Shatter submits that there is no evidence to support it but on the contrary that there was evidence which led inexorably to the opposite conclusion.
It seems clear from the decision of this Court in N. (orse. K.) v. K. [1985] I.R. 733 that for a marriage to be valid it is necessary that the consent of each spouse, in addition to being freely given, should be an informed consent. Finlay C.J. said in his judgment at p. 742:
“Consent to the taking of such a step [i.e. entering into a valid marriage] must, therefore, if the marriage is to be valid, be a fully free exercise of the independent will of the parties.
Whilst a court faced with the challenge to the validity of a marriage, based on an absence of real consent, should conduct its enquiry in accordance with defined legal concepts such as duress or, what has been described by O’Hanlon J. as “the related topic of undue influence”(at page 281) these concepts and the legal definition of them must remain subservient to the ultimate objective of ascertaining, in accordance with the onus of proof, whether the consent of the petitioning party was real or apparent.”
Griffin J. said in his judgment at p. 751:
“It is therefore of the utmost importance that the contract of marriage should be entered into with the full and free consent of the contracting parties, and if, as the Chief Justice has stated in his judgment, the apparent decision to marry on the part of one of the parties has been caused to such an extent by external pressure as to lose the character of a fully free act of that party’s will, no valid marriage has taken place.”
Hederman J. said in his judgment at p. 753:
“A personal and full internal and informed consent is essential to a valid marriage.”
McCarthy J. at p. 754 of his judgment refers to:
“The need of a true voluntary consent, based upon adequate knowledge and freed from vitiating factors commonly described as undue influence or duress particularly those emanating from third parties.”

On p. 755 of his judgment he said:
“The test – whether or not each party to the contract brought an informed and willing consent to it – in my view, it is a subjective one, the burden of proving which lies upon the petitioner for a declaration of nullity.”
What has to be determined, accordingly, is whether the consent of the wife was an informed consent, a consent based upon adequate knowledge, and the test is a subjective one, that is to say, the test is whether this spouse, marrying this particular man, could be said to have had adequate knowledge of every circumstance relevant to the decision she was making, so that her consent could truly be said to be an informed one.
The wife relies on a single matter as establishing that she did not have adequate knowledge of all the relevant circumstances. The evidence relied on as supporting her case is contained in two answers which she gave in her direct evidence on the first day of the hearing:
“81. Q. What was your reaction to this when you heard that he had been attending a psychiatrist for seven years?
A. I was completely stunned. It certainly, looking back, explained a lot that was unexplained previously. But it came as a complete surprise to me, I was given no inkling of that.
82. Q. You have said you weren’t aware of this before the marriage, if this had been discussed with you before the marriage what would your attitude to marrying B.O’C. have been.
A. I certainly would not have married him because those kind of psychiatric illnesses, you get remission but you never get a cure.”
The learned trial judge would appear to have accepted this evidence. He said at pp. 3/4 of his judgment in the course of setting out the facts of the case:
“She would not have married him if she had known that he had attended a psychiatrist for a protracted period during his laicisation.”
Further, it is not denied by the husband that he did not tell the wife before they were married that he had attended Dr. O’S . . . between 1976 and 1982. So the issue comes down to this: Was this a relevant circumstance such that the failure to disclose it meant that the wife did not have adequate knowledge so that her consent lacked the quality of an informed consent? It seems to me that the answer must be that it was a relevant circumstance.
The test is subjective. Because of this, great weight must be attached to the wife’s evidence that had she known that the husband had attended Dr. O’S. for approximately six years she would not have married him. It is possible that another person would not have reacted in the same way, but this was the wife’s evidence of how she would have reacted if she had known and this was accepted by the learned trial judge. For her, accordingly, the fact that the husband had attended Dr. O’S. was a circumstance which would have influenced her in making up her mind. And it could not be said that it was not a circumstance of substance. Apart altogether from any question of psychiatric illness – and there was no evidence that the husband had ever suffered from such an illness – a person’s mental health or mental stability is obviously a matter of great importance and anything which might throw doubt upon it calls for serious consideration.
Because of this, the husband ought to have told the wife that he had attended Dr. O’S. His failure to do so deprived her of knowledge of a circumstance which was clearly relevant to the decision she was making.
For these reasons I would allow the wife’s appeal and declare that her marriage was null and void by reason of the fact that her consent to it was not an informed consent.

 

 

 

B.J.M. v. C.M.

[1996] 2 IR 576

Flood J.
This matter comes before this Court on a petition for nullity of marriage, by the petitioner. The respondent traverses all allegations in the petition.
By order of the Master the issues to be tried were directed to be:
1. Whether the respondent lacked the capacity to fulfil the fundamental terms of the marriage contract at the time of the marriage ceremony?
2. Whether the petitioner’s consent to the said marriage was apparent rather than real in that it was not a full, free and informed consent?
3. Whether the petitioner and the respondent had the capacity to enter into and sustain a normal functional marital relationship with each other by reason of their respective states of mind, psychological conditions, physical conditions and level of emotional development prior to and at the time of the said marriage?
4. Such further or other issue or issues as the trial judge should see fit.
Background facts
The petitioner met the respondent in or about the month of May, 1973, in Dublin. He was then a member of the Garda Síochána stationed in Dublin. She was working as a cook in Jervis Street Hospital. The petitioner would at that time have been about 21 years of age and the respondent was in or about 19 or 20. They both came from a rural background and both came from strict Catholic homes with strong morals and religious beliefs. They each had left school after they had completed their primary education. Both gave evidence of a friendship which developed over a period of a year or more and became more and more serious and ultimately led to an engagement and marriage on the 28th September, 1974.
It is quite clear from their evidence that the degree of intimacy permitted by the respondent during their courtship was of a very restrained nature and reflected her moral and religious values which the petitioner respected. I am absolutely satisfied from the evidence of both parties that neither would have seen the other naked at any time before their marriage.
The respondent, when a three year old child had met with a very serious accident. A pullover and night-dress she was wearing caught fire. She was very extensively burnt. The area of injury extends from just below
her collarbone down the front of her torso to the front and inside her thighs in the vicinity of her vulva. The scar tissue is pale white in colour and over the area of her torso has a mildly undulating appearance. Her breasts and mammary glands are underdeveloped. Overall I would describe the area involved as significantly disfigured.
In evidence the respondent related how she was a number of months in hospital recovering from her injuries. She said that, thereafter, she learned to live with the scar tissue which never caused her personally any concern as she grew to adulthood. It did not, she said, inhibit her in any way and was not of any concern to her.
She is now a woman of some forty odd years. She has a very attractive face, a very slim and well proportioned figure and is beautifully walked. I would think that in her early 20’s she would have been a very physically attractive young woman with quite an aura of sexuality.
The petitioner says that while the respondent told him of her accident as a child, she never revealed the extent of the area of burns or in any way revealed that she was scarred or disfigured, in fact she did not give him any details at all before they were married. He said he had never seen her breasts exposed and was never allowed to touch them during courtship.
From the evidence she gave in court, I am quite satisfied that while she did not permit her injuries to impinge on her general activities, she was extremely conscious of their existence. To her they were something to which she did not have regard, and, while on an objective test she was lacking in frankness and indeed, objectively, in honesty to her intended partner for life in not detailing their extent, subjectively she was not conscious of any deceit. I think that Dr. Peter Fahy is correct in saying that it established to him a certain immaturity.
The essence of the petitioner’s case in this regard is that when he ultimately did see the physical reality, it created in him a revulsion. In my view, this is a very human reaction. He has spent a courtship with a very attractive person, both outwardly physical and in personality. She behaves with great modesty consistent with her manifest religious and moral beliefs, and on his honeymoon where all inhibitions no longer exist, he is confronted not with “a snowy breasted pearl” but with a partner for life who is seriously disfigured and in the sensual province gives rise in his mind not to desire but to revulsion. To any partner or intended partner, the concept of relationships a lifelong relationship prior to marriage is based on a mixture of respect and desire and of the reality or near reality of the partner’s or intended partner’s concept of, certainly, the physical reality of his basic concept. If his basic concept proves wholly illusory and has no foundation in fact but on the contrary creates a revulsion, he has in fact not entered into the contract of marriage with a full, free and informed consent and accordingly his consent is apparent rather than real. I find comfort in that view in the passage in Dr. Peter Fahy’s reported dated the 30th June, 1995, which represents and encapsulates his evidence in court. The passage in question is on page 2 of the said report of the 30th June, 1995.
“From the accounts I got from B. of their courtship, there was no physical intimacy because of the respect of her ethics and religious attitudes.
Virtually and immediately subsequent to the marriage he discovered that she was extremely disfigured because of the burns received in childhood. He told me he had no knowledge whatsoever of this and on being faced with his wife’s disfigurement he was shocked and confused and also equally destabilized by what appeared to be his wife’s total aversion to any sexual relationship or indeed any display of affection.
I understand the marriage was not consummated for about eight weeks.
B. underwent stages of emotional turmoil which were added to by his wife’s attitude, as ascribed by him, to his need for physical affection and sexual contact.”
Later in the report he goes on:
“Going on B.’s account of things, he was unprepared for the disfigurement caused by C.’s burns sustained somewhat before the age of three and tried to make his marriage work, but could not sustain this effort. Taking his account of things as credible, he had no prior knowledge of the disfigurement, he would not have had any training or counselling to deal with the situation and therefore was not informed of the situation before their marriage and was not constitutionally and personally equipped to deal with it, as has been borne out by events ending in the ultimate breakdown of the relationship when his relationship with the other lady came to light around 1990/91. In my opinion, this is not a breakdown of an established marriage but evidence of a pre-existing lack of information and an inability to sustain a normal marriage relationship because of the circumstances of which he had no real prior knowledge.”
It is my task as a judge to form a view and I cannot delegate it to anybody including even a most distinguished psychiatrist but I can take comfort in the correspondence of the psychiatrist’s view and mine.

In my opinion, ground 2 of the Master’s determination of issues is fully established beyond the bounds of probability.
I have had the benefit of reading the very extensive and careful judgment of my colleague Kinlen J. in O’R. v. B. [1995] 2 I.L.R.M. 57 in which there is a most careful and learned recitation of the law relating to nullity and the circumstances under which a marriage may be declared null and void. It is said, inter alia, that the ground of nullity has to exist at the date of marriage. That clearly is present here. It seems to me that the petitioner’s psychological revulsion is something to which the courts must have regard and is something which this Court should recognise. Costello J. in D. v. C. [1984] I.L.R.M. 173 at p. 189 says inter alia:
“But marriage is by our common law (strengthened and reinforced by our constitutional law) a lifelong union and it seems to me to be perfectly reasonable that the law should recognise (a) the obvious fact that there is more to marriage than its physical consummation, and (b) that the lifelong union which the law enjoins requires for its maintaining the creation of an emotional and psychological relationship between the spouses. The law should have regard to this relationship just as it does to the psychological one.”
In my view, the psychological revulsion of the petitioner is such, as expressed by him, to render it improbable that he could maintain an emotional and psychological relationship such as is required to support a marriage and so for this further reason this marriage is flawed.
I am very conscious that the marriage has continued to exist from 1974 to 1991 or thereabouts. I think this is entirely due to the petitioner’s commitment and belief that he had no way out, that once he had been married there was really no going back and he adjusted to this the best he could. But in the years that passed, notwithstanding the undoubted efforts of the respondent, he could not sustain the relationship when it came under stress from an alternative source.
In justice, it must be said of the respondent that she is a woman of remarkable courage. She has borne throughout her life the scars of her unfortunate accident when she was three. I accept that with an effort she took part in and tried to overcome her own reluctance to show her body, a reluctance I think which was in conflict with her own sensual desires. She has unquestionably had physical sexual relations with her husband, not in my opinion on an ad lib basis but, as her husband says, after much persuasion. She has attained perhaps the zenith of all womanhood to give birth to children whom she has reared with care and consideration. She has attempted to provide the material side of marriage in a very formal, fine and proper manner and she presently feels that all her efforts have been in vain as she has been rewarded by infidelity.
Deeply conscious of all the foregoing and of the fact that I do not think she intended, subjectively, to deceive the petitioner, she nonetheless deprived him of an election which he was entitled to make prior to entering into the contract of marriage, namely, whether he would accept his future wife with all her physical infirmities and thus has rendered this marriage null and void. I accordingly propose to make an order under paragraphs 2 and 3 of the Master’s order dated the 29th June, 1994.
I direct the petitioner to pay the respondent’s costs.

 

 

Kelly v. Ireland

[1996] 2 IR 538
Barron J.

12th December 1995

The applicant is Sudanese by birth having been born in the Sudan on the 1st January, 1954. In the year 1977 she came to London where she cohabitated with another Sudanese citizen, Rabbia Mohammed Hussain. At that date she already had a daughter born in the Sudan on the 15th August, 1975, as a result of a relationship with a man to whom she was not married. In the course of her relationship with Rabbia Mohammed Hussain she had a son born on the 18th August, 1978. It is common case that on all relevant public documents she held herself out as being the wife of Rabbia Mohammed Hussain. At no time did Rabbia Mohammed Hussain or the applicant have any entry visa to the United Kingdom entitling them to remain resident there for longer than a period of six months. As a result Rabbia Mohammed Hussain left the United Kingdom on the 26th October, 1982. The applicant then made an application for permission to stay in the United Kingdom. This application was refused. At the time of the matters with which these proceedings are concerned the applicant was awaiting the hearing of an appeal against the refusal of the United Kingdom authorities to permit her to remain in that country.
The applicant met David Anthony Kelly in June, 1984. They married in a registry office in London on the 23rd August, 1984. Following upon her marriage the applicant applied for and was issued with an Irish passport by the Irish Embassy in London on the 28th September, 1984. This she used on several occasions thereafter. On the 6th January, 1991, when she sought entry into the United Kingdom her entry was refused and her passport was taken from her. Notwithstanding this she was allowed entry into the United Kingdom pending resolution of these proceedings and has remained in the United Kingdom since that date. She was informed by the Irish Embassy on the 12th February, 1992, that the passport had been issued to her unlawfully and that she was not entitled to it. Her case was taken up by the Joint Council for the Welfare of Immigrants. Following correspondence between this council and the Irish authorities an order was made by the Minister for Foreign Affairs on the 26th August, 1992, whereby her passport was impounded and she was declared not to be an Irish citizen.
By notice dated the 8th January, 1993, the applicant sought leave to obtain relief by way of judicial review. The relief sought was:
(a) An order of certiorari quashing a decision of the Minister for Foreign Affairs dated the 26th August, 1992, which impounded the applicant’s passport No. J663957.
(b) An order of mandamus compelling the Minister to return the said passport to the applicant or alternatively compelling the Minister to grant the applicant a new passport.
(c) A declaration by way of judicial review that the applicant is an Irish citizen.
(d) Damages for breach of constitutional rights.
The grounds upon which relief was sought were set out in the said application. She claimed that following her marriage to one David Anthony Kelly, an Irish citizen, on the 23rd August, 1984, she became entitled to apply for and obtain an Irish passport pursuant to the provisions of s. 8 of the Irish Nationality and Citizenship Act, 1956; that a valid Irish passport had been issued to her on the 28th September, 1984, and had not yet expired; that the decision of the Minister to revoke her passport wasultra vires; and that as her marriage duly complied with the formalities of the law of the place where the marriage was celebrated, the marriage had to be accepted as valid. It was also submitted that the decision of the Minister was made contrary to the guarantee of fair procedures; that it was irrational and unreasonable; and that the Minister was in breach of Article 40, s. 3 of the Constitution and Article 3 of the European Convention on Human Rights in as much as the withdrawal of her passport exposed her to the risk of deportation from the United Kingdom to her country of origin, Sudan, where she would face punishment. Liberty to seek judicial review was granted by the High Court (Geoghegan J.) on the 11th January, 1993.
Although many different grounds have been raised to obtain the relief being sought, the submissions made on behalf of the parties fall ultimately to be decided upon the sole question as to whether or not the marriage ceremony which took place in London on the 23rd August, 1984, constituted a marriage contemplated by s. 8 of the Irish Nationality and Citizenship Act, 1956. Whatever might be the consequences of the Minister’s decision, the ultimate question remains, was there a marriage capable of being valid in accordance with the provision to which I have referred? Even if it can be said that the Minister did not carry out his function in accordance with the guarantee of fair procedures this cannot be the real issue. Nevertheless, this issue has been argued extensively. If it was the only issue, the applicant would fail. Upon the evidence available to the respondent’s officials, I consider that the steps taken by them were both reasonable and fair.
Before dealing with this fundamental issue it is necessary to dispose of two other aspects of the case. It has been submitted on behalf of the Minister that the marriage was a bigamous marriage in that the applicant was already married at the date of the ceremony. This submission is based upon the evidence that at all times the applicant held herself out to be married and that she so stated on all public documents including the birth certificate of her son born to Rabbia Mohammed Hussain. In further support of this submission it is said that the absence of evidence of the registration of the marriage, whether in the Sudan or elsewhere, is not evidence that the marriage was not made in conformity with the law of Sudan. Evidence has been given that a valid marriage may be contracted without registration in the presence of two witnesses. Accepting that such a marriage could lawfully take place in the Sudan, nevertheless there is no evidence of any such ceremony before witnesses having taken place.
Where a bigamous marriage is being alleged it is necessary that the first marriage should be strictly proved. I see no reason why such strict proof should not equally apply in the present circumstances. In any event the applicant has testified to the fact that she was never married, neither to the father of her daughter nor to the father of her son. I believe that Statement to be accurate.
The other matter which must be referred to is the context in which this passport is said to have been issued. At that period there were very many Irish passports being improperly issued as a result of the bribery of an official in the passport section of the Irish Embassy in London. It is said that there was an organised ring of several solicitors in London who were involved in the corruption of the official concerned. It is said that one of these solicitors who was a member of that ring was involved in obtaining the passport for the applicant in the present case. There is no positive evidence before me which would entitle me to hold that the applicant or someone on her behalf had deliberately and consciously paid this solicitor to ensure that a husband should be found for the applicant in order to obtain for her an Irish passport so that she would be entitled thereafter to remain not only in the United Kingdom but also in any other part of the European Union. I am satisfied on the evidence that many of the alleged marriages at this period which resulted in foreign women obtaining Irish passports were totally fraudulent in that in many cases birth certificates of Irish citizens were produced to the marriage registrar which did not belong to the alleged spouse taking part in the ceremony. That is not the case in the present instance. The Irish citizen with whom the applicant went through the ceremony of marriage in London on the 23rd August, 1984, is a real person and has given evidence in the course of these proceedings. Nevertheless the existence of this ring in London in or around that time is a matter which must be taken into account in the overall consideration of the relevant facts.
The right which the applicant claimed, and in accordance with which an Irish passport was issued to her, is granted by s. 8 of the Irish Nationality and Citizenship Act, 1956. This provision so far as it is material is as follows:
“(1) A woman who is an alien at the date of her marriage to a person who is an Irish citizen (otherwise than by naturalisation) shall not become an Irish citizen merely by virtue of her marriage, but may do so by lodging a declaration in the prescribed manner with the Minister, or with any Irish diplomatic mission or consular office, either before or at any time after the marriage accepting Irish citizenship as her post-nuptial citizenship.”
It is clear from the wording of the section that a condition precedent to this right is “her marriage”. In my view, the marriage must be a marriage which will be recognised as such by the law of the State. I do not
accept, as has been submitted on behalf of the applicant, that the law should be that of the United Kingdom being the place where the marriage was celebrated. Unless the marriage can be recognised by the law of the State, then the provisions of the section cannot apply.
Reference has been made to a number of decisions of courts of different jurisdictions in relation to the central question, what is a valid marriage? In United States v. Rubinstein (1945) 151 Fed. Rep. 2d. 915 the parties went through a ceremony of marriage in accordance with New Jersey law solely for the purpose of preventing the wife from being deported from the United States. The husband was paid $200 for his co-operation. The marriage was arranged by a lawyer and he was charged with the crime of conspiracy to bring an alien into the country by a misrepresentation and concealment. In his defence he pleaded that the marriage was valid and that accordingly no crime had been committed. It was established that the parties had agreed never to cohabit and that the marriage was not consummated. It was held that the parties had not consented to enter the marital relationship and that no marriage had been effected.
In the course of his judgment in United States v. Rubinstein, referred to in H. (orse. D) v. H. [1954] P. 258, Hand J. is cited as having said:
“Mutual consent is necessary to every contract; and no matter what forms or ceremonies the parties may go through indicating the contrary, they do not contract if they do not in fact assent, which may always be proved . . . if the spouses agree to a marriage only for the sake of representing it as such to the outside world and with the understanding that they will put an end to it as soon as it has served its purpose to deceive, they have never really agreed to be married at all. They must assent to enter into the relation as it is ordinarily understood, and it is not ordinarily understood as merely a pretence, or cover to decieve others.”
In Orlandi v. Castelli [1969] S.C. 113 a woman of British nationality resident in Glasgow brought her Italian fiancee to Scotland to stay. In order to allow him to remain in Scotland, although his residence permit had expired, the parties went through a form of marriage at a registry office which, as both were Roman Catholics, they did not regard as a genuine marriage. They neither cohabited nor had sexual relations after the marriage. An undefended action for a declaration of nullity was brought by the wife. It was held that where it can be shown that there has been no true matrimonial consent and that the ceremony was only designed as a sham or as an antecedent to marriage it should be set aside.

In Martens v. Martens [1952] 3 S.A.L.R. 771 the defendant had met a Mr. Holden while in Greece and wished to go to South Africa to live with him. In order to be admitted to South Africa it was necessary for her to enter the country to be married. She entered South Africa for the purpose of marrying the applicant and immediately after the marriage ceremony to him went to live with Holden. A decree of nullity was refused upon the grounds that the parties intended to marry rather than merely go through a form of marriage.
In that case Clayden, J. in a passage cited in H. (orse. D.) v. H. [1954] P. 258 said:
“It seems to me that the facts show that the parties did intend that the defendant should become the wife of the plaintiff. That was the very object of the ceremony, so that she could remain in the country, and that object was brought about with a realisation by both contracting parties that there would be need for divorce to end the marriage. As explained later, any agreements contrary to the relationship of marriage must be disregarded. The action for a declaration of nullity of marriage must be dismissed.”
In H. (orse. D.) v. H. [1954] P. 258 a woman resident in Hungary wished to leave her native country because of the political situation which existed there. In order to obtain a foreign passport she went through a form of marriage with a French citizen who was her cousin. They separated immediately after the ceremony. Both were in their late teens. She was as a result of her marriage able to leave Hungary. She brought a petition for nullity. It was held by Kaiminsky J. that the marriage would have been valid save for the duress, being the desire to flee the political situation in her native country. As a result, this negated her consent and made the marriage invalid. In Silver (orse. Kraft) v. Silver [1955] 1 W.L.R. 728 in similar circumstances the decree was refused because there was no duress present.
In Szechter (orse. Karsov) v. Szechter [1971] 2 W.L.R. 170 the circumstances were if anything more extreme than H. (orse. D.) v. H. [1954] P. 258. The petitioner had been married but divorced his wife for the sole purpose of being in a position to marry the respondent. She was at that time in prison in Poland and but for her marriage she would have had to remain in prison and was very likely to die. It was held that consent was avoided by the duress.
In Vervaeke v. Smith [1983] 1 A.C. 145 it was held by the House of Lords in England that there was no room in English law for mental reservations or private arrangements regarding the parties personal
relationships once it is established that the parties are free to marry one another. In that case the marriage took place in order solely to obtain the right of the wife to remain in the United Kingdom. The same marriage was the subject of proceedings in Belgium under Belgian law and was held to be invalid on the basis that there was no true consent.
Both parties have referred to H.S. v. J.S. (Unreported, Supreme Court, 3rd April, 1992). In that case an Irish girl had met a Portuguese boy on holidays in Portugal. She invited him to Ireland. At that time she wished to go to the United States of America and sought to persuade him to come with her. She persuaded him to go through a ceremony of marriage on the basis that without the status of a husband he would not be entitled to enter the United States. He subsequently did not accompany her to the United States but returned home to Portugal. It was found as a fact in the High Court to the effect that the parties intended to enter into a valid civil marriage which would enable the wife to claim the respondent as her husband in the United States. It was further found that they knew what they were doing and meant it. They hoped that the marriage would work but were prepared to divorce if it did not. It was held by a majority that the intention to divorce if both parties so wished does not prevent the creation of a valid marriage.
It can be seen from these several cases that there are essentially two views of marriages. The first is that if the parties have a capacity to enter into a valid marriage and participate in a ceremony of marriage, that is sufficient to establish the marriage. The second is that the circumstances surrounding the marriage may be looked to, to determine whether the apparent consent is a true consent or whether the ceremony is a sham to achieve some other end.
Ultimately the question which must be asked in this case is, did the parties go through the ceremony of marriage to become man and wife, or did they do so solely to enable the applicant to obtain the legal right to call herself a wife so that she might remain in the United Kingdom and so not be deported?
It was submitted on behalf of the respondents that the parties did not have the necessary capacity to marry since the purpose of the marriage was to circumvent the immigration laws of the United Kingdom. In my view if that was the purpose of the marriage then it affected the consent of the parties but not their capacity. I would not accept this submission.
In arriving at the answer to this question it must be understood that people marry for a great many different reasons. Barrington J. in R.S.J v. J.S.J. [1982] I.L.R.M. 263 said at page 264:

“People have entered into a contract of marriage for all sorts of reasons, and their motives have not always been of the highest. The motive for the marriage may have been policy, convenience, or self-interest. In these circumstances it appears to me that one could not say that a marriage is void merely because one party did not love or had not the capacity to love the other.”
In the present case, the parties come from different religious and cultural backgrounds and it is easy to say that they could have had nothing in common save the desire of the applicant to remain in the United Kingdom and the agreement of her spouse to assist her in obtaining this goal. That, however, is too simplistic a solution.
There is a clear conflict of evidence as to the circumstances leading to the ceremony on the 23rd August, 1984. A number of affidavits were filed on behalf of the parties. However, of the numerous deponents only the applicant, David Anthony Kelly, and Amal Selim were available for cross-examination in relation to the circumstances surrounding the ceremony. Evidence was also given by United Kingdom immigration officers. Their evidence does not bear on the issue as to whether or not the marriage is a valid marriage. They gave evidence to enforce the submission on behalf of the respondents that the marriage was entered into solely to avoid the immigration laws of the United Kingdom. I am quite satisfied from their evidence that but for this marriage and the issue of the Irish passport the applicant would have been deported from the United Kingdom. In fact, although at the date of the marriage an appeal was pending, this appeal was not pursued and a final order was made some time in November, 1984.
In evidence the applicant said that she met David Anthony Kelly in June, 1984, and that he asked her to many him in a bar near Powis Square in Bayswater, London, some time in August, 1984; she cannot remember the date. The marriage itself took place on the 23rd August, 1984, in a registry office. It was attended by the two parties, by a friend of the applicant who acted as a witness and by a friend of David Anthony Kelly who also acted as a witness. The only other person present was a solicitor who at that time was acting for the applicant. Following the ceremony the five of them went to a bar and they had drinks and food. Subsequently, the applicant and her husband obtained the necessary forms for obtaining a passport and citizenship from the Irish Embassy, filled them in and brought them back together. She said that following the ceremony he came to live in her flat. He remained there until some time towards the end of October when he said that he was going fishing and he never returned. At some stage in the course of their relationship there was an attempt to have sexual intercourse, but this failed owing to his impotence. She admitted in cross-examination that she married in order to obtain an Irish passport, but she says that she would not have married him if she had not liked him. Nevertheless, it was clearly a very significant factor.
The evidence of Amal Selim, supported the applicant in one matter only and that was, that she saw David Anthony Kelly in the applicant’s flat one evening at a date subsequent to the marriage at around about six o’clock in the evening but she did not speak to him.
The evidence of David Anthony Kelly was that for some years before the marriage he had had no steady job. He did some casual work and was in receipt of social security. He was an alcoholic and very vulnerable. There were areas where he had no recollection of events or imperfect recollection over quite long periods. He was not too sure of events in 1984, but was positive that he had had no relationship with the applicant. His sole contact was at the registry office. He accepted that he had brought his birth certificate to the Embassy on the day the passport was issued, but did not know why he was going there. Some man had arranged the whole thing. He was recalled for further cross-examination. At this stage he was more positive as to the circumstances of the marriage. His sole contact with the applicant was at the registry office. He had never spoken to her. As far as he knew she didn’t speak English. He didn’t know where Powis Square was but he had been told that she lived in Bayswater. He had never been in her flat. He accepted that £50.00 was put on the bar counter following the ceremony for him to buy drinks. He referred to the applicant in the course of this part of his cross-examination as “Fatma” in a manner that suggested he was familiar with its use. Whereas at first he had been willing to give the impression that he might have no real recollection of the material events this had changed and he no longer adopted this attitude.
I find his evidence unconvincing. I prefer that of the applicant. I accept that there was a relationship between the parties prior to the ceremony and that it continued afterwards. The onus was on the respondents to establish that the marriage was a sham because the parties did not participate in the ceremony in order to become man and wife, but to prevent the applicant from being deported. This they have failed to do. The applicant is entitled to relief accordingly.

C (D.) v. M (N.)

 

[1997] IEHC 105; [1997] 2 IR 218 (26th June, 1997)
THE HIGH COURT
MATRIMONIAL
1994 No. 27 M
BETWEEN

D. C.
PETITIONER
AND
N. M. (FALSELY KNOWN AS N. C.)
RESPONDENT

Judgment of Mr. Justice Geoghegan delivered the 26th day of June, 1997 .

1. This is a petition for nullity in respect of an alleged marriage between the parties on the 28th February, 1978 in the Roman Catholic Church of St. Mary’s at Passage West, County Cork. The petition is opposed and the Respondent has instituted separate proceedings for judicial separation with the usual consequential orders for the maintenance of herself and her children. The hearing of the judicial separation proceedings has been postponed pending the determination of this nullity suit.

2. There are several different grounds on which the Petitioner seeks nullity. These can be summarised as follows:-

1. The Petitioner’s consent to enter into a marriage was obtained by the undue influence and/or duress exerted upon him by the Respondent by reason of her alleged pregnancy by him.
2. At the date of the alleged marriage, the Respondent was under the age of 21 and that the necessary consent under Section 19 of the Marriages (Ireland) Act, 1844 as inserted by Section 7 of the Marriages Act, 1972, had not been obtained.
3. The marriage had been solemnised on foot of her forged consent purporting to be the consent of the Respondent’s father.
4. The forged consent vitiated the marriage in that the Petitioner entered into the marriage in reliance on there having been a proper consent.
5. There was not a valid consent to the marriage by either the Petitioner or the Respondent in that each married under the pressure of the pregnancy and surrounding circumstances and that such consent as there was, was not the product of a fully free exercise of the independent will of the parties thereto.
6. The Respondent lacked the capacity to form or alternatively to maintain or sustain a lasting relationship with the Petitioner by virtue of her inability to face reality as a consequence of a seriously immature personality.
7. The Respondent had an apparent incapacity to control her compulsion to be sexually unfaithful to the Petitioner due to a seriously immature personality.

3. I should state at the outset that in my opinion the last ground is quite unsustainable. There was one piece of evidence which might indicate unfaithfulness, if true, but since I regard it as irrelevant to the nullity proceedings and might possibly be relevant to the judicial separation proceedings if nullity is refused, I do not intend to make any finding on it. It is sufficient to state that there was no evidence whatsoever that would justify an allegation that at the time of the marriage, the Respondent suffered from some uncontrollable urge to be sexually unfaithful to her marriage partner.

4. I propose now to deal with the more general and usual grounds for nullity and to leave to later on in this judgment the grounds numbered 2, 3 and 4 above which all relate to the absence of consent by the Respondent’s father and the forged consent.

5. I will start with the allegation of undue influence. I do not consider that there was any duress or undue influence in this case. For some years past it has been quite common for nullity to be granted in a case where a young girl became unexpectedly pregnant and there was parental or external pressure exerted on one or both of the parties to get married. If that pressure was excessive so as to prevent them forming an independent mature decision of their own, the Courts have not considered the marriage to be a valid marriage and have had no hesitation in declaring nullity. That, however, is not the case here. There is no evidence of pressure by either set of parents or by any outside person on either the Petitioner or the Respondent to marry each other. I have no doubt that each wanted to get married and indicated that wish to the other. I am satisfied also that there had been at any rate a long term plan to get married, though no date had been fixed. At the time of the pregnancy this was a couple in a loving relationship. There is no question of the pregnancy having arisen from a single night’s passion. Having heard the Petitioner and the Respondent in the witness box, I am quite satisfied that the decision to get married at the actual time that they did was related to the pregnancy and that to a certain extent each felt a sense of duty to each other to get married and I think it is fair to say that the Respondent did not want to be an unmarried mother. But I found nothing in the Petitioner’s evidence to indicate to me that he was under any undue or excessive pressure by the Respondent and he was certainly under no pressure at all from anyone else. He does appear to have been under pressure to some extent from his own conscience. I would further point out that this couple were not particularly young. He was 21 and she was 19. She was in a sense a mature 19 in that she had been leading an independent life for a considerable period. If there was to be nullity in a case such as this, it would effectively mean that no marriage arising out of an unwanted pregnancy could ever be upheld. None of the decisions of the Irish Courts support that proposition, nor in my opinion would there be any justification for adopting that view. It is quite a different matter of course where there is parental or external pressure that a young immature person may be unable properly to withstand. It would also be different if there was any psychiatric illness in either party but again I am satisfied that that was not the case here. I am satisfied that the Petitioner and the Respondent were in a romantic relationship at the time of the pregnancy and that they had already made plans to marry. Effectively all that happened was that the date of the marriage was brought forward, though of course I do accept that if there had been no pregnancy it is always possible that the marriage plans might have been cancelled.

6. It is clear also from the evidence that the Petitioner never wanted his marriage to break up and that right up to recent proceedings in the District Court he was expressing hope that his marriage could be sustained. I do not think that it ever occurred to him that there was anything invalid about his marriage until the breakdown of his marriage led to his obtaining legal advice. Furthermore, I rather doubt that nullity proceedings would ever have been contemplated but for the circumstances surrounding the statutory requirement of consent of the parent to the Respondent’s marriage and which effectively formed the second, third and fourth grounds of nullity as I have listed them.

7. I will now consider these these grounds. The statutory provision which requires parental consent in the case of a person marrying under the age of 21 is Section 19 of the Marriages (Ireland) Act, 1844 in its new form, that is to say, as inserted by Section 7 of the Marriages Act, 1972. The new Section 19 replaces the old Sections 19 and 20. In the footnote to the old Section 20 contained in Faloon on the Marriage Law of Ireland ; the following is stated:-

“The section requiring consent to the marriage of a minor is directory only; and therefore a marriage solemnised by licence the man being a minor and having a father living, and who did not consent to the marriage, was held valid ( Rex. -v- Inhabitants of Birmingham, 8B. and Cr. 29).”

8. That case was decided on the equivalent English section but it is still cited into modern times as the authority for the proposition that the section is directory only. Mr. Shatter in his work on Family Law asserts the directory nature of the section also though he does not cite any authority. The new Section 19 does not contain any alteration on foot of which it could be argued that the prohibition was not directory only. I am absolutely satisfied that it is directory and that the mere absence of consent could not invalidate the marriage. Mr. Paul Walsh, Counsel for the Petitioner, does not contest this too seriously but he argues that the position is different if the statutory provision is breached knowingly and that even if he is wrong about that, the breach must lead at least to a voidable marriage if the consent was forged. I cannot accept either of these propositions per se.

9. In relation to the first, Mr. Walsh relies on the case of I.E. -v- W.E ., 1985 I.L.R.M. 691, a High Court decision of Murphy J.. But that case was dealing with a quite different section in the Marriages (Ireland) Act, 1844. The relevant section was Section 49. That section is dealing with the places in which marriages can occur and it provides that if any person “knowingly and wilfully” marries in some other place, the marriage shall be null and void. Murphy J. pointed out that it was settled law, that to invalidate a marriage for non-compliance with Section 49 it was necessary to establish not only that there should have been a conscious disregard of the provisions of the section but that both parties to the apparent marriage should have been aware of the defect. As the Petitioner’s whole case here is partly based on an allegation that he was unaware of the absence of the consent, it is difficult to see how this decision could be relied on even if it was relevant. However, it is perfectly clear that Section 49 by its own terms is not a section which is merely directory. Its breach, if done knowingly, has the effect of invalidating the marriage. It is therefore totally different from Section 19 and that case, in my view, has no bearing on the issues in this case.

10. With regard to the second point, I cannot accept the view that merely because the consent was forged, the marriage was automatically invalid. First of all there is nothing at all in Section 19 of the 1844 Act, as inserted by Section 7 of the 1972 Act, which has that effect. If the section is to be interpreted as being directory only it cannot be read into it that it is not directory only in the case of a forged consent. For the Petitioner to succeed on this ground therefore, he must satisfy the Court that independently of the section, though of course having regard to it as part of the surrounding circumstances, the forged consent rendered the marriage voidable. I believe that it could not possibly have that effect if both parties were aware of the forgery and I find as a fact that they were. In this regard I accept the evidence of the Respondent that a scheme was devised whereby the Respondent’s brother would forge the father’s consent for the purpose of misleading the priest and that the Petitioner was present when this plan was hatched. That really is the end of the matter but I would add that even if I was incorrect in that finding of fact, I would still be of the view that the forged consent would not have the effect of invalidating the marriage unless the Petitioner was able to establish that to the knowledge of the Respondent he relied on that consent in entering into the marriage and would not have entered into it had he known of the forgery. The Petitioner in fact has not discharged that onus on the evidence which I have heard. Some reliance was placed on the Forgery Act, 1913 and the suggestion that the forgery was a criminal offence. As I read the Act, this was not a category of document, the forgery of which was a criminal offence as such but the uttering of the forged document was a criminal offence under the Act. Insofar therefore as anyone made use of the forged consent for the purpose of misleading the priest, an offence under the Act was committed. But I do not think that that has any effect on the validity of the marriage.

11. I therefore refuse nullity on all grounds put forward.

 

 

A.B. v. E.B.

Budd J. [1997] 2 IR 307
H.C.

 

Budd J.
14th October 1993

This is an application by the petitioner for a decree that the marriage entered into between the petitioner and the respondent was null and void and of no legal effect.

The issues to be tried by this court are set out in the order of the Master made on the 18th March, 1992, and are as follows:
(1) Whether the respondent by reason of her mental capacity or state of mind was unable to understand the nature and purposes or consequences of the marriage contract?
(2) In the alternative, whether at the time of the marriage the respondent was suffering from a disease of the mind that she was not able to sustain a normal relationship with the petitioner?
(3) In the alternative, whether the respondent was not capable at the time of the marriage of sustaining a lasting marital relationship?
(4) In the alternative, whether the respondent was unable to enter into or sustain a normal marital relationship by reason of incapacity arising from emotional immaturity or psychological weakness or disturbance?
Counsel for the petitioner indicated that the nub of his client’s case was that the respondent’s experiences as a child so scarred her personality that at the time of the marriage on the 23rd March, 1973, she was unable to enter into or sustain a normal marital relationship having special regard to their sexual relationship and in particular to a reasonable degree of frequency of sexual intimacy and intercourse.
In accordance with the order of the Master of the High Court a report on the parties was compiled by Dr. Ian D., a consultant psychiatrist, in or about February, 1993, which I will refer to subsequently. The petition was opposed.
The parties were married on the 23rd March, 1973, in a church in Dublin. The marriage was consummated and four children were born of the marriage, being a son born on the 26th May, 1974, the eldest daughter born on the 13th May, 1975, the second daughter born on the 12th May, 1977, and the youngest daughter on the 24th October, 1978. In February, 1989, the petitioner left the family home being a terraced house worth about £70,000 in Dublin. Since April, 1989, the petitioner has been living with his lady friend, whom he had met in or about 1978 and with whom he had had an intimate relationship since before 1979.
Both parties gave evidence and in my view were candid and attempted to be fair and truthful in their giving of evidence. In respect of the few areas in which there was a conflict of evidence and in particular where these related to intimate matters, I preferred the accuracy of and accepted the evidence of the respondent. I was conscious throughout the giving of the respondent’s evidence of her deep sense of hurt and in the course of cross-examination I was conscious of her suppressed feeling of outrage and disbelief that the validity of her marriage could be challenged after so many years of cohabitation and after her having borne and brought up four children of the marriage. Her sense of outrage and disbelief is fully understandable in this case in that she clearly believed for many years that her marital relationship was normal and that her deep love for her husband was reciprocated. Unfortunately, the petitioner’s perception that the respondent was failing to perform sexually at the level of his desires and expectations led first to frustration and unhappiness and then to the breakdown of this marriage.
The petitioner was born on the 22nd July, 1949. The respondent was born on the 8th March, 1950. They met coming from school about 1965 and became friends but in a relationship of varying intensity, being casual at times and intense at other times. In March, 1972, the respondent left her parents’ home due to problems at home, mainly in respect of her brother who was violent. The petitioner’s mother took her into her house which was in the same road of terraced houses as the respondent’s parents’ house. The petitioner at this time was living at home and working as a van driver and working also at night as a cleaner in order to save money from which he bought a small house in December, 1972. In October, 1972, they got engaged and subsequently went on a week’s holiday around Ireland. They had intercourse on one occasion during that week but this was unsatisfactory. The petitioner said that he understood the respondent to have been a virgin and that the respondent said that it was “just nerves and would be different when we got married”. The petitioner described a tiff during their engagement on which occasion he drove the respondent home and told her mother that things were not working out but subsequently the same night at 2.30 a.m. the respondent arrived back up to his parents’ house and apologised and continued to reside there. The petitioner said that the wedding was an enjoyable day and that they went to Spain for a week; the honeymoon was good; “sex was not good though we had intercourse”. The petitioner’s house was being rewired and so they did not move into the house until May, 1973. In the meantime they continued to reside with his parents. Subsequently, when they moved into their house, if he was away on courses then the respondent would stay with his parents. For example in December, 1973, he was doing a three week course and the respondent, being pregnant, stayed with his mother. Their son was born on the 26th May, 1974. The petitioner said of about this time that:
“We got on okay. Lovemaking was never successful.”

He said that the respondent would not have the light on, would not remove her night-dress, and never wanted to be touched in foreplay.
The petitioner at this time was working as a salesman. They never went away together for the weekend. Members of her family often stayed in the house. He said that the respondent would never let herself into a situation which would lead to intimacy. He was surprised at the conception of their youngest daughter in early 1978, as by that time their sexual life was non-existent. He often spent the night in a separate room or on the couch downstairs. By then the petitioner was often out late. In 1978, the petitioner met the lady who is now his permanent partner and he said that they had become intimate some four or five months later.
At the petitioner’s behest the respondent attended a counsellor at the Catholic Marriage Advisory Centre (C.M.A.C.) on several occasions in 1981 and 1982 and both parties attended there for counselling on other occasions around that time.
On these occasions they were given advice either by a counsellor or by a doctor or by both. The petitioner thought that the marriage guidance counselling was about 1979 but this does not seem to tie in with the dates given by the C.M.A.C. As a result of advice given at the C.M.A.C. “to start courting again”, the parties tried to follow the advice given over three or four months and indeed this led to the only occasion on which the respondent initiated sexual relations. While the parties continued to reside together and to share the same bedroom, according to the petitioner they were maintaining a front to some extent and he went back to his relationship with his lady friend.
In about 1975, the parties had sold their home and had purchased a terraced house in the same road as his parents. Until February, 1989, the couple lived on and off in the same bedroom. According to the petitioner sometimes he slept in the same bed and sometimes on the couch. They did not make love very often. He was there most nights and he lived at home. In February, 1989, he moved into another house and after four months his lady friend, who owned the house, moved into the house. He said that about April, 1989, the respondent told him that she had been abused as a child and that she was going to the Rape Crisis Centre and could get her problem sorted out.
The petitioner said that the family home was in his name and was worth about £70,000, being a terraced house in a bad state of repair and with a mortgage of £22,000 with the Educational Building Society outstanding. The Society has brought proceedings with regard to arrears of instalments being in the sum of £6,376.48. Judicial separation proceedings brought in April, 1991, had been stayed pending the outcome of the nullity proceedings. The petitioner maintained that the respondent could not perform at the desired level of sexuality because she had been subjected to sexual abuse as a child. He said that the respondent had told him that she had been abused from the age of three by her father and that she had had to masturbate him when she was between the age of eight and fourteen. She did not like to be touched sensually. She could not stand the feel of pubic hair. He thought that she related this to her father but could not swear to this. Since June, 1993, he had been doing courier work and was earning £130 per week. He had paid £310 per month in maintenance and mortgage payments from February, 1989, to December, 1989, and then £320 per month until March, 1990. However, then the District Justice had discharged this order. He had paid mortgage instalments for some two or three months and then just stopped and was no longer paying either the mortgage instalments or maintenance to the respondent.
Under cross-examination the petitioner made it clear that his complaint was that the respondent could not perform at his desired level of sexuality. He conceded that he was a consistent social drinker and that he went out socialising most nights of the week and latterly, before he left home, he was out every night of the week. He also conceded that he had sexual intercourse with women other than his wife, including his present partner. He stressed that while his present relationship had gone on since 1978, he had discontinued this liaison while he and the respondent were attending the C.M.A.C. in 1981. He contended that they had really tried to make a go of the marriage and added that this had failed and a couple of months afterwards he had started to see his present partner again. He said that his marriage was gone in 1982 when the respondent would not go back to counselling. He added that they went to Rome in March, 1983, as a last resort; this was the only time they had gone away without the children and he thought that it might improve things. However, he added that he was seeing his present partner during that period. The petitioner denied the suggestion that his extra-marital affairs, his drinking and his insensitivity and lack of tenderness towards the respondent caused the breakdown of their relationship. He asserted that he still cared about and had affection for his wife.
The petitioner’s mother gave evidence. She impressed as a fine, sensible woman with a sympathy for both parties and her grandchildren and it was manifest that she and her daughter-in-law enjoyed a relationship of mutual respect and considerable affection. Not only had the respondent lived in her house prior to her marriage to the petitioner in 1973 but she had known the respondent as a school girl since she was 18 and indeed not only did she become a friend and a confidante of her future daughter-in-law but also was very supportive of both her son and her daughter-in-law and, living in the same terrace only a few doors away, it was clear that both the petitioner and the respondent and their children were in and out of her house and from time to time both they and then subsequently, the grandchildren lived in her house. She described these terraced houses as being late Victorian red brick houses with four bedrooms and three reception rooms. She confirmed much of the history of the marriage which was common case but also added certain evidence germane to the petitioner’s contention as to the respondent’s inherent abhorrence of sexual relations. She said that the respondent and her mother did not have a good relationship and that her mother had worked in a bar at night and was prone to heavy drinking. She said that on one occasion during a time of marital discord, which she initially placed in early 1979 but subsequently in or about 1982, her daughter-in-law called her and spoke to her across the remains of the back garden wall. The respondent said that she realised the problems were caused by her abuse by her father. However, she, the mother-in-law, did not ask the respondent what she meant as the problem was hers. She, the mother-in-law, had been shocked as her daughter-in-law had always had a close relationship with her father. However, she was relieved that it was not her son who had hurt her. She said that she felt they could get counselling and that the marriage might be saved. She further said that soon afterwards, within weeks, the respondent told her more about how she was abused from the age of three until she was fifteen by her father, particularly during her mother’s absence down the country at weekends. She related how her daughter-in-law had told her of a couple of other incidents when she was a youngster but I was left with the clear impression that the respondent did not go into details and her mother-in-law did not like to question her and no specific details were given. The respondent, however, did indicate to her mother-in-law that she did try to keep a sexual relationship with the petitioner and she wanted very much for her marriage to work. She described how she “would cook a nice meal and have a bottle of wine on the table and would be saying to herself that it would be different tonight but it didn’t happen”. The petitioner’s mother also described an incident while they were all on holiday in about 1981 when an altercation between her son and her daughter-in-law had roused the entire household from sleep and they had all left and returned home the next day. She confirmed that her son did drink and also said that she had advised them to move out and to get a home of their own and that it was only subsequent circumstances which brought them back to live in her house at times. She was not aware of anyone else in her son’s life (other than his wife) or of any other difficulties in the marriage. She said that she felt with help the marital situation could be sorted out. She made it crystal clear that she laid no blame on her daughter-in-law for what had happened. I have no doubt that the petitioner’s mother was most supportive, both emotionally and financially, to both the parties and to her grandchildren.
Dr. D., consultant psychiatrist, had interviewed the respondent on five occasions and the petitioner on four occasions separately and had prepared his report, on foot of the order of the Master, in February, 1993. His last meeting with each of the parties had been in April, 1993, after he had compiled his report. His report speaks for itself and I only propose to quote from his conclusions and from some parts of the report which have a particular bearing on the petitioner’s contention. I should add at this point that while the evidence of a consultant psychiatrist must carry considerable weight, nevertheless I am very conscious of the words of two of my colleagues on this aspect. Keane J. in U.F. (orse. U.C.) v. J.C. [1991] 2 I.R. 330 said at p. 344:
“How is the Court to decide what these phrases mean in the context of any particular case? Not certainly by reference to the evidence of psychiatrists; they can, of course, assist the courts as to the nature and extent of any mental illness suffered by a spouse, but it is the responsibility of the courts alone and not of psychiatrists, however eminent, to determine whether a decree of nullity should be granted. Consequently, it must be for judges alone to decide whether, in any particular case, ‘a caring or . . . considerate relationship’ or ‘a normal interpersonal relationship’ was incapable of being achieved or (perhaps even more difficult to measure) once achieved, sustained through all the various hazards of the matrimonial state.”
In K.W.T. v. D.A.T. [1992] 2 I.R. 11 Murphy J. in delivering his judgment said at p. 21:
“I am quite sure that even ten years ago no lawyer in Ireland would have suggested that a decree of nullity could be obtained in respect of a marriage which had subsisted for twenty years and within which three children had been born and were still living on the grounds of an inadequate emotional relationship between the parties. It is only in more recent times that the nature and substance of the matrimonial relationship has been more fully explored to establish and identify factors which have been at all times essential ingredients in that very special relationship. As the cases cited indicate much of this analysis has been carried out by psychiatrists, psychologists and social workers. It follows that their evidence is of paramount importance in dealing with cases of this nature. However at the end of the day it seems to me that I cannot abdicate my function to the experts however distinguished, even though they are, in the present case, in agreement on the point that the parties to the marriage did not have an adequate emotional capacity to sustain the relationship of marriage. The fact that the marriage at least in its outward form survived for such a lengthy period without apparent discord or obvious mental distress suggests that an adequate if less than satisfactory relationship was achieved. I am also struck by the fact that it appears from the report of Dr. B. that the respondent did achieve emotional maturity eventually though apparently subsequent to the stage at which the marriage had, in his view, irretrievably broken down. Again it seems to me that that evidence makes it clear that the emotional inadequacy of the respondent was not irreversible and to that extent presumably it was possible that their combined problems could have been resolved or ameliorated if during their lives together some event occurred which resulted in one or both of the parties obtaining the requisite advice and assistance at an earlier date.
I have come to the conclusion that the inadequacy of the emotional response of the parties one to the other was not of such a degree as would justify this court in granting a decree of nullity.”
There are useful guidelines as to how the court should approach and weigh the psychiatric evidence. In the conclusion of his report Dr. D. stated:
“On mental state examination both established a good rapport with me, were lucid and accessible and neither showed signs of abnormality in their mental state.
It is my opinion that neither suffer from any recognisable psychiatric disorder per se nor can I infer from their accounts that either of them have suffered from a psychiatric disorder in the past. There was obviously a major sexual problem within their marriage. The probability is that the respondent was inhibited sexually to a considerable degree. Neither partner had the skills or the maturity to overcome this sexual difficulty within their marriage. The histories I have obtained from both partners do not suggest a degree of personality disorder or general immaturity of a significant degree within the respondent. It seems to me that both were rather complacent in the matter of living with their relatives in a sort of half marriage and in not establishing a personally and socially structured relationship within their own house. This is not to represent either of them as being grossly immature but rather, given their youthfulness, their relative ignorance and the existing framework of support, there were enough comforts within that system for both of them to exist within it as a half solution to their problems. By the time they came to counselling, the problem was very well entrenched and they had developed separate and incompatible lifestyles.
At this point I cannot comment comprehensively on the intractability or otherwise of their sexual problem while acknowledging its overall severity. Generally, the treatment of sexual inhibition in women has a varied outcome. Some, particularly in a setting of ill-education or relative isolation, do very well from counselling. Among others, a deeper rooted antipathy to sexuality, perhaps arising from an over repressive or puritanical upbringing, persists despite treatment efforts. This is not necessarily associated with any characterological instability, and while the respondent may have been someone with problems pertaining to low self esteem and lack of confidence, the histories here do not suggest any gross disorder of personality. Finally, I cannot conclude one way or another whether they would have resolved their sexual difficulties if, say, they had presented for counselling at an earlier stage in their relationship.”
Other extracts from the report which seem to me to be particularly relevant are as follows:
“The petitioner’s main contention is that their marriage had little valid meaning because of his wife’s incapacity in relation to a sexual relationship which was present from the outset of their marriage. He speculates that this incapacity may have derived from a lengthy period during the respondent’s childhood and early adolescence in which she was abused sexually by her own father. He believes that the sexual problems in their marriage were the root cause of all the subsequent difficulties which led to their break-up. Finally, he believes that the respondent’s revulsion in relation to sexual relationships was such that the marriage was doomed to failure. The respondent agrees that there were sexual difficulties in her marriage. For her own part, she had a sheltered upbringing and knew little about sex or sexuality. She states that when she was a younger person i.e. at the time of their marriage, she believed, (and presumed this to be the case with other women at that time) that sex was primarily pleasurable for the man, and that the woman’s main role was to be compliant. She states that he was over demanding sexually and preoccupied with the mechanistic aspects of it. She herself felt that sex was an expression of love and believes that her husband was incompetent in this emotional area of sexuality. They both agreed that at a later stage in their relationship the petitioner spent less time at home and that he, in many ways, reverted to a bachelor style of life. The petitioner states that this happened because he was disenchanted and no longer hopeful about rescuing their relationship. The respondent sees this as an expression of selfish concerns and an example of his inability to be caring or responsible within a relationship. In relation to her childhood sexual abuse the respondent does not see this as the root cause of whatever sexual difficulties she may have had. She denies that she has particularly severe sexual difficulties, but rather that she was ignorant and shy sexually and this reflected her sheltered upbringing . . .
The petitioner says that in his own way he still loves his wife although he knows the relationship is finished and impossible to put together. The respondent also loves her husband. She accepts that their marriage is over but does not believe that it did not exist as a marriage in its time . . .
They both agreed that, apart from their sexual problems, the very early years of their marriage were reasonably happy years for them. The petitioner maintains that he has no real criticisms of her in relation to her capacities within the marriage, that is, apart from their sexual problem.”
Dr. D. in evidence also said that people of the parties’ generation were often ignorant of sexuality and arrived in the marital bed ignorant of sexual function. He said sexual inhibition is relatively common in this country and could affect up to 30% of couples. The respondent’s evidence with regard to her need for emotional support before intercourse tied in with the evidence that on one occasion she initiated sexual intercourse after such intimacies as this was in line with her needs. Dr. D. indicated that there were difficulties in determining in retrospect but that he thought there were a number of factors rather than a single factor which contributed to their difficulty. Both found it difficult to sit down and discuss their sexual difficulties; these can create enormous tensions within a relationship and couples often tried just to get on rather than confront such an issue. The respondent had been reluctant to discuss her dimly recalled abuse as a child; indeed she was not aware of this sexual abuse until some years into her marriage and it was dimly remembered, if at all. She could
recall her aversion to drink and cigarettes as evoking memories of childhood but maintained that abuse was not the chief cause of her difficulty or the petitioner’s reversion to a bachelor lifestyle.
The respondent gave evidence and appeared as a normal, frank woman. The tone and nature of her evidence as reported in this judgment is somewhat distorted by reason of the emphasis which, by reason of the petitioner’s contention, is necessarily placed on evidence in respect of sexual matters. The broad impression created by the respondent was of an entirely truthful woman who had been attracted to the petitioner from their first meeting as school children and who had always since had a deep love for him. They had gone out as boyfriend and girlfriend since they met in 1965 and in September, 1972, while they were engaged, they went on a week’s holiday around Ireland. She had shown very natural inhibitions about having intercourse before marriage on this occasion. In December, 1972, the petitioner had bought a small house and they were doing this up prior to their marriage in March, 1973. She had been residing at her future mother-in-law’s house since March, 1972, as relationships were not good in her own home. She had contributed to a joint savings account with the petitioner as she had been working as a secretary in a financial institution. After their marriage she was very happy and thought that life was good, despite their having some financial difficulties and living in her mother-in-law’s house. In summer, 1973, with her parents-in-laws’ help they had completed the decorating of the little house and they had moved in to live in it in August, 1973. The petitioner had been away as a traveller and then on a course in December, 1973, and so she had moved back to their room in her mother-in-law’s house. She enjoyed an excellent relationship with her mother-in-law and indeed she had been very well looked after by her parents-in-law. She said that in the months before she had her first child on the 26th May, 1974, to her, things were great between the petitioner and herself and all seemed normal. There were a few tensions in their sexual life as she had a difficult birth, having to have stitches and having suffered from an infection after returning home, but by July normal sexual relations had resumed and in August, 1974, their second child was conceived. She said that he complained about lack of sexual relations that she enjoyed sexual relations to a certain extent but was not adventurous sexually, and that the petitioner’s expectations were greater than hers. If he was tender and loving then she could cope, but if he had drink taken and was demanding then she would find it difficult, although she did enjoy sexual relations. Their eldest daughter was born on the 13th May, 1975. They decided to sell their own small home and to purchase a house in the terrace beside her mother-in-law’s house. Their third child was born on the 12th May, 1977, and they then moved into the terraced house. She was looking after three small children and doing the housework and the petitioner did a lot of work on the house. The petitioner meanwhile had been going out in the evenings and would be away for a couple of nights during the week. She was unwell during the summer of 1978 before their fourth child was born and had to have an operation for a tumour on her face. This tumour had regrown and during autumn, 1981, she had to have three further operations within six weeks on her face, which had left the left side of her face partly paralysed and this had taken a long time to recover. In October, 1978, before their fourth child was born, the petitioner would frequently come home from work, have a drink and then fall asleep and go to bed; he would then shower and go out for the evening; she would be at home with the children. She would find it difficult to respond to him sexually on his return and found him very demanding. In summer, 1981, they had attended the C.M.A.C. for marriage guidance counselling. The advice given was very helpful and she enjoyed having the petitioner’s undivided attention. The advice given to go back to courting, holding hands and being intimate without having sexual relations had been so helpful that on one occasion she had initiated sexual relations. She had become aware of the suggestion of his having a lady friend in 1981 but had not believed this as she had always trusted him, until he admitted this affair during the counselling. However, she had forgiven him as he had said that it would not happen again and she did not wish to lose him as she still loved him. To put it in a nutshell, she said that when the petitioner was gentle and caring she responded but if he came in at night with drink on him and was over-demanding, she did not respond. In March, 1983, they had gone to Rome for a friend’s wedding and had had a great time and in particular she had enjoyed their sexual relations. In 1984, the petitioner had ceased his employment and wanted to set up his own business. He was at home for a couple of months and the petitioner himself felt that they were very close at that time and things had been grand. Then his own business got going and he started drinking and going out again in the evenings and spending nights away from home. In 1987, she was in hospital for some weeks with a painful disc problem. Both his business and their relationship had gone downhill from 1987.
From 1986 to 1989, the respondent had attended the Rape Crisis Centre. From sessions there vague memories had come back to her of her being abused sexually as a child. She now recalled her father masturbating himself with her assistance and she also mentioned a couple of incidents during parties in her parents’ home when members of the gardaí had made sexual advances towards her. Under cross-examination she vehemently denied that she avoided being alone with the petitioner and indeed asserted that she loved to be alone with him and she refuted that she had an abhorrence of intercourse and of anything to do with sex. During the first year of their marriage they had made love regularly; she had preferred the light to be off and did not like her night-dress to be removed. She agreed that she was inhibited sexually but denied that this was from sexual abuse. She was a shy person sexually and would not be adventurous sexually. She had no memory of having been sexually abused and such memories were not influencing her. She said that she responded emotionally and sexually to the petitioner when he was tender and loving to her but that when he was aggressive and came in at night drunk and would wake her up, then she did not respond. Their relationship had deteriorated in 1980, but improved after counselling and in 1984, they had had a good relationship. He was spending time at home setting up his business. However, then he had started going out in the evenings again and reverted to the life he had been living before. It was repeatedly put to the respondent that she had told the petitioner “to get sex elsewhere”; she said that she did not recall ever saying that earlier than 1988 and that, if she had said it, then it would have been in 1988 when he was staying out a lot. It may be useful if I interject here that I would not put much weight on such a remark made in the heat of moments of matrimonial stress. I certainly would not interpret this remark, if made, as an invitation to marital infidelity and I could well understand it as a verbal reaction to a husband frequently out socialising in the evening, and who has showered and dressed before going out, and who returns smelling of perfume and of alcohol and redolent of admitted infidelity. The respondent spoke particularly poignantly of their relationship having revived in 1984 when the petitioner was starting up his own business and when their children were at school and they were spending much time together; she said that they had intercourse a couple of times a day at that time and they got on well together. However, once his business got going and he had money in his pocket after May, 1984, then he started going out again in the evenings and not coming home at night; other nights he would come home drunk and would be sexually demanding and she found it difficult to be responsive.
I have recited the facts of this case at considerable length as I have sympathy for the plight of both the parties in this case. The respondent herself referred to the petitioner’s virility and his need for sexual relations. She candidly described her own sexual inhibitions. She manifestly had a deep love for her husband and he also averred that he always had a considerable affection for his wife, although he allowed his sexual frustration to lead to marital breakdown.
Counsel for the petitioner contended that the respondent was unable at the time of the marriage to enter into and sustain a marital relationship especially a sexual relationship involving a reasonable degree of frequency of love-making. He suggested that the court would have to decide whether the wife’s alleged inability was due to her childhood experiences and whether these prevented her from sustaining a normal marital relationship or whether such inability was due to the husband’s failure to provide an appropriate ambience for love-making. Both counsel agree that the test would have to be applied retrospectively to the time of the marriage. By way of preliminary remarks I have to say that I agree with Dr. D.’s comment that it is difficult to look back from the present state of affairs and to make determinations, in retrospect, in respect of inherent characteristics of the respondent’s personality at the date of her marriage on the 23rd March, 1973. I accept that when it comes to making these assessments and determinations that “the buck stops here” with the court and in this respect I have already quoted passages from the judgments of Keane J. and Murphy J. above. This case does not turn upon impotence, frigidity or such conditions as are susceptible to description in precise and clinical medical terms. In this country there have always been considerable inhibitions with regard to discussion of sexual matters. I have no doubt that many couples have problems of sexual inhibitions and that many couples have difficulties relating to sexual matters which are capable of resolution with professional advice. There having been four children born of this marriage, there are four walking contradictions of the contention that there was sexual incompatibility on the part of this couple. I am not aware of any case from which I can derive guidelines as to what the test should be as to what is an acceptable quantity or quality of sexual intercourse.
Some years ago there would probably have been, at most, three cases of nullity brought in a year. Since the Supreme Court decision in U.F. (orse. U.C.) v. J.C. [1991] 2 I.R. 330, there has been a huge increase in these cases and I am aware of three decrees of nullity having been granted in one day by the High Court. It is surprising, therefore, to find that counsel in this case were each able to argue cogently for a differing standard of proof to be applied. I propose to set out the opposing contentions of counsel although for the purposes of my judgment, as will appear subsequently, I do not in fact have to resolve this particular issue. In the leading case of in U.F. (orse. U.C.) v. J.C. [1991] 2 I.R. 330 the Supreme Court held that the analogy drawn between the question of impotence and the incapacity to enter into and sustain a proper marital relationship would appear to be valid not only in cases where that incapacity arose from psychiatric or mental illness so recognised or defined, but also in cases where it arose from some other inherent quality or characteristic of an individual’s nature or personality could not be said to be voluntary or self-induced. In that case a nullity was granted to a petitioner whose husband had strong homosexual proclivities. In the course of his judgment, at p. 360, McCarthy J. said:
“It is, in my view, unthinkable that one of the parties who is totally ignorant of that proclivity in the other should be held to have entered into a valid contract of which one of the implied but most important terms is the commitment to physical consummation and mutual satisfaction.”
Counsel for the petitioner in the context of the present case relies heavily on the words “mutual satisfaction”. As to the burden of proof McCarthy J. at p. 358 said:
“In my judgment in N. (orse. K.) v. K. [1985] I.R. 733 I stated at p. 755 of that report:
‘A petitioner must establish the case upon the balance of probabilities standard but this must take into account the frequent absence of opposition, the possibility of collusion and so forth.’
If the observations of Kenny J. in S. v. S. (Unreported, Supreme Court, 1st July, 1976) mean, as apparently in the instant case Keane J. thought, that there is a greater onus imposed upon a petitioner, then in my view, this was an incorrect statement of the law applicable in this jurisdiction. There may have been a misunderstanding of the reference to the Constitution contained in N. (orse. K.) v. K. [1985] I.R. 733; the guarantee protects the institution of marriage but it does not presuppose the existence of a valid marriage in any given case so as to increase the burden of proof where a petitioner calls in aid s. 13 of the [Matrimonial Causes and Marriage Law (Ireland) Amendment] Act of 1870. It begs the question to say that the constitutional guarantee endorses, for instance, the citation from Lord Birkenhead in C. (orse. H.) v. C. [1921] P. 399. The burden of proof point only arises where there is an issue of fact. There was no such issue here. The point is irrelevant to the issue as to what constitutes incapacity.”

In N. (orse. K.) v. K. [1985] I.R. 733 McCarthy J. at p. 754 said:
“Marriage is a civil contract which creates reciprocating rights and duties between the parties but, further, establishes a status which affects both the parties to the contract and the community as a whole. The contract is unique in that it enjoys, as an institution, a pledge by the State to guard it with special care and to protect it against attack, with a prohibition against the enactment of any law providing for the grant of a dissolution of marriage (Article 41, s. 3 of the Constitution). This constitutional prohibition emphasises the durability that is peculiar to the contract of marriage and the consequent need for a full appreciation of what that contract entails and that one is wholly free to enter into it or not.
As was said by Costello J. in Murray v. Ireland [1985] I.R. 532:
‘The Constitution makes clear that the concept and nature of marriage, which it enshrines, are derived from the Christian notion of a partnership based on an irrevocable personal consent, given by both spouses which establishes a unique and very special life long relationship.’
These qualities have a two-fold effect: to enhance the sanctity and durability of the marriage contract and to highlight the need of a true voluntary consent, based upon adequate knowledge and freed from vitiating factors commonly described as undue influence or duress, particularly those emanating from third parties. In Griffith v. Griffith [1944] I.R. 35 Haugh J. cited and examined a number of decisions of the English courts as well as that of Hanna J. in McM. v. McM. and McK. v. McK. [1936] I.R. 177 and he concluded at p. 44:
‘So much for the general principles, which I summarise as follows: Duress or intimidation may produce a fear that may lead to marriage, but if such fear is justly imposed, the resulting marriage when contracted is valid and binding. Fraud or misrepresentation alone, and without duress, will not invalidate a marriage, unless it produces the appearance without the reality of consent.’
In K. v. K. (Unreported, High Court, O’Keeffe P., 16th February, 1971) this approach of Haugh J. was applied but it and a number of other cases were reviewed at length by O’Hanlon J. in K. (M.) v. McC. (F.) [1982] I.L.R.M. 277.
‘If a fear leading to marriage is produced by duress or intimidation or, indeed, ignorance itself, I can find no logic in excusing such fear because it is ‘justly imposed’. It may well be that options are presented to the prospective spouse, but if it is an option without any real choice, it is no option at all. If a partner to the alleged contract has entered into it as a result of pressure offering little option, however bona fide that pressure may be, however well meaning indeed the sources of that pressure, how can it be said that the prospective partner is exercising a true free will? Analyses of the concepts of duress, undue influence, other forms of pressure or fraud seem to me likely to lose sight of the key question in any contract was there a voluntary consent? The helpful article by Paul A. O’Connor of University College Dublin in ‘Recent Developments in the Irish Law of Nullity’ (1983) 5 D.U.L.J. (N.S.) 168 illustrates the changing attitudes in judicial decisions so circumscribed by what was thought to be compelling authority. In this regard I find little assistance in decisions of courts in England where the contract of marriage does not enjoy the same constitutional protection as it does in Ireland. The test whether or not each party to the contract brought an informed and willing consent to it in my view is a subjective one, and the burden of proof lies upon the petitioner for a declaration of nullity. I do not subscribe to any qualifications on the burden of proof such as cited at page 169 of Mr. O’Connor’s article. A petitioner must establish the case upon the balance of probabilities standard but this must take into account the frequent absence of opposition, the possibility of collusion etc.’.”
In U.F. (orse. U.C.) v. J.C. [1991] 2 I.R. 330 Finlay C.J., with whose judgment three of his colleagues agreed, said at p. 354:
“I am satisfied that this appeal should be allowed upon the grounds that the incapacity of one of the parties, by virtue of a homosexual nature, to form or maintain a normal marital relationship with the other party is a valid ground for nullity, and that on the facts and evidence as accepted by the learned trial judge the only reasonable conclusion which can be drawn is that the respondent in this case was so incapable.”
He sets out the conclusions of the trial judge and then states:
“In reaching these particular conclusions the learned trial judge appears to have relied on an assertion that the onus of proof on a petitioner seeking a decree of nullity on any grounds is a very high onus, it being necessary to establish the appropriate facts beyond a reasonable doubt and that from this principle dealing with the burden of proof there can be construed a particular restriction on the development of the legal principles applicable to the grounds of nullity.”

In his decision in R.S.J. v. J.S.J. [1982] I.L.R.M. 263, at p. 265, Barrington J. concluded that it followed that if it could be shown that at the date of the marriage the petitioner through illness lacked the capacity to form a caring or considerate relationship with his wife, he would be prepared to entertain this as a ground on which a decree of nullity might be granted. To some extent his conclusion to that effect was based on an analogy with the law of impotence which had always been accepted as a ground for avoiding marriage and in the course of his judgment he states at p. 264 as follows:
“The law has always accepted impotence as a ground for avoiding a marriage. But in ways, what is contended for here is a much more serious impediment to marriage. No doubt there have been happy marriages where one of the parties was impotent. But it is impossible to imagine any form of meaningful marriage where one of the parties lacks the capacity of entering into a caring or even a considerate relationship with the other.”
The Chief Justice accepted both these statements of principle as being correct and as being material to the issues before the Court and he pointed out that the analogy correctly drawn by Barrington J. in that case between the question of impotence and the incapacity to enter into and sustain a proper marital relationship would appear to be valid not only in cases where that incapacity arose from psychiatric or mental illness so recognised or defined but also in cases where it arose from some other inherent quality or characteristic of an individual’s nature or personality which could not be said to be voluntary or self-induced. At p. 358 the Chief Justice stated:
“With regard to the issue of the burden of proof necessary for a petitioner to establish the facts in a claim for nullity based on any grounds, I have come to the following conclusions. I am not satisfied that it is in any way relevant to a determination of what are or are not permissible grounds for nullity. It is dealt with, though very shortly, and in a dissenting judgment, as I have already indicated, in the reasons given by Kenny J. in S. v. S. (Unreported, Supreme Court, 1st July, 1976). It was dealt with again in a contrary sense by McCarthy J. in N. (orse. K.) v. K. [1985] I.R. 733. My recollection would be that the issue of the burden of proof was not raised as a contentious issue between the parties in that case, and I do not think that it can be inferred, as the learned trial judge infers in his judgment in this case, that the absence of mention of the burden of proof in the other judgments of the Court in that case can be taken as an affirmation of any previous view concerning it. In the view which I take of the primary facts accepted by the learned trial judge in this case, which is that the only reasonable inference from them is that the petitioner has established the ground for nullity which, in my view, exists in law, the question of the burden of proof does not arise for determination. I would prefer, therefore, to leave it for determination in a case in which it is necessary for the decision of the case and, hopefully, might receive an argument on both sides of the question.”
Thus the Chief Justice and three other judges of the Supreme Court expressly declined to deal with the issue of the quantum of the burden of proof. In an article in (1983) 5 D.U.L.J. (N.S.) 168 referred to by McCarthy J., Professor Paul O’Connor at p. 169 helpfully sets out the older view with regard to the quantum of proof required as follows:
“Thus, once it has been established that the parties have gone through a ceremony of marriage ‘a very strong presumption’ arises in favour of its validity ( Mulhern v. Cleary [1930] I.R. 649 at 669, Griffith v. Griffith [1944] I.R. 35 at 39). The onus of proof rests on the party who asserts that the marriage is a nullity. In addition, the standard of proof which must be met in order to satisfy a court in a nullity suit is high; much higher than the balance of probabilities standard which is normally applicable in civil cases. The exacting nature of this standard can be gleaned from the case law where it has been held that the case for nullity must be established ‘with a high degree of probability’ ( S. v. S. (Unreported, Supreme Court, 1st July, 1976 at pages 3-4) or ‘by strict and thoroughly satisfactory proof’ ( B. v. D. (High Court, Unreported, 20th June, 1973, page 2) or ‘clearly, unequivocally and beyond doubt . . . according to the legal principles applicable thereto’ ( McM. v. McM. and McK. v. McK. [1936] I.R. 177 at page 185). Judicial insistence upon these onerous evidential requirements is designed, inter alia, to prevent unhappily married spouses from subverting public policy which is opposed to the provision in this jurisdiction of any grant for the dissolution of marriage.”
In U.F. (orse. U.C.) v. J.C. [1991] 2 I.R. 330 Keane J., in the High Court carefully set out the historical background to the present law of nullity and, while the Supreme Court preferred the wider grounds for a declaration of nullity, his views with regard to the historical background to the law of nullity are instructive. He says at p. 337:
“The origins of the law of nullity are to be found in the Canon Law which prevailed throughout Christendom before the Reformation. Prior to the disestablishment of the Church of Ireland, that law was administered in Ireland by ecclesiastical courts. However, under the Matrimonial Causes and Marriage Law (Ireland) Amendment Act, 1870, the jurisdiction exercised by the ecclesiastical courts prior to disestablishment was transferred to a judge of the Court of Probate. By a statutory process which it is unnecessary to set out in detail, that jurisdiction ultimately became vested in the High Court by virtue of the Courts (Supplemental Provisions) Act, 1961. Accordingly, our law of nullity is still regulated by the Act of 1870, and in particular by s. 13 of that Act which requires the court to proceed on principles ‘which in the opinion of the . . . court, shall be as nearly as may be conformable to the principles and rules on which the ecclesiastical courts of Ireland have heretofore acted and given relief’.”
Some features of this nullity jurisdiction must be borne in mind. While it originated in the pre-Reformation canon law, it is clear that the general body of that law was not imported into England or Ireland; the marriage law of both countries as dispensed in the Spiritual Courts was, however, undoubtedly founded on the cannon law. In the words of Kenny J. (whose judgment was unanimously affirmed by the Court of Appeal) in Ussher v. Ussher [1912] 2 I.R. 445 at p. 459:
“So far did those latter [Spiritual] Courts extend their authority, that eventually they assumed exclusive cognisance in regard to the validity of marriages and were habitually referred to by the King’s Courts for their opinion and decision. It may, therefore, be assumed that the marriage law of England was to all intents the Canon Law as administered in the Ecclesiastical Court, sometimes referred to as the ‘Court Christian’.”
The importance of this historical background to our law of nullity is obvious. Since that law was based on the canon law as administered in Spiritual Courts, it always laid stress on the sacred and indissoluble nature of the marriage bond. Hence the caution and circumspection repeatedly enjoined on courts in this area. In the words of Lord Selborne L.C. in Cuno v. Cuno (1873) 2 H.L. (S.C.) 300:
“To open the doors to lax and easy declarations of matrimonial nullity would be a grave public mischief and it is therefore imperative to proceed only upon strict and thoroughly satisfactory proof.”
That this approach necessarily required a different and higher degree of proof than that usual in civil proceedings was made clear by Lord Birkenhead L.C. in C. (orse. H.) v. C. [1921] P. 399 where he said:
“The petitioner must remove all reasonable doubt, for she has undertaken the burden of proof.”

Hanna J. in McM. v. McM. and McK. v. McK. [1936] I.R. 177 had no difficulty in finding that this principle continued to operate in our law of nullity after independence stating at p. 185:
“There is a great responsibility on the Court to see that the cases are brought bona fide and are clearly, unequivocally and beyond doubt established according to the legal principles applicable thereto.”
It was not, of course, solely the origin of the jurisdiction in the Ecclesiastical Courts which led to this emphasis on the necessity for strict proof. The civil law recognised marriage as a contract which was in many respects governed by principles applicable to the law of contract generally. But, even in a purely secular context, it was a contract with a special and distinguishing feature, since it conferred a status recognised by the law on the parties to the contract. Hence, the contract was immediately distinguishable from the vast mass of everyday contracts, since the parties could never put an end to the status created by the contract simply by their mutual agreement to that effect. Again the courts were at pains to ensure the parties were not seeking to escape from the bonds of a marriage which had failed by invoking a jurisdiction intended for a wholly different purpose. This was probably of even greater significance in Ireland, where the jurisdiction given in England in 1857 to the Court of Divorce and Matrimonial Causes to grant decrees a vinculo, thereby enabling the parties to remarry, never existed. As is well known, the power of the Imperial Parliament of Westminster to enact private bills for divorce on the petition of persons domiciled in Ireland was not exercised by the Oireachtas of Saorstat Eireann which never adopted the requisite standing orders or legislation. It is also worth noting that Hanna J. considered that failure to observe the strict requirements of the law of nullity would enable “discontented spouses to find an easy road to circumvent, not only the law, but also the established public opinion which exists in this country against divorce . . .” What was the effect on this pre-existing law of the enactment of the Constitution of Ireland, 1937? Under Article 50, the laws in force in Saorstat Eireann immediately prior to the date of the coming into operation of the Constitution continued to be of full force and effect “subject to this Constitution and the extent to which they are not inconsistent therewith”. This Article clearly preserved the existing law of nullity as part of our law. But the public policy which underlay that law and which precluded the courts from granting “lax and easy declarations of matrimonial nullity” was emphatically reinforced by Article 41, s. 3 in these terms:

“1. The State pledges itself to guard with special care the institution of Marriage on which the Family is founded, and to protect it against attack.
2. No law shall be enacted providing for the grant of a dissolution of marriage.”
In R.S.J. v. J.S.J. [1982] I.L.R.M. 263 Barrington J. said:
“It has always been held that a heavy onus of proof rests on a person seeking to establish that a marriage prima facie valid is in fact void. How heavy Haugh J. regarded the onus is illustrated by his judgment in Griffith v. Griffith [1944] I.R. 35. In that case Haugh J. stated at p. 53 that he would not have acted on the mere telling of the petitioner’s story ‘even if I were inclined to believe it’ but for the fact that there was very strong corroborative evidence. This appears to me to be putting the onus very high, and I prefer to regard it merely as a warning that a judge should be cautious before accepting the evidence put forward for a petition in a nullity suit.”
In S. v. K. (Unreported, High Court, Denham J., 2nd July, 1992) Denham J. said with regard to the burden of proof and onus of proof:
“The onus of proof is on the Petitioner. There is a presumption of law that the marriage is valid. The Petitioner carries a heavy burden to discharge to show that the marriage is invalid.
In McM. v. McM. and McK. v. McK. [1936] I.R. 177 at p. 187 Hanna J. stated that petitioners based on impotence are to be established”clearly, unequivocally and beyond reasonable doubt . . .”However, that may well be the high-water mark of the law on the burden of proof in this type of case. In practice the courts have been requiring a high but less demanding burden than that in criminal cases. There have been obiter dicta to the effect that the burden of proof is that of the balance of probabilities. Thus in N. (orse. K.) v. K. [1985] I.R. 733 at p. 755 McCarthy J. stated:
‘A petitioner must establish the case upon the balance of probabilities standard but this must take into account the frequent absence of opposition, the possibility of collusion, and so forth.’
In this case the situation has been fully presented. The petition has been opposed by the Respondent. I have had the benefit of hearing in evidence both the Petitioner and the Respondent, who are manifestly honest witnesses. Both Dr. Fahy and Dr. Carney gave lengthy evidence. There were other manifestly truthful witnesses who gave evidence. In view of the constitutional protection of the institution of marriage it is quite clear that there is a heavy burden of proof on the Petitioner. There is a severe and heavy burden on the Petitioner of a quasi-criminal trial nature. However, in view of the evidence in this case, I am satisfied that the Petitioner has discharged that burden.”
I have set out these opposing views with regard to the burden of proof from respect for the diligence of counsel in citing the authorities in regard to this conflict. It is clear that this is a problem which awaits resolution by the Supreme Court in a suitable case. I am inclined to the view that the burden of proof is on the balance of probabilities but that the court must exercise particular caution and scepticism in scrutinising the evidence proffered, bearing in mind that frequently in these cases there has been an irretrievable breakdown of the relationship between the parties and there is often no legitimus contradictor to the case being made by the petitioner. I am reinforced in this view by the words of Hency J. in Banco Ambrosiano S.P.A. v. Ansbacher & Co. [1987] I.L.R.M. 669 at p. 701:
“If, as has been suggested, the degree of proof of fraud in civil cases is higher than the balance of probabilities but not as high as to be (as is required in criminal cases) beyond reasonable doubt, it is difficult to see how that higher degree of proof is to be gauged or expressed. To require some such intermediately high degree of probability would, in my opinion, introduce a vague and uncertain element, just as if, for example, negligence were required to be proved in certain cases to the level of gross negligence. Moreover, since in this jurisdiction many civil cases involving fraud are tried by juries, it would be difficult for a trial judge to charge a jury as to this higher degree of proof without running the risk of confusing the jurors.
In any event, it is difficult to put forward a rational and cogent reason for singling out civil cases of fraud for this higher degree of proof. It is of course to be said that a finding of fraud usually carries with it a high degree of moral condemnation which may have serious consequences for the person so condemned. But similar consequences may follow from a finding against a defendant in other types of civil proceedings. For example, if a doctor fails for no good reason to go out to attend a patient to whom he has been summoned, so that the patient dies, the doctor may be held liable in negligence to the dependants of the patient. In such a case the moral condemnation involved, and the social and professional consequences to the doctor, may be no less serious for him than if in another case he were to be found to have acted fraudulently. Yet the action in negligence would be decided on the balance of probabilities.

I am unable therefore to discern, in principle or in practice, any rational or cogent reason why fraud in civil cases should require a higher degree of proof than is required for the proof of other issues in civil claims.”
If this thinking applies in fraud cases then I see no reason why the same test and measure should not be applied in cases of nullity. I do not have to decide the question of which quantum of burden of proof should apply in this particular case as I have reached the conclusion that the petitioner has failed to succeed both on the balance of probabilities criterion and, accordingly, so much the more on any more stringent test. Counsel for the petitioner contended that this marriage should be annulled because the respondent suffered from an inherent personality problem which at the time of their marriage prevented her from having a sexual relationship with her husband involving a reasonable degree of quality and quantity of sexual intercourse. Insofar as there was any conflict of evidence in this case, and such conflicts were relatively few, I accept the evidence of the respondent. The petitioner’s contention is that the respondent found sexual intercourse abhorrent. She, for her part, says that she found sexual intercourse abhorrent only in certain circumstances, namely in the context of his being over-demanding, failing to create a loving and tender ambience and having injured her affection and self esteem by indulging in extra-marital affairs. There were four children born of this marriage and these would appear to be living contradictions to the contention that the marriage was inadequate, at least in so far as procreation considerably above the present norm in this country for the production of children was concerned. I accept the respondent’s evidence that the husband was virile and often took drink and then was over-insistent and untimely in his demands. I also accept her evidence, which was largely borne out by his own evidence, that the marriage was happy, allowing for the usual ups and downs, except in relation to matters of sexuality. Counsel for the respondent pointed out that the petitioner in evidence never mentioned his wife’s illness or her operations or that she had a bad back for a time. While being sympathetic to his sexual frustration and acknowledging the difficulties which this can cause to a harmonious relationship, nevertheless, as counsel for the respondent pointed out, there is nothing abnormal in a wife who rejects advances from a husband who has had too much to drink and comes home smelling of the perfume of another and who has admitted to having affairs. Moreover sexual inhibitions are not unusual in the social and educational conditions in this country.

Indeed I suspect that in Irish society generally there tends to be reticence about discussion of reproductive physiology, the urgency of the sex drive, sexuality and its effect on the happiness or otherwise of a couple living together.
This reticence inhibits a sympathetic understanding of sexual problems, particularly sexual frustration and its corrosive effect on what might otherwise be a loving and effective marital relationship.
On the consultant psychiatrist’s evidence and from my own observations of the parties, both seemed perfectly normal in their mental state. I have come to the conclusion that the sexual relationship between the parties could well have flourished and have become more satisfactory from the petitioner’s point of view if he had devoted more care and attention to creating the proper, tender and loving ambience which his wife required. I suspect that her inhibitions were probably no greater than the inhibitions of many happily married wives in this country and I reject unequivocally the contention that she suffered from any insurmountable inherent personality problem which derived from her childhood experiences. I am inclined to the view that his sexual infidelity caused a deep loss of trust and also was a deep cause of hurt to his wife which exacerbated her lack of appetite to respond to his sexual demands. I think that many couples when they get married suffer from the same measure of emotional immaturity as the parties in this case. I reject the suggestion that the respondent was incapable of sustaining a viable marital relationship. I am reinforced in this view not only by the existence of their four children but also the evidence that there was a revival of a good relationship between them, including their sexual relationship in early 1984. I think that this marital relationship was capable of being permanent and of flourishing to their mutual satisfaction if it had been nurtured with due solicitude on the part of the petitioner. In particular I do not think that the sexual abuse suffered by the respondent as a child had any serious or lasting effect upon her. I also discount the suggestion that the heavy drinking of her mother or their housing conditions had any great effect on their subsequent marital relationship. I reject the notion that the wife had an inherent abhorrence of sexual relations and, if necessary, I would ascribe the subsequent marital difficulties to the husband’s infidelity rather than to any permanent character defect of the wife.
I accept that I am bound by the law as laid down by the Supreme Court in U.F. (orse. U.C.) v. J.C. [1991] 2 I.R. 330 and in particular by the finding that the analogy drawn between the question of impotence and the incapacity to enter into and sustain a proper marital relationship would appear to be valid not only in cases where that incapacity arose from psychiatric or mental illness so recognised or defined, but also in cases where it arose from some other inherent quality or characteristic of an individual’s nature or personality which could not be said to be voluntary or self-induced. I take inherent quality or characteristic to mean some persistent, abiding and permanent characteristic which a person is likely to be imbued with on a long term basis. Having made it clear that I have applied the principles set out in Court in U.F. (orse. U.C.) v. J.C. [1991] 2 I.R. 330 as I understand them, I should add that in reaching my determination in this case I have ignored the property aspects and also the likely effect of a decree of nullity on the four children of this marriage. I have reached my conclusion on my assessment of the manner of the giving of the evidence and the content of the evidence as it has been perceived by me. However, if I had been persuaded in this case to incline towards a grant of nullity, I would then have taken certain other matters into account, namely that the house property is vested in the petitioner’s name and the respondent manifestly contributed to the purchase of the house property, not only by her initial contributions to the deposit and payment of the mortgage instalments, but also by her work and labour in the house as wife and house parent; also that this couple were ostensibly married from the point of view of the community in which they lived for about twenty years and they regarded themselves as so married and each acted on this basis both to their advantage and to their detriment. I would also have considered arguments as to whether justice would best be served in all the circumstances were the court to grant such a decree of nullity bearing in mind the lapse of time, the existence of the children and other factors.
As for the criterion which the court has to apply in such a case, while accepting that the buck stops here with the court, nevertheless I think that it is worth echoing the words of Keane J. at p. 348 of U.F. (orse. U.C.) v. J.C. [1991] 2 I.R. 330:
“It could indeed be said that the development by the courts of the law of nullity in a fragmented and ad hoc fashion is particularly undesirable. It cannot be regarded as satisfactory that questions of status should be shrouded in uncertainty: save in the most unusual circumstances, a person should be able to answer immediately and unequivocally the question ‘am I married?’ Of how many marriages can it be said, if these decisions represent the law, that the possibility exists of their being set aside on elusive criteria of this nature? Nor must it be forgotten that by such a process the children of the marriage find themselves overnight the children of a non-marital union. The legal status of such children has been happily eased by the Status of Children Act, 1987: it remains the fact that as a result of a decision arrived at in proceedings in which they are not heard, children may find themselves relegated to being members of a family which no longer enjoys the privileged status accorded by the Constitution to the family based on marriage: see The State (Nicolaou) v. An Bord Uchtála [1966] I.R. 567. It is, of course, true that the courts have been at pains to insist that children of such unions enjoy the same rights under the Constitution as children of families based on marriage. It remains undesirable, to put it no more strongly, that under a Constitution which extends such special recognition to the family based on marriage, a child, save in the most exceptional circumstances, should find himself or herself withdrawn from that unit and categorised as a member of a unit which does not enjoy the same status in our Constitutional hierarchy of values.”
For the reasons set out in the antepenultimate paragraph above, the petition must be refused on all the grounds put forward.

 

 

 

 

 

J.S. v. C.S. (orse. C.T.)

[1997] 2 IR 509
Budd J.

Budd J.
14th October 1996

Three motions in this nullity suit came before this Court. The first motion was an appeal from the order of the Master made under O. 36, r. 4 and O. 70, r. 32 of the Rules of the Superior Courts on the 17th April, 1996, appointing Dr. G.B. as medical inspector for both parties in the above entitled action.
The second motion was a motion for directions and orders under O. 70 of the Rules. This motion was brought by the petitioner, adopting a”belt and braces” approach, in case the respondent should succeed in her contention that the Master had no jurisdiction to make the order appointing a consultant psychiatrist as a medical inspector in a contested application. The petitioner’s “fall-back position” is that the High Court itself at least has the power to make such an appointment and should do so in the circumstances of this case.
The third motion was in respect of an order for alimony pendente liteand while all three motions were more or less heard concurrently, this aspect was resolved after some airing before the court and an order was made by the court on foot of agreement between the parties.
Background
The parties went through a ceremony of marriage in a Roman Catholic church in Dublin on the 9th September, 1978. Both are Irish citizens and of Irish domicile. They have lived together at four addresses in Dublin and three children were born to them, namely D.S. in 1979, E.S. in 1980 and H.S. in 1989.
An answer strongly contesting the contents of the petition has been filed. The issues fixed by the Master to be tried involve matters not only of capacity to give consent but also include at least six issues concerning the capacity of the psyche of one or other or both of the parties to enter into and sustain a normal marital relationship.
The cases of D. v. C. [1984] I.L.R.M. 173, a decision of Costello J., R.S.J. v. J.S.J. [1982] I.L.R.M. 263, a decision of Barrington J. and U.F. (orse. U.C.) v. J.C. [1991] 2 I.R. 330, a decision of the Supreme Court, all recognise the advances in knowledge of the psyche and that a decree of nullity can now be granted where the court concludes that a spouse, because of an emotional disability or incapacity, or an inherent quality or personal characteristic, at the time of the marriage was unable to enter into and sustain a normal marital relationship. Accordingly, it might appear that an appeal against the Master’s order appointing a consultant psychiatrist as a medical inspector in a case involving these typres of issues would be tantamount to an invitation to the court to adopt the sedentary position of King Canute awaiting the incoming tide of psychiatric and psychological evidence. However, the diligent research and cogent arguments of counsel on both sides have given cause for reflection on the issues raised in both these motions. They can be disposed of in tandem. I propose to deal in sequence with each proposition put forward by the respondent (who is the “wife”), and then to set out the refutation thereof contended for by the petitioner. I shall refer to the “husband” as”the petitioner” and the “wife” as “the respondent” for the sake of clarity. I might add that “when a marriage has been celebrated in a proper form between apparently competent partners, there is a presumption of law in favour of its validity” per Griffin J. in N. (orse. K.) v. K. [1986] I.L.R.M. 75 at page 89. The onus of proof is on the petitioner to satisfy the court, which approaches claims for annulment cautiously and scrutinises the evidence carefully for it is not “a Court of convenience to release ill assorted spouses from a marriage bond because it has become irksome to one, if not to both” (Hanna J. in McM. v. McM. [1936] I.R. 177).
A marriage may be void because of:
1. a previous existing marriage;
2. where one party was under age;
3. where the marriage was between persons within the prohibited degrees of relationship;
4. an invalid ceremony of marriage;
5. a prohibition which applied under “an Act to prevent marriage of lunatics” of 1811; and
6. defective consent.
In addition, two grounds only render a marriage voidable, namely, the inability of either party to consummate the marriage and the inability of either party to enter into and to sustain a normal marital relationship. A voidable marriage may be subject to approbation in that grounds for annulment may exist but it may be refused where a petitioner has acted in such a way as to accept the validity of the marriage. Ratification, likewise, can be invoked where a marriage is allegedly void for want of consent. This may seem illogical, but in a marriage void for want of consent and in a voidable marriage, a party can, by his or her conduct, prevent such a marriage from being annulled. In the present case, there are three children and it may be that these will be regarded as “walking ratifications” of the marriage. The respondent also relies on the constitutional protection of marriage of which she can avail unless and until the marriage is declared null and void. Since the scope of nullity on grounds of incapacity has been widened, it would seem that the court should consider whether the petitioner’s approbation would render the granting of a decree of nullity unjust and that the court should also take into account lapse of time as a factor in applying the doctrines of approbation and ratification.
Another factor in the background is the extent to which the court should rely on the evidence of a consultant psychiatrist. There are obvious perils in relying on psychiatric evidence which at least to some extent may be based on second-hand accounts by others given in interviews about the petitioner or the respondent. In some unopposed nullity cases, the consultant psychiatrist gives an opinion verging on the ultimate issue which the court is going to have to decide, namely, whether one or other of the parties suffered from such illness at the time of the ceremony of marriage as to be incapable of entering into and sustaining a viable marital relationship. In some ways, the new ground of nullity is comparable to impotence. Impotence had to be incurable if a petition for nullity was to succeed. Thus, it may be that it becomes relevant to consider whether the party alleged to be afflicted with illness is constitutionally incapable, either through his or her own efforts, or with the aid of medical treatment, or both, of bringing about such an improvement in the situation as to make for the possibility of a viable marriage. The court may have to explore not only the capacity of the party to enter into the appropriate marital relationship but also the party’s capacity to sustain this relationship. Indeed, it may well be that a party who was incapable at the time of the marriage of forming a meaningful marital relationship, may, with medical help, stand a realistic prosect of being cured so that the capacity to form the required relationship may be restored or acquired. On the other hand, the affliction may have brought about such an irretrievable breakdown of the marriage that even if the party’s condition is ameliorated, nevertheless the marital relationship is irredeemably destroyed. With these types of issues in the background to the contentions in this application, there seems to be much to be said for the courts having the assistance of an independent psychiatric assessor. In view of the strong public interest which the State has in the preservation of existing marital unions, it may be that in an appropriate case, much consideration will have to be given to the prospect of curative treatment. There is also the peculiar anomaly that a party may be able to obtain a decree of nullity because of the existence of an incapacitating antecedent illness, but will be denied relief if the illness causing the inability came after marriage.

The respondent’s proposition that the order made was outside the Master’s jurisdiction
I quote the useful history of the office of Master of the High Court from Barron & Ford’s “Practice and Procedure in the Master’s Court”, p. 1:
“The office of the Master of the High Court was created by the Court Officers Act, 1926, s. 3. The powers, authorities, duties and functions of the Master were set out in section 5 of that Act.
Section 31 (3) of the Act of 1926 had the effect of vesting in the Master of the High Court any outstanding powers, authorities, duties and functions of statutory posts attached to the former Supreme Court of Judicature which were not otherwise allocated to holders of new posts. There is no equivalent to the Master in the Circuit or District Courts.
At the passing of the Act the Master controlled the Central Office and in addition to his general superintendence and control of the Central Office, he also exercised and had such duties and functions as were conferred on or assigned to him by statute or rule of law . . .
Until the Courts Officers Act, 1945, the Master was head of the High Court offices and superintended and controlled these. Following the Act of 1945, the Master’s function was limited to dealing with matters laid down by the Rules.
The Courts (Supplemental Provisions) Act, 1961, s. 14 (3) provides that Rules of Court may, in relation to proceedings and matters (not being criminal proceedings or matters relating to the liberty of the person) in the High Court and the Supreme Court, authorise the Master to exercise functions, powers and jurisdiction in uncontested cases and to take accounts, conduct inquiries and make orders of an interlocutory nature.
Paragraph 4 (2) of the 8th schedule of that Act sets out the powers and authorities and duties of the Master of the High Court as follows:
The Master of the High Court shall have and exercise such powers and authorities and perform such duties and functions as are from time to time conferred on or assigned to him by statute or rules of court and in particular (unless and until otherwise provided by statute or rules of court) shall have and perform all such other powers, authorities, duties and functions as are vested in him by virtue of sub-section (3) of section 31 of the Act of 1926.”

Statutory Instrument No. 15 of 1986 contains the Rules of the Superior Courts which were made in December, 1985, with the concurrence of the Minister for Justice on the 17th January, 1986.
The relevant rules for this appeal are as follows:
Order 36, r. 4:
“. . . the petitioner in matrimonial matters commenced by petition, shall apply, by motion on notice to the Master for directions, and the Master, or the Court, if the Master shall have placed the motion in the Court list, shall fix the time and mode of trial and make any ancillary order with respect of pleadings, particulars, discovery, interrogatories, inspection of documents, inspection of real or personal property, commissions, examination of witnesses, settlement of issues, or otherwise, which may be necessary or expedient.”
Order 70, r. 32:
“1. In proceedings for nullity on the ground of impotence or incapacity, the petitioner shall, after the filing of the last pleading or, if no appearance has been entered or answer filed, after the expiration of the time allowed for entering an appearance or filing an answer (as the case may be), apply to the Master to determine whether medical inspectors should be appointed to examine the parties.
2. Upon such application, the Master may appoint two medical inspectors to examine the parties and report to the Court the result of such examination.
3. At the hearing of any such proceedings the Court may appoint a medical inspector or two medical inspectors to examine any party who has not been examined or to examine further any party who has been examined, and to report to the Court the result of such examination.
4. In proceedings for nullity on the ground that the marriage has not been consummated owing to the wilful refusal of the respondent to do so, either party may, after the filing of the last pleading, apply to the Master for the appointment of medical inspectors to examine the parties and to report to the Court the result of such examination. Upon such application the Master shall appoint two medical inspectors and either of the parties shall be at liberty to submit himself for examination to one or both of the inspectors so appointed.”

The forms in appendix L, form no. 8, Certificate of Identification, clearly envisages a physical examination of the parts and organs of generation; likewise, form no. 9, the Oath of the medical inspectors, refers to an examination of the parts and organs of generation and to a report in writing as to whether the party is capable of performing the act of generation and whether such incapacity can be relieved or removed by art or skill and whether the party has or has not any impediment to prevent the consummation of marriage. These rules and forms are in the Rules of the Superior Courts, 1986. I understand that the practice has been for the registrar to amend the forms to take cognizance of the development of recent years in respect of the appointment of consultant psychiatrists as medical inspectors.
The respondent contends that the jurisdiction of the Master of the High Court is based on the Rules of the Superior Courts and on powers given by s. 3 of the Court Officers Act, 1926, with such further powers as were vested in the Master by virtue of the provisions of s. 31, sub-s. 3 of the Act of 1926, as amended by the Court Officers Act, 1945, and the Courts (Supplemental Provisions) Act, 1961. It was argued that the power of appointment of the medical inspector originally derived from the canon law courts through the matrimonial courts and vested in the civil courts. It was submitted that on the basis of the above provisions, the Rules of the Superior Courts cannot be expanded to encompass a psychiatric examination and report. It was argued that the Master only has jurisdiction to make procedural orders and cannot make orders which affect the rights of the parties. Roe v. McMullen [1928] I.R. 9 was cited as authority for the proposition that the Master’s jurisdiction is strictly limited to such powers as he is given by statute and the Rules of the Superior Courts. In that case, the plaintiff had issued a summary summons claiming a declaration that by virtue of an indenture of mortgage made between the defendant and the plaintiff, the plaintiff was entitled to a mortgage upon the defendant’s interest in certain premises with the usual relief in a mortgage suit. On the date fixed for the hearing before the Master of the High Court, the defendant obtained an adjournment, but at the adjourned hearing he did not appear. The Master made an order declaring the principal monies secured by the mortgage and the interest thereon, together with the costs awarded, well-charged on the defendant’s interest in the premises, setting forth the amount appearing to be due, ordering that the defendant be at liberty to dispute the amount within one month, and, in default of his so disputing the amount, and default of payment, ordering that the premises be sold, and that inquiries for incumbrances and their priorities be made.

The defendant appealed to the High Court. It was held by Meredith J. that the Master had no jurisdiction to make the order, as it was not “an order for final judgment” within the meaning of O. XIII, r. 2 and the words in O. XV, r. 4, “in all uncontested cases the Master may deal with the matter summarily”, did not confer jurisdiction, as they dealt with procedure merely. At p. 16, Meredith J. said:
“The office of the Master of the High Court was created by the Court Officers Act, 1926, and the powers, authorities, duties, and functions of the Master are defined in sect. 5 of that Act. The material words, so far as concerns the questions that arise in connection with the present Rules, are:
‘The Master of the High Court shall also have and exercise such powers and authorities and perform and fulfil such duties and functions as shall be from time to time conferred on or assigned to him by statute or rule of Court.’
It should be observed that this provision is entirely controlled by the words, ‘conferred on or assigned to him by statute or rule of Court’. If the powers and so forth are conferred by rule of Court, such rule will be made under a statute which defines the scope of the rule. This provision does not define what jurisdiction may or may not be conferred on the Master. That is the business of the particular statute in questionin this case, the Courts of Justice Act, 1924.”
At p. 18, he went on to say:
“As we shall see, the rules before us contain several interesting examples, that can be clearly shown to relate to procedure only, but which in a different context would be quite sufficient to confer an important jurisdiction. Applying the general rule to cases of this special type, we may say that where there is a group of rules which, as a whole, certainly deals with procedure, and where it is clear that, with the exception of a particular provision, the scope of which is doubtful, all these rules are confined to mere matters of procedure, then the particular provision, if it can be construed as confined to matters of procedure, ought not to be construed to extend a jurisdiction elsewhere given in express terms, simply because the wording of the provision if occurring in a differing context would be sufficient to do so.”
He concluded at p. 28 by saying:
“The order made by the Master in this case is not even ostensibly an order for final judgment. It consists of a declaratory judgment and
an interlocutory order. It is clear that no part of the orderor rather mortgagee decreewas within the jurisdiction of the Master.”
The petitioner’s response to the suggestion that the Master was acting outside his powers is that he was exercising a jurisdiction derived from the ecclesiastical courts and sanctioned by statutes and rules of court and, specifically, that the provisions of O. 70, r. 32 (2) provide that the Master may appoint two medical inspectors to examine the parties. The petitioners has no objection to the court appointing two medical inspectors provided that they are independent and report to the court. In this respect, my reading of the rules is that the purpose of appointing two medical inspectors was so that there would be a gynaecologist and an urologist or other appropriate doctor to conduct the respective examinations. I think that it is preferable that there should be one consultant psychiatrist so as to minimise the intrusion into the private lives of the parties and the stress of attending a psychiatric examination.
The law of nullity in Ireland has developed from the principles of the canon law. Since 1535, the ecclesiastical courts of the Church of Ireland continued broadly to apply the cannon law principles. A fundamental principle involved was, and continues to be, that inquiry as to the validity of a marriage was more inquisitorial and less adversarial in nature than the usual case. Before the 1st January, 1871, the civil courts in Ireland had no jurisdiction in matrimonial matters and suits for nullity of marriage had been dealt with solely by the ecclesiastical courts. With the disestablishment of the Church of Ireland and the coming into operation of the provisions of the Irish Church Act, 1869, with the passing of the Matrimonial Causes and Marriage Law (Ireland) Amendment Act, 1870, a court for matrimonial causes and matters was established and the former matrimonial jurisdiction of the ecclesiastical courts was transferred to this new court. Section 7 of the Act of 1870 provided that from the 1st January, 1871, all jurisdiction now vested in or exercisable by the ecclesiastical courts in respect of “. . . suits of nullity of marriage . . . shall belong to and be vested in Her Majesty and such jurisdiction shall be exercised in the name of Her Majesty in a court of record to be called the court for Matrimonial Causes and Matters”. Section 13 of the Matrimonial Causes and Marriage Law (Ireland) Amendment Act, 1870, provided that in all suits and proceedings in the court relating to matrimonial causes and matters, the court should “. . . proceed and act and give relief on principles and rules which, in the opinion of the said court, shall be as nearly as may be conformable to the principles and rules on which the ecclesiastical courts of Ireland have heretofore acted and given relief.” It seems to stem from this that the procedure of a more inquisitorial type in operation before 1870 continues to entitle the court to look for independent evidence of a probative nature to assist in the determination of key facts as to whether a marriage is valid and subsisting or null and void. Thus, the Master and the court have power, under the statutes above and the statutes authorising the making of the Rules of the Superior Courts and the provisions in O. 70, r. 32 to appoint a medical examiner, including a psychiatrist or a psychologist, when grounds of impotence or incapacity are raised, and both Master and court have such power whether or not the making of such order is opposed.
In my view, the Master had jurisdiction to make the order appointing the consultant psychiatrist as medical inspector for both parties. Incapacity can be construed as covering psychological as well as physical incapacity. The ground of incapacity formerly on occasion involved a finding that such a feeling of revulsion existed in the psyche quod hunc orquod hanc that a marriage was never consummated physically.
I am reinforced in this conclusion having read the file in C.D. v. E.D. (Unreported, High Court, Henchy J., 21st June, 1971) which was a case in which the marriage was declared null and void by reason of the petitioner’s impotency quod hanc. It is clear from Dr. F.’s report that the incapacity was of the mind and not of the body. Master O’Leary had refused to appoint a psychiatrist as an inspector but had appointed a gynaecologist and a surgeon. Henchy J., on appeal, varied the Master’s order by substituting a psychiatrist for the surgeon and ordering:
“The said P.F. to carry out a psychiatric rather than a physical examination of the petitioner and the respondent.”
I understand that the practice has been to adapt the forms in the rules to take account of a psychiatrist rather than a surgeon or urologist making the inspection. This is a sensible adaptation of the forms which are intended as guidelines.
As for the word “inspection”, while it may mean literally to look at, it seems to me that a gynaecological or urological examination would probably be tactile as well as visual and, accordingly, “inspection” has a wide connotation and includes interview, although not including any invasive test procedures or treatment.
Discretionary order
It was submitted on behalf of the respondent that even if the Master had such a jurisdiction, he should have exercised his discretion in favour. of the respondent by refusing to appoint a medical doctor to carry out a psychiatric examination of the respondent. The contention was made on the authority of Anderson v. Irwin [1966] N.I. 156, a case in the Northern Ireland Court of Appeal before Curren and McVeigh L.JJ., that the petitioner in this case had more than adequate means by which to conduct his case without the necessity of procuring an order to require the attendance of the respondent at a psychiatric examination. In Anderson’s the plaintiff declined to submit to examination by a surgeon acting on behalf of the defendant unless he received an undertaking that his hospital records and x-rays would not be made available to the surgeon. The surgeon refused to examine the plaintiff unless he was allowed to refer to the records and x-rays. In the High Court, Sheil J. refused an application to stay the proceedings until the plaintiff had submitted himself for examination and the hospital records and x-rays had been made available to the surgeon. The Court of Appeal held that while it was settled practice in such cases that a plaintiff must submit to a medical examination on behalf of the defendant, there was no such practice with regard to making available hospital records and x-rays, and that as the plaintiff’s refusal to make available the hospital records and x-rays did not render it either impossible or impracticable for the defendants to conduct their defence, the court’s discretion to stay the proceedings should not be exercised. In another Northern Ireland case, McDowell v. Strannix [1951] N.I. 57, Sheil J. was dealing with an action for damages for personal injuries in which the plaintiff refused to submit to examination by the defendant’s medical adviser except on the terms that the medical adviser’s evidence at the trial would be confined to the question of damages and that no evidence of any statement made by the plaintiff to him relating to the issue of liability would be given. The defendant had refused to agree to these terms and moved to stay the proceedings until the plaintiff submit to the medical examination without imposing any such terms. Sheil J. held that since the proper function of a medical witness is to give expert evidence as to damages and not to give evidence as to liability, the terms were reasonable and the motion must be refused. At p. 59, Sheil J. said:
“I do not accept the argument of Mr. Nicholson that the jurisdiction of this court to stay actions is confined within such narrow limits as he has suggested, but I can leave that point to be determined later if necessary and concern myself with the actual application made today. In my opinion it is wrong in principle that a doctor should be entitled whether by examination, cross-examination or otherwise to elicit information as to how an accident happened, that is, as to a matter of liability, from a man who has been sent to him for medical examination as to his injuries, that is, as to a matter of damages, and that the information so obtained should be used in evidence against that man through the mouth of the surgeon to the tribunal of trial. A plaintiff or it may now well be a defendantmight be an uneducated man unable to look after his own interests; he might be overawed or perhaps even confused by the surroundings of the surgery or even by the presence of the doctor himself.”
It was submitted on behalf of the respondent that what the petitioner was seeking here was analogous to the inquiry in respect of liability in the personal injury action in that the psychiatrist would have interviewed the respondent on her life history with regard in particular to establishing her capacity to enter into the marriage. It was submitted that the onus of proof lies on the petitioner and that by seeking such an order the petitioner was seeking to have a psychiatrist conduct an appraisal retrospectively of circumstances in and before the year 1978. The petitioner’s response to this is that in Anderson v. Irwin [1966] N.I. 156, the plaintiff did not refuse simpliciter to undergo a medical examination at the behest of the defendant, but rather was resisting the practice of making available hospital records and x-rays to the surgeon nominated by the defendant. The petitioner responded that, in view of the issues, the Master had exercised his discretion appropriately in appointing an independent consultant psychiatrist for the purpose of inspection and report to the court on the matters at issue in relation to the psyches of the parties at the time of the marriage. It was stressed that the peculiar expertise of a psychiatrist was the very skill which would enable an evaluation to be made, for the benefit of the court, of the state of the mind of each of the parties as of the date of the ceremony of the marriage. Anderson, being a personal injury claim in an adversarial action, differs from the present case in that the defendant’s surgeon could examine Anderson and report without having sight of the hospital records and of the x-rays. In view of the issues involving the psyche which have been fixed by the Master, it seems that it was a proper exercise of discretion on the part of the Master to appoint a consultant psychiatrist to carry out an independent examination of the parties so that the court may have the benefit of such a professional assessment before determining the issues. One advantage of having an independent psychiatrist’s report is that it may obviate the need for a treating doctor to have to produce a report or to give evidence. This may prevent erosion of the trusting relationship between a patient and his own treating psychiatrist.

The right to privacy and the right to bodily integrity
It was suggested on behalf of the respondent that the appointment of a psychiatric medical inspector infringed the respondent’s right to privacy, being a personal right of a citizen, and was also an infringement of her right to marital privacy. Counsel relied on Kennedy v. Ireland [1987] I.R. 587 and McGee v. Attorney General [1974] I.R. 284. It was further submitted that the Master’s order would affect the respondent’s right to bodily integrity being a personal right. Counsel submitted that the respondent was a woman with three children born of a marriage which at present enjoys the attributes of a constitutionally recognised family; a decree of nullity would affect how the respondent was regarded by the community and would affect her self-esteem and her self-confidence as a person who had operated as, and been recognised as, a wife and mother for a long number of years and had been so regarded by the community. It was submitted that such a decree would have dire and severe financial consequences for the respondent, and that to require the respondent, a woman already undergoing medical treatment, to attend a strange psychiatrist for assessment at the request of her husband and not at her own behest, was invasive of her right to marital privacy. By way of response, the petitioner submitted that the power to have a party to a nullity suit examined by a medical inspector for the purpose of the court is analogous to the power of the President of the High Court in wardship proceedings to have the respondent in a wardship suit medically examined. Such a medical inspection usually leads to an interview with a psychiatrist and a report being filed for the attention of the President of the High Court. It was submitted that there was no authority for the proposition that the right to privacy was absolute or that the State by its laws was not entitled to control personal conduct where the common good or the protection of public order or morality necessitated such control. In Kennedy v. Ireland [1987] I.R. 587, it was made clear that the right to privacy was not an unqualified right but rather was subject to the constitutional rights of others and to the requirements of public order and the common good. At p. 593, Hamilton P. said:
“The nature of the right to privacy must be such as to ensure the dignity and freedom of an individual in the type of society envisaged by the Constitution, namely, a sovereign, independent and democratic society. The dignity and freedom of an individual in a democratic society cannot be ensured if his communications of a private nature, be they written or telephonic, are deliberately, consciously and unjustifiably intruded upon and interfered with. I emphasise the words ‘deliberately, consciously and unjustifiably’ because an individual must accept the risk of accidental interference with his communications and the fact that in certain circumstances the exigencies of the common good may require and justify such intrusion and interference. No such circumstances exist in this case.”
It is inappropriate to compare the surreptitious and illegal interference with the telephone calls of Mr. Arnold and Ms. Kennedy with the appointment by the Master of the High Court in pursuance of his powers of an independent psychiatric inspector to examine both the petitioner and the respondent for the purpose of preparing a report on the issues fixed by the Master.
It is clear that the court will not lightly order an examination which is unpleasant, painful or potentially dangerous (see Aspinall v. Sterling Mansell Ltd. [1981] 3 All E.R. 866 and Prescott v. Bulldog Tools Ltd. [1981] 3 All E.R. 869). However, there is no evidence that the respondent would be put at risk by attending an interview. In any event, the petitioner’s submission is that the order sought is for the appointment of the psychiatric inspector and that there is no mandatory requirement on a party to attend. Obviously, adverse comment may be made if a party refuses to attend, but this may well be subject to a reasonable exaplanation, for example, the recommendation of a person’s treating psychiatrist in this respect. While I accept that a psychiatric examination may pry into a person’s inner mind, I do not think that this necessarily constitutes an interference with a right to bodily integrity. If the respondent gives evidence, then she could be subjected to vigorous cross-examination in respect of her past mental state. Such a course of questioning could hardly be objected to on the basis that it infringed a right to bodily integrity. The court has the right to hear relevant and admissible testimony from witnesses. In the light of the issues, the appointment of an independent medical inspector with psychiatric skills would appear to be reasonable.
As for the argument based on marital privacy, since the thrust of the petitioner’s application is that the parties were never validly married, it would seem that marital privacy should not prevail as a bar to an inquiry as to the validity of the marriage, although if there is an issue of voidability then probably approbation and ratification become relevant.
It may seem distasteful that a person who is suffering from a condition which requires psychiatric treatment be put in the position that she must accept or decline to give an interview with a consultant psychiatrist. I do not think that she is protected by the privilege against self-incrimination, which should be construed in a narrow sense, in that the privilege should only operate to permit a witness in legal proceedings to refuse to answer questions when the answers may tend to incriminate her by exposing her to subsequent criminal proceedings.
The United States Supreme Court in Estin v. Estin 334 U.S. 541 at p. 553, gave expression to the entitlement of a petitioner in nullity proceedings, where Jackson J. stated:
“If there is one thing that the people are entitled to expect from their law makers, it is rules of law that will enable individuals to tell whether they are married and, if so, to whom.”
The court has to investigate the status of this marriage and has the right to evaluate the testimony of relevant witnesses. The presentation of a psychiatrist’s report based on interviews with the parties may indeed preclude the need for a vigorous cross-examination of the respondent in this type of case. While I accept that it is open to the petitioner to call evidence of doctors, relatives and other persons with knowledge of the personalities of each party prior to the wedding, nevertheless, I do not think that this should preclude, in the circumstances of this case, the making of an order for the appointment of an independent consultant psychiatrist as a medical inspector. Accordingly, I am inclined to make an order confirming the order of the Master appointing the consultant psychiatrist as a medical inspector, but I will hear the parties with regard to the terms of the order, bearing in mind that it has been submitted on behalf of the petitioner that the respondent would not be compelled to attend such a psychiatric examination. Furthermore, counsel for the respondent previously indicated that submissions would be made, if necessary, in respect of the specific psychiatrist or psychiatrists to be appointed.
It is necessary that the situation be clarified in the light of this judgment, so as to avoid the situation where the registrar and psychiatrist or psychiatrists would be in attendance at a time and place if either or both of the parties do not intend to turn up for the appointment. Accordingly, I will hear submissions on the terms of the order to be made.

D.C. v. N.M. (falsely known as N.C.) (Nullity)

Geoghegan J

[1997] 2 IR 221

 

Geoghegan J.
26th June 1997

 

This is a petition for nullity in respect of an alleged marriage between the parties on the 28th February, 1978, in the Roman Catholic Church of St. Mary’s at Passage West, County Cork. The petition is opposed and the respondent has instituted separate proceedings for judicial separation with the usual consequential orders for the maintenance of herself and her children. The hearing of the judicial separation proceedings has been adjourned pending the determination of this nullity suit.
There are several different grounds on which the petitioner seeks nullity. These can be summarised as follows:
1. The petitioner’s consent to enter into a marriage was obtained by the undue influence and/or duress exerted upon him by the respondent by reason of her alleged pregnancy by him.
2. At the date of the alleged marriage, the respondent was under the age of 21 and the necessary consent under s. 19 of the Marriages (Ireland) Act, 1844, as inserted by s. 7 of the Marriages Act, 1972, had not been obtained.
3. The marriage had been solemnised on foot of her forged consent purporting to be the consent of the respondent’s father.
4. The forged consent vitiated the marriage in that the petitioner entered into the marriage in reliance on there having been a proper consent.
5. There was no valid consent to the marriage by either the petitioner or the respondent in that each married under the pressure of the pregnancy and surrounding circumstances and that such consent as there was, was not the product of a fully free exercise of the independent will of the parties thereto.
6. The respondent lacked the capacity to form or alternatively to maintain or sustain a lasting relationship with the petitioner by virtue of her inability to face reality as a consequence of a seriously immature personality.

 

7. The respondent had an apparent incapacity to control her compulsion to be sexually unfaithful to the petitioner due to a seriously immature personality.
I should state at the outset that in my opinion the last ground is quite unsustainable. There was one piece of evidence which might indicate unfaithfulness, if true, but since I regard it as irrelevant to the nullity proceedings and it might possibly be relevant to the judicial separation proceedings if nullity is refused, I do not intend to make any finding on it. It is sufficient to state that there was no evidence whatsoever that would justify an allegation that at the time of the marriage, the respondent suffered from some uncontrollable urge to be sexually unfaithful to her marriage partner.
I propose now to deal with the more general and usual grounds for nullity and to leave to later on in this judgment the grounds numbered 2, 3 and 4 above which all relate to the absence of consent by the respondent’s father and the forged consent.
I will start with the allegation of undue influence. I do not consider that there was any duress or undue influence on this case. For some years past it has been quite common for nullity to be granted in a case where a young girl became unexpectedly pregnant and there was parental or external pressure exerted on one or both of the parties to get married. If that pressure was excessive so as to prevent them forming an independent mature decision of their own, the courts have not considered the marriage to be a valid marriage and have had no hesitation in declaring nullity. That, however, is not the case here. There is no evidence of pressure by either set of parents or by any outside person on either the petitioner or the respondent to marry each other. I have no doubt that each wanted to get married and indicated that wish to the other. I am satisfied also that there had been at any rate a long term plan to get married, though no date had been fixed. At the time of the pregnancy this was a couple in a loving relationship. There is no question of the pregnancy having arisen from a single night’s passion. Having heard the petitioner and the respondent in the witness box, I am quite satisfied that the decision to get married at the actual time that they did was related to the pregnancy and that to a certain extent each felt a sense of duty to each other to get married and I think it is fair to say that the respondent did not want to be an unmarried mother. But I found nothing in the petitioner’s evidence to indicate to me that he was under any undue or excessive pressure from the respondent and he was certainly under no pressure at all from anyone else. He does appear to have been under pressure to some extent from his own conscience. I would further point out that this couple were not particularly young. He was 21 and she was 19. She was in a sense a mature 19 in that she had been leading an independent life for a considerable period. If there was to be nullity in a case such as this, it would effectively mean that no marriage arising out of an unwanted pregnancy could ever be upheld. None of the decisions of the Irish courts support that proposition, nor in my opinion would there be any justification for adopting that view. It is quite a different matter of course where there is parental or external pressure that a young immature person may be unable properly to withstand. It would also be different if there was any psychiatric illness in either party but again I am satisfied that that was not the case here. I am satisfied that the petitioner and the respondent were in a romantic relationship at the time of the pregnancy and that they had already made plans to marry. Effectively, all that happened was that the date of the marriage was brought forward, though of course I do accept that if there had been no pregnancy it is always possible that the marriage plans might have been cancelled.
It is clear also from the evidence that the petitioner never wanted his marriage to break up and that right up to recent proceedings in the District Court he was expressing hope that his marriage could be sustained. I do not think that it ever occurred to him that there was anything invalid about his marriage until the breakdown of his marriage led to his obtaining legal advice. Furthermore, I rather doubt that nullity proceedings would ever have been contemplated but for the circumstances surrounding the statutory requirement of consent of the parent to the respondent’s marriage and which effectively formed the second, third and fourth grounds of nullity as I have listed them.
I will now consider these grounds. The statutory provision which requires parental consent in the case of a person marrying under the age of 21 is s. 19 of the Marriages (Ireland) Act, 1844, in its new form, that is to say, as inserted by s. 7 of the Marriages Act, 1972. The new s. 19 replaces the old ss. 19 and 20. In the footnote to the old s. 20 contained in Faloon on “The Marriage Law of Ireland”, the following is stated:
“The section requiring consent to the marriage of a minor is directory only; and therefore a marriage solemnized by license, the man being a minor and having a father living, and who did not consent to the marriage, was held valid R. v. Birmingham (Inhabitants) 8 B. & C. 29.”
That case was decided on the equivalent English section but it is still cited into modern times as the authority for the proposition that the section is directory only. Mr. Shatter in his work on Family Law asserts the directory nature of the section also though he does not cite any authority. The new s. 19 does not contain any alteration on foot of which it could be argued that the prohibition was not directory only. I am absolutely satisfied that it is directory and that the mere absence of consent could not invalidate the marriage. Counsel for the petitioner, does not contest this too seriously but he argues that the position is different if the statutory provision is breached knowingly and that, even if he is wrong about that, the breach must lead at least to a voidable marriage if the consent was forged. I cannot accept either of these propositions per se.
In relation to the first, counsel relies on the case of I.E. v. W.E [1985] I.L.R.M. 691, a High Court decision of Murphy J. But that case was dealing with a quite different section in the Marriages (Ireland) Act, 1844. The relevant section was s. 49. That section is dealing with the places in which marriages can occur and it provides that if any person “knowingly and wilfully” marries in some other place, the marriage shall be null and void. Murphy J. pointed out that it was settled law that to invalidate a marriage for non-compliance with s. 49 it was necessary to establish not only that there should have been a conscious disregard of the provisions of the section but that both parties to the apparent marriage should have been aware of the defect. As the petitioner’s whole case here is partly based on an allegation that he was unaware of the absence of the consent, it is difficult to see how this decision could be relied on even if it was relevant. However, it is perfectly clear that s. 49 by its own terms is not a section which is merely directory. Its breach, if done knowingly, has the effect of invalidating the marriage. It is therefore totally different from s. 19 and that case, in my view, has no bearing on the issues in this case.
With regard to the second point, I cannot accept the view that merely because the consent was forged, the marriage was automatically invalid. First of all there is nothing at all in s. 19 of the Act of 1844, as inserted by s. 7 of the Act of 1972, which has that effect. If the section is to be interpreted as being directory only it cannot be read into it that it is not directory only in the case of a forged consent. For the petitioner to succeed on this ground therefore, he must satisfy the court that independently of the section, though of course having regard to it as part of the surrounding circumstances, the forged consent rendered the marriage voidable. I believe that it could not possibly have that effect if both parties were aware of the forgery and I find as a fact that they were. In this regard I accept the evidence of the respondent that a scheme was devised whereby the respondent’s brother would forge the father’s consent for the purpose of misleading the priest and that the petitioner was present when this plan was hatched. That really is the end of the matter but I would add that even if I was incorrect in that finding of fact, I would still be of the view that the forged consent would not have the effect of invalidating the marriage unless the petitioner was able to establish that to the knowledge of the respondent he relied on that consent in entering into the marriage and would not have entered into it had he known of the forgery. The petitioner in fact has not discharged that onus on the evidence which I have heard. Some reliance was placed on the Forgery Act, 1913 and the suggestion that the forgery was a criminal offence. As I read the Act of 1913, this was not a category of document the forgery of which was a criminal offence as such, but the uttering of the forged document was a criminal offence under that Act. Insofar therefore as anyone made use of the forged consent for the purpose of misleading the priest, an offence under the Act of 1913 was committed. But I do not think that that has any effect on the validity of the marriage.

 

D. C. (otherwise known as D. W.) v D. W.

1984 No. 24 M

High Court

21 February 1986

[1987] I.L.R.M. 58
(Blayney J)

The parties to this petition were married on 17 April 1976. They lived together for less than two weeks and the petitioner then went back to live with her parents. At the time of the marriage the petitioner was suffering from a psychotic illness which was later diagnosed as an early schizophrenia illness, and the respondent, in July 1983, obtained a decree of nullity from the Roman Catholic Ecclesiastical Courts.

The petitioner now seeks a decree of nullity from this Court on two separate grounds, set out as follows in the petition:

(1) Your petitioner did not fully and properly consent to the said marriage in that through her psychiatric illness namely, schizophrenia, she was incapable of understanding the nature, duties and responsibilities of marriage.

(2) Your petitioner through the said schizophrenic illness was incapable of entering into a permanent and meaningful relationship with the respondent.

For reasons which will appear later in this judgment, I propose to deal with the second ground only.

The legal principles on which this ground is based have been settled by a number of High Court decisions starting with R. S. J. v J. S. J. [1982] ILRM 263. In that case, one of the grounds on which a decree of nullity was claimed  was that the petitioner, at the date of the marriage, was suffering from such disease of the mind that he was unable to maintain and sustain a normal relationship with the respondent or any children there might be of the proposed marriage. Barrington J said in his judgment:

If therefore it could be shown that, at the date of the marriage, the petitioner, through illness, lacked the capacity to form a caring or considerate relationship with his wife I would be prepared to entertain this as a ground on which a decree of nullity might be granted (at p. 265).

On the facts it was held that such incapacity had not been established, and so the petition failed, but the principle enunciated by Barrington J was considered and applied by Costello J in D. v C. [1984] ILRM 173. Costello J said in his judgment:

… and so it seems to me (as it did to Barrington J in R. S. J. v J. S. J.) that if the law declares to be null a marriage on the grounds that one spouse is through physical disability incapable of the physical relationship required by marriage it should do likewise where one spouse is through a psychiatric disability unable to enter into and sustain the normal inter-personal relationship which marriage also requires (at p. 189).

Costello J went on to grant the petitioner a declaration that the marriage was null and void ‘because the respondent, at the time of the marriage, was suffering from a psychiatric illness and as a result was unable to enter into and sustain a normal marriage relationship with the petitioner’ (at p. 195).

In M. (otherwise O.) v O. High Court 1983 No. 9 M (Finlay P) 24 January 1984 the President of the High Court also considered that this was a ground on which a decree of nullity could be granted and in W. v P. High Court 1983, No. 8 M, 7 June 1984 Barrington J declared a marriage to be null and void ‘because the respondent, at the time of the marriage, was suffering from such a psychological or emotional disability or incapacity as made it impossible for him to enter into and sustain a normal marriage relationship with the petitioner’.

Finally, in R. v R. High Court 1983, No. 14 M, 21 December 1984 Costello J held that a petitioner was entitled to a declaration that a marriage was null and void as there had been ‘very persuasive evidence that this particular respondent was suffering from a psychiatric illness at the date of his marriage and as a result was unable to enter into and sustain a normal marriage relationship with this particular petitioner’.

These cases are clear authority that a decree of nullity may be granted where one of the parties, at the time of the marriage, was by reason of illness incapable of entering into and sustaining a normal marriage relationship with the other. The question to be considered is whether such was the position in the present case.

This depends mainly on the medical evidence given by Dr. Kenneth Sinanan, a consultant psychiatrist, but before referring to his evidence I will give a brief summary of the petitioner’s evidence, which was not disputed by the respondent. But while it was not disputed I am satisfied that there had been no connivance or collusion between the parties.

The petitioner was born on 3 June 1957 and until her marriage to the respondent lived with her parents in Glasthule, County Dublin. She and the respondent met and started going out together when the petitioner was only 14. The respondent was two years older. At first they went out with friends. Then they went out on their own. They used to go out every night and they began to have sexual intercourse every time they met. Initially this did not worry the petitioner but later it got in on her and she began to feel guilty about it. She had no one with whom she could discuss it.

One evening in July 1975 she broke down at home and her family doctor, Dr. Sheehan, referred her to Dr. Sinanan. The petitioner felt at this time that people were talking about her and looking at her strangely. She was apt to break down and cry for no reason at all.

Dr. Sinanan examined her at the Cluain Mhuire Family Centre on 22 July 1975 and advised treatment in the day hospital. The petitioner attended daily at the hospital for three to four weeks and after that attended at intervals which varied between two weeks and a month depending on her progress between visits. After an initial improvement the petitioner had a relapse in the middle of February 1976. And at about the same time she made a rather disturbing discovery. She found that she was pregnant. This was confirmed by Dr. Sinanan as a result of a test carried out at the beginning of March.

The parties had become engaged in the summer of 1975. When the petitioner found that she was pregnant she wanted to get married, but the respondent did not. The petitioner wanted a home and a family, and thought everything would work out. She thought the respondent would change and everything would be all right.

All the advice the petitioner received at the time was against getting married until her baby was born. Her mother did not want her to get married, and both Dr. Sinanan and the social worker advised her to wait.

The respondent received similar advice from Dr. Sheehan and from a Fr. Lyons, one of the curates in his parish, but he went ahead as he thought it was the right thing to do.

After their marriage on 17 April 1976 the parties went to live in a room in a house in Ballybrack owned by a cousin of the petitioner. Their stay there was very brief. During the second week they had a row one evening and the respondent struck the petitioner on the back of the hand and on the face. She immediately returned to her parents and the parties never lived together subsequently.

The petitioner was delivered of a baby girl on 31 August 1976. The respondent took no interest in her. The petitioner then realised she ought to have listened to the advice she had been given, but she had thought that the baby would bind them together.

The petitioner could not go out for a month after her baby was born. After that the respondent called and asked her to go out for a walk. The petitioner said she knew what this meant and she refused. The respondent hit her. That was the end of their relationship.

For some time the petitioner had no interest in anyone. Then she got to know a man called M. H. Her evidence was that he was completely different from the respondent. He was warm and loving and great with children. The petitioner went to live with him in 1978 and she now has two children by him. She also went through a form of church marriage with M. H. on 15 December 1984.

The petitioner first consulted her solicitor in October 1984 and she was then advised for the first time that there were possible grounds for having her marriage annulled.

I now come to the evidence of Dr. Sinanan which was partly oral and partly contained in a written report setting out his findings on his examination of the petitioner in compliance with the order of the Master of the High Court made on 12 June 1985. Dr. Sinanan first examined the petitioner at Cluain Mhuire Family Centre on 22 July 1975 about one year before her marriage. He diagnosed an early schizophrenic illness which he described as an acute psychotic illness. The petitioner felt that people were talking about her and could read her thoughts. She was sad, tearful and withdrawn. After treatment in the day hospital she made a good recovery, and for the next five months she was mixing with people, was in good humour, and was carrying on with her job.

In February 1976 her symptoms returned. She felt there was someone in the room following her around; she had become forgetful, and she was tearful and suicidal. She had inability to sleep, difficulty in getting up in the morning and difficulty in concentrating. Soon after this she discovered she was pregnant. Dr. Sinanan advised her strongly against marrying until the baby was born and until she was medically in better condition. But she saw marriage as the only way of surviving. She was unable to think it through. She was responding to a basic drive to marry the man who had made her pregnant.

Dr. Sinanan summarised his conclusions in his report as follows:

In summary therefore, this patient contracted a psychotic illness in 1975. This illness was diagnosed as schizophrenia-paranoid sub-type. During the illness the patient entered into marriage, even though at that time she was advised by her medical advisers and well-meaning people connected with her not to get married while she was ill and while she was pregnant. The illness remained active for approximately five years and since then she has remained in remission. It is my opinion that while she was going through her psychiatric illness, namely schizophrenia, that she was incapable of understanding the nature, duties and responsibilities of marriage and at that time was incapable of entering into a permanent and a meaningful relationship with the person she chose as a partner. She has shown good recovery and with a suitable, non-stressful environment may remain well. However, it is likely that this patient will have further episodes of schizophrenia during her life.

As appears from his evidence, Dr. Sinanan had been attending the petitioner for approximately nine months before her marriage. He was accordingly in a position to say from personal observation of the petitioner at the time what her condition then was. Because of this his evidence carries great weight and I am satisfied that the effect of it is that the petitioner, at the time of her marriage, was incapable, because of schizophrenia, of entering into and forming a normal marriage relationship with the respondent. The petitioner has, accordingly, shown a prima facie case entitling her to a decree of nullity.

But the ground on which the petitioner relies does not make the marriagevoid. Its effect is to make it voidable only. This was decided by Costello J in D. v C. where he held that ‘the illness alleged and established in this case is one which renders the marriage voidable and not void (see p. 190 of his judgment). The petitioner could not accordingly rely on this ground as avoiding the marriage unless she could establish that the respondent had previously repudiated the marriage. As was pointed out by Barrington J in R. S. J. v J. S. J. this is by analogy with the case of impotence. An impotent spouse can rely upon his own impotence to avoid the marriage only if the other party has previously repudiated the marriage, and by analogy the position is the same where the marriage is voidable by reason of the illness of one of the parties at the time of the marriage. But in the present case this requirement of repudiation by the respondent does not create any obstacle for the petitioner as by seeking and obtaining a decree of nullity from the ecclesiastical courts the respondent has clearly repudiated the marriage and thereby avoided it.

There is one final matter to which I should refer as at one stage it caused me some concern. The petitioner appears to have had a stable relationship with M. H. since 1978 and she has had two children by him. Does this in any way throw doubt on Dr. Sinanan’s evidence that the petitioner was through illness incapable of forming a permanent and meaningful relationship with the respondent? At first sight it seemed to me that it might, but on further reflection I do not think that it does. The issue in this case is whether the petitioner, at the date of her marriage to the respondent, was incapable, as a result of her psychotic illness, of forming a normal marriage relationship with the respondent. What her capacity was at any other time of forming such a relationship with any other person is not relevant to this issue. The court is concerned solely with the effect of the petitioner’s illness at the date of her marriage to the respondent. It is not concerned with the state of her mental health at any other time or her capacity at any other time to form a normal marriage relationship with any other person. Accordingly whether or not she has succeeded in forming such a relationship with M. H. is not in my opinion relevant and does not in any way take away from the weight of Dr. Sinanan’s evidence as to the effect of her illness at the date of her marriage to the respondent.

I am satisfied therefore that the petitioner has established the second ground set out in her petition and in the circumstances it is not necessary for me to consider the issues raised by the first ground.

There will be a decree that the petitioner’s marriage with the respondent is and was null and void on the ground that the petitioner was at the date of her marriage suffering from a psychotic illness and as a result was unable to enter into and sustain a normal marriage relationship with the respondent.

P.W. v A.O.C

P.W. v A.O.C. (otherwise W.) [1992] ILRM 536 Blayney J
The petitioner, P.W., seeks a declaration of nullity in respect of his marriage to the * respondent which took place on 28 June 1956. The principal ground on which the petition is based is that the petitioner’s consent to the marriage was not the result of a fully free exercise of his independent will but was given under duress exercised by the respondent. This is denied by the respondent. The evidence of the parties as to the crucial events leading up to the marriage was conflicting in a number of respects. It will be necessary to examine it in detail in order to come to a conclusion on the main issues of fact but before doing so I propose to set out the broad outline of the case which is not in dispute.

Both parties are from a farming background. The petitioner is from the County of L. and the respondent from the County of K. On leaving school the petitioner qualified as a … manufacturer and set up a small factory in P. The respondent went to Trinity College and took an honours degree in Irish and English, graduating in 1955 at the age of 26. On graduation she obtained a teaching post in England.

The parties met at a dance in L. on St Stephen’s night in 1955 when the respondent was home for Christmas. The petitioner was then 25. Prior to meeting the respondent, the petitioner had been engaged twice. The first engagement had lasted 1½ years, and the second less than a year. On each occasion it was the petitioner’s fiancee who had broken off the engagement.

The parties corresponded after the respondent’s return to England. When the respondent came home for Easter, they met again and went out together a number of times. Shortly before Easter the petitioner had closed down his business and sold off the plant.

Between Easter and Whit the parties again corresponded and when the respondent came home for Whit they became engaged. On the day the respondent went back to England, they went to L. together and bought the engagement ring. They agreed, each for different reasons, that they would not get married for about two years.

When the respondent returned to England she got a letter from her father pleading with her not to marry the petitioner. On receipt of that letter, she wrote to the petitioner. There is a total conflict as to what she said in that letter. I shall deal later with whose version I accept; all that is necessary to indicate at the moment is that it is common case that the next day the petitioner sent the respondent a telegram saying that they would get married on 28 June.

The wedding took place at M.H. Roman Catholic Parish Church, London on 28 June 1956. It was a small wedding. There were seven people at the wedding breakfast afterwards. The respondent’s parents did not attend. A short honeymoon of four days was spent in a hotel in Bournemouth. The petitioner then went back to Ireland and the respondent followed him a short time later. To the end of August they lived in a flat in the petitioner’s factory. During the month of August the respondent told the petitioner she was pregnant. Between August  and Christmas the parties lived with the petitioner’s parents. During this time the petitioner was converting his factory into a dwelling-house which was to be the family home, and this was ready after Christmas.

In January 1957 the petitioner got a job in Cork as a salesman and he and the respondent went to live there in a flat. Their first son P. was born in Cork on 26 May 1957.

The parties had two other children, D., born on the 21 March 1961 and C., born on 21 May 1966. They continued to live together until July 1966 when the respondent left taking the three children with her. They had moved to Dublin in 1958 and bought a house in M. called S.L. which they converted into flats. Between 1957 and 1961 the petitioner took an arts degree in Trinity, graduating in June 1961. He then obtained a job as a sales supervisor with Messrs. B.-G. Between 1959 and 1963 the respondent worked as a teacher in the H. School, M.

Each of the parties gave a very different version of their life together. As this is relevant only to the extent that it assists me in assessing the reliability of the parties’ evidence on the central issue of duress at the date of the wedding, I do not intend to set it out in full. From an early stage the parties did not get on. The petitioner claimed that the respondent was domineering, irrational and moody. The respondent claimed that the petitioner had an explosive temper and was violent both to herself and to their eldest son. A friend who stayed with them in 1961 said there was a lot of tension in the house.

After the respondent left in July 1966, she issued proceedings against the petitioner for maintenance and maintenance has been paid by the petitioner at varying rates since 1967 and is still being paid by him.

In 1979 the petitioner obtained a decree of nullity from the Roman Catholic Church and on 3 April 1981 he went through a ceremony of marriage with E.W. with whom he has lived ever since. He was indicted for bigamy subsequently but was acquitted, the judge directing the jury to bring in a verdict of not guilty. The present proceedings were issued on 23 October 1989.

I now set out the conflicting evidence of the parties as to what happened between the time they met and the date of their wedding.

When they met for the first time at Christmas, the petitioner said that he thought the respondent was sad, worried and in bad form. He said she told him that her family were treating her badly and in particular that her brother, with whom she was living in London, was treating her sadistically. The respondent said that none of this was true.

The respondent said that the petitioner proposed to her at Easter. She said that on the way back from a dance on Easter Sunday night, the petitioner pulled in and asked her to marry him. She said she replied that she would think about it. The petitioner said none of this ever happened.

There was agreement as to the fact that they became engaged but  disagreement as to how it came about. According to the respondent, the petitioner suggested that they should become engaged. The petitioner, on the other hand, told Dr. J.B., a psychiatrist who gave evidence on his behalf, that the respondent suggested it. The petitioner also implied that the engagement had come about as a result of matchmaking when he had too much to drink. But he said he was agreeable to get engaged provided they waited two years; he would not have agreed otherwise as he had no income at the time. The respondent accepted that they agreed to wait for two years before getting married, but she said it was she who suggested this and not the petitioner. She said her reason was that she wanted to get some return on the investment her family had made in her education. But whichever of them suggested it, there is no doubt that, when they became engaged, the intention of both parties was that they would wait two years before getting married.

Then comes the most critical conflict in their evidence. The petitioner said that shortly after the respondent returned to England he received a 20 page letter from her. In it she said that her family objected strongly to her getting married; they were threatening her, and unless he agreed to marry her straight away, she would put her head in a gas oven. The petitioner said he was totally shocked by this. He did not want to get married immediately, but he did not want to be the cause of her death, so he sent her a telegram agreeing to get married. According to the respondent the text of this telegram was: ‘Alternatives not acceptable — flying over. Arrange with your priest. Marriage 28 June’. The petitioner said that in her next letter the respondent asked him to destroy the letter containing the threat of suicide.

The respondent’s evidence was that there was no question that she could have written such terrible rubbish. To quote her own words, she said: ‘What was the need of a woman of her qualifications to threaten a gas oven?’. She said that what she had said in her letter was that she would be home in the summer and they would have a rethink; that there was no better response to her parents’ reaction. She said that the petitioner, in the letter that he wrote immediately after sending the telegram, had said that he had walked the floor all night and had come to the conclusion that he could not go wrong marrying a girl like her.

There was a further dispute as to who made the arrangements for the wedding in England. Each said that the other made them. The petitioner said the respondent told him to go to see his priest and that she made all the other arrangements. When asked in cross examination about the marriage licence, the respondent said that the petitioner went to the registry office and attended to getting it; he was over in plenty of time before the wedding — six or seven days — to satisfy the requirements. But she said also that she thought that she dropped into the registry office to establish that she was living and teaching in England. The petitioner said he was only in England for about two or three days before the wedding. He said that the respondent told him that he would have to give  false information about how long he was in England. He objected to this and suggested that they should wait the appropriate number of days. Her response to this was that he should not let her down as otherwise she would throw herself under a train. The respondent denied that she had ever made any such threat.

The existence of so much conflicting evidence throws a doubt on the reliability of both parties unless I was satisfied that the evidence of one was always to be preferred, which is not the case. It seems to me that neither party is wholly reliable. I do not think that the petitioner was wholly frank in regard to how he became engaged, and I am satisfied from other evidence that he was not being truthful when he denied that he was ever violent. As for the respondent, I consider that she was more concerned with protecting her image than with seeking to tell the truth. I would agree with her brother’s description of her as being in love with herself.

Since I cannot rely on either of the parties as being truthful, I have to have regard to which of their versions of the critical issue is the more likely to be correct. It comes down to this — did the respondent write to the petitioner threatening to commit suicide if he did not marry her immediately, or did she simply suggest that because of her parents’ opposition they should have a rethink about their engagement when she came back in the summer? The conclusion I have come to is that the petitioner’s evidence on this is to be accepted rather than the respondent’s. Two reasons in particular lead me to this conclusion: firstly, since the petitioner wanted a delay of two years before they got married, he would have seen nothing inconsistent or unusual in the suggestion of having a rethink about their engagement during the summer, and so there would have been no reason for him to react by insisting on an immediate wedding; he had not wanted this when they became engaged and why should he have changed his mind because of the opposition of the respondent’s parents? Secondly, the respondent’s evidence of what the petitioner said in his letter in reply to hers suggests that she had been putting pressure on him to alter their plans and to get married straight away rather than she had simply proposed a rethink in the summer. If that was all she had said, why would it have given the petitioner cause ‘to walk the floor all night’ and what would have been the relevance of his coming to the conclusion ‘that he could not go wrong by marrying a girl like her’. Such a reaction would have been perfectly normal, however, if the petitioner was being pressurised into marrying straight away instead of waiting for two years.

Apart from this, the respondent was clearly the more dominant personality of the two so it was more likely that the initiative of insisting on an early wedding should have come from her.

In the light of this finding of fact, the question to be considered is whether the respondent’s threat to commit suicide constituted duress and had the consequence that the petitioner’s consent to the marriage was not a real consent.

The law in regard to what constitutes duress sufficient to ground a petition of nullity has been considered in three recent cases, starting with the decision of O’Hanlon J in M.K. (M. McC.) v F. McC. [1982] ILRM 277. The petitioner in that case was a young woman who married the respondent in 1972, she then being 19 and he 20. The parties had been forced to marry by their respective parents because, following one act of intercourse between them, the petitioner had become pregnant. O’Hanlon J’s conclusion on the facts was that (at p. 279):

An unwilling bride and a resentful husband were dragged to the altar and went through a ceremony of marriage which neither of them wanted, and without any genuine feeling of attraction or affection which might have led on to a happy union in the course of time.

Having reviewed the decisions on duress in England and in this country and noted that a more rigid view prevailed in England as to what constituted duress, O’Hanlon J concluded as follows (pp. 282-3):

My conclusion is that in the present case I should take the broader view of the concept of duress and that there is justification for declaring the marriage null and void. I am satisfied that the will, not merely of one partner but of both husband and wife, was overborne by the compulsion of their respective parents and that they were driven unwillingly into a union which neither of them desired, or gave real consent to, in the true sense of the word, and which was doomed to failure from the outset….

In both cases I believe the will was overborne by compulsion by persons to whom they had always been subject in the parent and child relationship and that the duress exercised was of a character that they were constitutionally unable to withstand.

On these grounds O’Hanlon J granted a decree of nullity.

This decision was approved by the Supreme Court in N. (otherwise K.) v K. [1986] ILRM 75. The facts were somewhat similar. The parties married when the petitioner was 19 and the respondent 20. The petitioner had become pregnant and her father’s attitude was that the only choices open to her were to marry the respondent or have an abortion, an alternative she would not consider. In the High Court, Carroll J took the view that the case was distinguishable on its facts from M.K. (M. McC.) v F. McC. and that the circumstances were not such as to amount to duress in law, but she expressed the hope that the case would be appealed as there was no decision of the Supreme Court on duress as a ground for nullity.

The case was duly appealed and the law was stated as follows by Finlay CJ at p. 82 in a judgment with which Griffin and Hederman JJ concurred:

The entry into of a valid marriage is not only the making of a contract but is  also in law the acquisition of a status. The status thus acquired and the related concept of a family receives special protection from the provisions of the Constitution. Furthermore, the provision of the Constitution prohibiting the enactment of legislation permitting the dissolution of a valid marriage makes the contract of marriage absolutely irrevocable.

Consent to the taking of such a step must, therefore, if the marriage is to be valid, be a fully free exercise of the independent will of the parties. Whilst a court faced with a challenge to the validity of a marriage, based on an absence of real consent, should conduct its inquiry in accordance with defined legal concepts such as duress or, what has been described by O’Hanlon J, as ‘the related topic of undue influence’ (at p. 281), these concepts and the legal definition of them must remain subservient to the ultimate objective of ascertaining, in accordance with the onus of proof, whether the consent of the petitioning party was real or apparent.

Applying these principles to the facts, the Chief Justice held that the petitioner’s consent to the marriage was apparent rather than real, and that she was entitled to a decree of nullity.

Finally, in D.B. (otherwise O’R.) v O’R. [1991] ILRM 160 the Supreme Court had to consider the following facts. The petitioner was only 16 when she married in August 1966 and the respondent was ten years older. She had lived in an orphanage until she was 13. She then lived with her parents for two years. She first met the respondent when she was 15 and in June 1966 they had intercourse and she became pregnant. Her parents then returned her to the orphanage and the nun in charge made arrangements for the wedding. The Judgment of the Court was delivered by Hederman J (Finlay CJ and O’Flaherty J concurring). He said in the course of his judgment at p. 172:

The question for this Court is a single one: on the facts as proved in evidence and accepted by the learned trial judge, did the petitioner establish that she was not in a position, prior to the marriage, freely to exercise her independent will to enter into the covenant of marriage?

The court was satisfied that the petitioner had established this and on this ground the appeal was allowed and a decree of nullity granted.

In my opinion it is clear from these cases that the test in determining whether a decree of nullity should be granted on the ground of duress is whether the effect of the duress was such that the consent of the petitioner to the marriage was an apparent consent only, that is to say, that it was not a fully free exercise of an independent will. The nature of the duress seems no longer to be an essential element. It is not necessary, as it was held in England in Szechter v Szechter [1970] 3 All ER 905, 915 that it should be provedthat the will of one of the parties [thereto] had been overborne by genuine and reasonably held fear caused by threat of immediate danger, for which the party himself is not responsible, to life limb or liberty, so that the constraint destroys the reality of consent to ordinary wedlock.

The duress can consist of moral pressure from the parents of the petitioner which the latter is unable to withstand, as with the case in N. (otherwise K.) v K. Furthermore, a party who is unable to establish duress may still succeed if he or she can establish that at the time of the marriage he/she was incapable of giving a real consent to the marriage. Such was the position in D.B. (otherwise O’R.) v O’R. where on the appeal to the Supreme Court the petitioner abandoned the grounds of duress and undue influence, but argued successfully that she had not been capable of giving a real consent to the marriage.

In the present case I am satisfied that the pressure exerted on the petitioner by the respondent’s threat to commit suicide if he did not marry her immediately continued to operate on the petitioner’s mind right up to the time of the marriage and prevented his consent from being a fully free exercise of an independent will. I consider that the petitioner would not have agreed to marry the respondent so soon after their engagement were it not for the respondent’s threat. And I accept the petitioner’s evidence that the respondent made a second threat to commit suicide by throwing herself under a train if the petitioner did not make an inaccurate declaration as to the length of his residence in England so as to get the marriage licence. This was part of the continuous pressure which the respondent was exerting and which in my opinion the petitioner could not resist. I accept Dr B’s. evidence that the petitioner is a compliant co-operative person. The respondent also described him as being before the marriage a charming, passive and considerate person. He was clearly dominated by the respondent who was used to having her own way. It was probably not even necessary for the respondent to have made the extreme threats that she did — she could almost certainly have prevailed upon the petitioner to marry her immediately without them — but I am satisfied that she did use them and their effect was to deprive the petitioner’s consent of the necessary element of freedom required of a consent to a marriage.

On behalf of the respondent it was submitted that the petitioner’s petition should be dismissed because of the delay in bringing it, particularly having regard to the fact that he had been in receipt of legal advice in respect of his marriage since about 1964. The petitioner’s answer was that he had told his legal advisers the full facts about his marriage but that he had not been advised until 1987 that he had grounds for having his marriage annulled. I accept that explanation. If the petitioner had been advised earlier that he could bring a petition I have no doubt that he would have done so as a decree of nullity would have relieved him of having to pay maintenance to the respondent which he has  been doing since 1966. While his legal advisers ought to have advised him sooner as to the possibility of seeking an annulment, it is possible that they did not advert to it, and the petitioner cannot be blamed for their failure in this regard.

In addition to seeking a decree of nullity on the ground of duress, the petitioner sought it also on the ground that the respondent was incapable of entering into and maintaining a normal marriage relationship. As I am satisfied that the petitioner is entitled to a decree on the first ground it is not necessary for me to come to any conclusion on the second and I do not express any opinion on it.

For the reasons given earlier, I decree that the marriage of the petitioner with the respondent is null and void.

I. E. v W. E.

1983 No. 31 CA

High Court (Circuit Appeal)

1 June 1984

[1985] I.L.R.M. 691

There is no dispute as to the amount of the maintenance as fixed by the learned Circuit Court Judge by those orders. The only issue which the appeal raises is whether the parties were ever validly married to each other. This issue involves important questions of law and, as presented, unusual and somewhat mysterious questions of fact. In the circumstances it was particularly unfortunate that the husband was not legally represented.

It is common case that the husband and the applicant, I.E. (to whom I shall refer as ‘the wife’) went through a form of marriage at ( name and address of church deleted ) on 18 March 1963. Again, both parties fully and freely accepted that they believed the marriage to have been a valid and legally binding commitment. Whilst the parties did have an intimate relationship prior to the ceremony in the Lutheran Church aforesaid, each of them regarded that ceremony as the basis of their matrimonial and domestic relationship which continued for some 20 years thereafter and resulted in the birth of one child — also W. — who is now 19 years of age.

It is the husband’s contention that the ceremony in 1963 did not constitute a valid marriage. He puts his case this way. The record of his marriage in the Lutheran Church in Dublin shows that there was produced to the pastor officiating at the ceremony (Pastor M.) a certificate from the appropriate authorities in East Berlin that the husband and the wife had entered into a civil marriage at a particular place (Prenzlauer Berg) in East Berlin on 21 July 1962. The husband emphatically denies that he went through a form of marriage in East Berlin at any time and in particular he denies that he was in East Berlin in the month of July 1962. On behalf of the wife it is pointed out that there is a heavy burden imposed upon the husband in seeking to dispute the validity of the marriage at this stage (a proposition which I would readily accept) and it is argued — rather than sworn — that is is probable that some form of civil ceremony was in fact entered into by the parties in East Berlin. On behalf of the wife it was contended that the pastor who performed the ceremony in the Lutheran Church (though not available to give evidence) was a disciplined and conscientious man who would not have recorded inspecting a certificate of the civil marriage unless the same had been produced to him and inspected by him. Again, the wife herself, whilst not in a position to recall or give evidence of any civil ceremony to which she was a party, believed that she and the husband had called upon a number of officials in East Berlin and that it is probable that some of these visits related to or included the performance of the civil ceremony. Again, it was argued that the parties might well have considered it prudent to go through some form of marriage ceremony in East Berlin as a means of overcoming what were then very serious problems with regard to international travel.

The background to the question of fact is colourful and romantic. The husband is now 43 years of age. Although he was a native of and resident in West Berlin it was in East Berlin that he studied music between 1955 and 1960. About 1958 he met the wife (than I. L.) who resided in East Berlin and was then about 15 years of age. They developed a deep affection for each other. In 1960 the husband returned to West Berlin but frequently — indeed daily — visited the wife. At that time the notorious Berlin Wall had not been erected.

In 1961 the husband came to Ireland to take up a position here. On 27 July 1962 he obtained in Dublin foreign currency and petrol coupons. On 31 July 1962 he passed through Dover on his way to Germany. As I understand it he did cross from West Berlin to East Berlin on one or more occasion in August of that year but then obtained a transit visa to visit the Leipzig Trade Fair on 8 and 9 September 1962. When he visited East Berlin on that occasion he drove back with the wife hidden in the boot of his car. By that time the Berlin Wall had been constructed. The security was intense. In the circumstances the action of the parties was both courageous and romantic. Apparently, the story was widely reported in the international press. After this dramatic escape the parties remained for some weeks in West Berlin. The parties then came to Ireland sometime in October 1962. These facts were sworn to by the husband and not seriously disputed by the wife. Furthermore, they are corroborated in virtually every detail by the entries on the husband’s passport which was put in evidence. These facts place the husband in Berlin in August and September 1962. That fact is established with virtual certainty. However, the same evidence places the husband — with almost equal certainty — in Dublin in July 1962 so that it would have been impossible for him to have gone through a ceremony of marriage in East Berlin on the 21st day of that month. Indeed, it may be added that research has failed to turn up any record from the East German authorities of such a civil marriage having taken place. However, that fact has to be understood in the context that apparently a number of records of that nature were destroyed or mislaid.

I do not know and I cannot even speculate as to what record was shown to the clergyman who officiated at the ceremony in March 1963. I do not know how or by whom he was misled but it does seem to me that however weighty the onus of proof lying on the husband to prove that no civil ceremony took place he has managed to discharge that onus.

However, the next problem — and indeed the one which concerns me more — is the question of law. What is the effect or indeed the relevance of the fact that the parties had not been married in a civil ceremony prior to the religious ceremony which took place in March 1963? Obviously it was in this area that the husband was particularly hampered by his ignorance of the law. Indeed, it is a topic with which even the most experienced lawyers have considerable difficulties.

As I understand it the husband contended that the performance of a religious ceremony or marriage between parties who had not previously been married in a registry office constituted (prior to 1968) a criminal offence. In support of that contention the husband produced a typed document which was described as ‘extract from the Evangelisches Soziallexikon 7th Edition by Kreuz Verlag Stuttgart 1980’. Whilst I had some difficulty in understanding whether this publication emanated from the Lutheran Church or the civil authorities in Germany the one thing that is clear is that the document and the ordinance to which it refers forms no part of Irish civil law. That being so I found difficulty in following the relevance which should or might be attached to the absence of the civil ceremony.

Counsel on behalf of the wife who, as I say, contested the facts with regard to the civil ceremony on behalf of their client, interpreted the husband’s argument as being based in effect on s. 49 of the Act for Marriages (Ireland) 1844 (7 & 8 Vict., c. 81) which provides as follows:

… except in the case of marriages by Roman Catholic priests which may now be lawfully celebrated, if any persons shall knowingly and wilfully intermarry, after the said thirty-first day of March, in any place other than the church or chapel or certified presbyterian meeting house in which banns of matrimony between the parties shall have been duly and lawfully published, or specified in the licence, where the marriage is by licence, or the church, chapel, registered building or office, specified in the notice and registrar’s certificate or licence as aforesaid, or without due notice to the registrar, or without certificate of notice duly issued, or without licence from the registrar, in case such notice or licence is necessary under this Act, or in the absence of a registrar where the presence of a registrar is necessary under this Act, or if any persons shall knowingly or wilfully after the said thirty-first day of March intermarry in any certified presbyterian meeting house without publication of banns, or any licence, the marriage of all such persons, except in any case herein-before excepted, shall be null and void.

It is indeed common case that in relation to the ceremony which took place on 18 March 1963 no banns were published and no licence or statutory certificate was issued. Indeed it appeared from the evidence of Pastor P. that untilsometime shortly after March 1963 the Lutheran Church at Adelaide Road was not registered under s. 12 of the law relating to marriages in Ireland, Marriage Law (of Ireland) Amendment Act 1863 (26 & 27 Vict., c 27.

It seems to me settled law that to invalidate a marriage for non-compliance with any of the provisions contained in s. 49 aforesaid (or more particularly the English equivalent of the same legislation) it is necessary to establish not only that there should have been a conscious disregard of the provisions of the section but that both parties to the apparent marriage should have been aware of the defect. In Templeton v Tyree (1872) LR 2 P&D 420 the man had procured publication of the banns of marriage without any reference to the intended wife. In relation to that defect the judge ordinary summarised the law in the following terms (at p. 422):

All of the courts, however, both common law and ecclesiastical, held that it is absolutely necessary to prove that both parties are cognizant at the time of the undue publication in order to bring the case within the statute and to fulfil the exigency of the words ‘shall knowingly and wilfully intermarry without due publication of banns’.

Again in the next succeeding case in the same report — Greaves v Greaves (1872) LR 2 P&D 423 it was established that the man was aware that no licence had been issued prior to the marriage ceremony but the woman was not. In those circumstances the court pronounced for the validity of the marriage.

In the present case both parties treated the ceremony which took place on 18 March 1963 as a valid ceremony of marriage, and as I have said, it formed the basis of their matrimonial relationship which endured unquestioned for nearly twenty years thereafter. In fact Mrs E. did give some indication in the course of her evidence that her husband had hinted in recent years that there was some defect in their matrimonial status but if there was any substance in that evidence it is clear first that the applicant herself was not cognisant of any defect and, secondly, that insofar as the defect was or may have been believed to relate to the civil ceremony of marriage alleged to have taken place in East Berlin this has not been shown to have any bearing on the validity of the Irish marriage.

In the result, therefore, the court is left in the curious position that it accepts as correct the main proposition of fact for which the respondent/appellant contends, namely, that there was no civil ceremony performed in East Berlin but also accepts — insofar as the argument has gone — that the absence of such a ceremony does not invalidate the marriage which the parties purported to enter into on 18 March 1963 in the Lutheran Church at Adelaide Road, Dublin.

Counsel for the applicant in the proceedings and the respondent in the appeal informed me that notice had been given to the Attorney General on 26 January 1984 pursuant to Order 60 of the Rules of the Superior Courts indicating an intention to challenge the constitutionality of all or part of the Marriages (Ireland Acts) 1844 to 1871, and at the same time the Chief State Solicitor was notified that a constitutional argument would not in fact be raised without further notice to the Attorney General. Again counsel on behalf of Mrs E. did indicate at the conclusion of her argument that she would wish to have an opportunity of addressing the court further in relation to the essential validity of the ceremony which did take place in the event of the court taking a particular view of the facts.

In the very special circumstances of this case, that is to say, the unusual background of fact, the religion of the parties and the extreme minority position which it has in this State, the absence of legal advice to the husband and the lengthy period during which the marriage subsisted I feel that it would be desirable to afford both parties an opportunity of addressing the court further as to the consequences which would properly flow from the findings of fact which I have made.

Indeed before summarising these findings there is one further particular matter of fact to which reference should be made. In his evidence, Mr E. swore that there were no witnesses or other guests present at the ceremony in March 1963. That view was supported by the fact that such records of the ceremony as exist make no reference to any witness. On the other hand Mrs E. swore positively that two of their friends, a Mr and Mrs V., were present at the ceremony as witnesses and indeed provided hospitality in relation to the occasion. On balance I feel that I must prefer the account in this regard of the ceremony as given by Mrs E. In general I would more readily infer that a witness who was swearing to a negative state of facts had forgotten or overlooked what took place than I would conclude that the conflicting evidence of a positive nature was a deliberate fiction and necessarily perjury. In summary, therefore, I find the relevant facts to be as follows:

1. Whether or not any official documentation was produced to Pastor M. who officiated at the ceremony which took place on 18 March 1963 I am satisfied that no civil ceremony of marriage between the plaintiff and the defendant took place in East Germany in the month of July or at any other time.

2. I am satisfied that no banns of marriage were published and no statutory licence or certificate was issued in relation to that ceremony.

3. I am satisfied that I. E. was not cognisant of any defect in the procedures adopted or taken in relation to the marriage ceremony aforesaid. Similarly I accept that both Mr and Mrs E. at all times honestly believed that they had entered into a valid and binding marriage as a result of the ceremony which took place in the Adelaide Road Church in March 1963.

4. I am satisfied on the balance of, probabilities that two witnesses were present when the ceremony aforesaid was conducted.

I will direct that the matter be re-entered as soon as the parties have had an opportunity of considering their respective positions.

Representation

I. E. v W. E.

1983 No. 31 CA

High Court (Circuit Appeal)

1 June 1984

[1985] I.L.R.M. 691
( This is an appeal by the respondent, W.E. (to whom I shall refer as ‘the husband’) from two orders made by Circuit Court Judge Noel Ryan on 21 July and 3 November 1983 respectively.

There is no dispute as to the amount of the maintenance as fixed by the learned Circuit Court Judge by those orders. The only issue which the appeal raises is whether the parties were ever validly married to each other. This issue involves important questions of law and, as presented, unusual and somewhat mysterious questions of fact. In the circumstances it was particularly unfortunate that the husband was not legally represented.

It is common case that the husband and the applicant, I.E. (to whom I shall refer as ‘the wife’) went through a form of marriage at ( name and address of church deleted ) on 18 March 1963. Again, both parties fully and freely accepted that they believed the marriage to have been a valid and legally binding commitment. Whilst the parties did have an intimate relationship prior to the ceremony in the Lutheran Church aforesaid, each of them regarded that ceremony as the basis of their matrimonial and domestic relationship which continued for some 20 years thereafter and resulted in the birth of one child — also W. — who is now 19 years of age.

It is the husband’s contention that the ceremony in 1963 did not constitute a valid marriage. He puts his case this way. The record of his marriage in the Lutheran Church in Dublin shows that there was produced to the pastor officiating at the ceremony (Pastor M.) a certificate from the appropriate authorities in East Berlin that the husband and the wife had entered into a civil *693 marriage at a particular place (Prenzlauer Berg) in East Berlin on 21 July 1962. The husband emphatically denies that he went through a form of marriage in East Berlin at any time and in particular he denies that he was in East Berlin in the month of July 1962. On behalf of the wife it is pointed out that there is a heavy burden imposed upon the husband in seeking to dispute the validity of the marriage at this stage (a proposition which I would readily accept) and it is argued — rather than sworn — that is is probable that some form of civil ceremony was in fact entered into by the parties in East Berlin. On behalf of the wife it was contended that the pastor who performed the ceremony in the Lutheran Church (though not available to give evidence) was a disciplined and conscientious man who would not have recorded inspecting a certificate of the civil marriage unless the same had been produced to him and inspected by him. Again, the wife herself, whilst not in a position to recall or give evidence of any civil ceremony to which she was a party, believed that she and the husband had called upon a number of officials in East Berlin and that it is probable that some of these visits related to or included the performance of the civil ceremony. Again, it was argued that the parties might well have considered it prudent to go through some form of marriage ceremony in East Berlin as a means of overcoming what were then very serious problems with regard to international travel.

The background to the question of fact is colourful and romantic. The husband is now 43 years of age. Although he was a native of and resident in West Berlin it was in East Berlin that he studied music between 1955 and 1960. About 1958 he met the wife (than I. L.) who resided in East Berlin and was then about 15 years of age. They developed a deep affection for each other. In 1960 the husband returned to West Berlin but frequently — indeed daily — visited the wife. At that time the notorious Berlin Wall had not been erected.

In 1961 the husband came to Ireland to take up a position here. On 27 July 1962 he obtained in Dublin foreign currency and petrol coupons. On 31 July 1962 he passed through Dover on his way to Germany. As I understand it he did cross from West Berlin to East Berlin on one or more occasion in August of that year but then obtained a transit visa to visit the Leipzig Trade Fair on 8 and 9 September 1962. When he visited East Berlin on that occasion he drove back with the wife hidden in the boot of his car. By that time the Berlin Wall had been constructed. The security was intense. In the circumstances the action of the parties was both courageous and romantic. Apparently, the story was widely reported in the international press. After this dramatic escape the parties remained for some weeks in West Berlin. The parties then came to Ireland sometime in October 1962. These facts were sworn to by the husband and not seriously disputed by the wife. Furthermore, they are corroborated in virtually every detail by the entries on the husband’s passport which was put in evidence. These facts place the husband in Berlin in August and September 1962. That fact is established with virtual certainty. However, the same evidence places the husband — with almost equal certainty — in Dublin in July 1962 so that it would have been impossible for him to have gone through a ceremony of marriage in East Berlin on the 21st day of that month. Indeed, it may be added that research has failed to turn up any record from the East German authorities of such a civil marriage having taken place. However, that fact has to be understood in the context that apparently a number of records of that nature were destroyed or mislaid.

I do not know and I cannot even speculate as to what record was shown to the clergyman who officiated at the ceremony in March 1963. I do not know how or by whom he was misled but it does seem to me that however weighty the onus of proof lying on the husband to prove that no civil ceremony took place he has managed to discharge that onus.

However, the next problem — and indeed the one which concerns me more — is the question of law. What is the effect or indeed the relevance of the fact that the parties had not been married in a civil ceremony prior to the religious ceremony which took place in March 1963? Obviously it was in this area that the husband was particularly hampered by his ignorance of the law. Indeed, it is a topic with which even the most experienced lawyers have considerable difficulties.

As I understand it the husband contended that the performance of a religious ceremony or marriage between parties who had not previously been married in a registry office constituted (prior to 1968) a criminal offence. In support of that contention the husband produced a typed document which was described as ‘extract from the Evangelisches Soziallexikon 7th Edition by Kreuz Verlag Stuttgart 1980’. Whilst I had some difficulty in understanding whether this publication emanated from the Lutheran Church or the civil authorities in Germany the one thing that is clear is that the document and the ordinance to which it refers forms no part of Irish civil law. That being so I found difficulty in following the relevance which should or might be attached to the absence of the civil ceremony.

Counsel on behalf of the wife who, as I say, contested the facts with regard to the civil ceremony on behalf of their client, interpreted the husband’s argument as being based in effect on s. 49 of the Act for Marriages (Ireland) 1844 (7 & 8 Vict., c. 81) which provides as follows:

… except in the case of marriages by Roman Catholic priests which may now be lawfully celebrated, if any persons shall knowingly and wilfully intermarry, after the said thirty-first day of March, in any place other than the church or chapel or certified presbyterian meeting house in which banns of matrimony between the parties shall have been duly and lawfully published, or specified in the licence, where the marriage is by licence, or the church, chapel, registered building or office, specified in the notice and registrar’s certificate or licence as aforesaid, or without due notice to the registrar, or without certificate of notice duly issued, or without licence from the registrar, in case such notice or licence is necessary under this Act, or in the absence of a registrar where the presence of a registrar is necessary under this Act, or if any persons shall knowingly or wilfully after the said thirty-first day of March intermarry in any certified presbyterian meeting house without publication of banns, or any licence, the marriage of all such persons, except in any case herein-before excepted, shall be null and void.

It is indeed common case that in relation to the ceremony which took place on 18 March 1963 no banns were published and no licence or statutory certificate was issued. Indeed it appeared from the evidence of Pastor P. that * until sometime shortly after March 1963 the Lutheran Church at Adelaide Road was not registered under s. 12 of the law relating to marriages in Ireland, Marriage Law (of Ireland) Amendment Act 1863 (26 & 27 Vict., c 27.

It seems to me settled law that to invalidate a marriage for non-compliance with any of the provisions contained in s. 49 aforesaid (or more particularly the English equivalent of the same legislation) it is necessary to establish not only that there should have been a conscious disregard of the provisions of the section but that both parties to the apparent marriage should have been aware of the defect. In Templeton v Tyree (1872) LR 2 P&D 420 the man had procured publication of the banns of marriage without any reference to the intended wife. In relation to that defect the judge ordinary summarised the law in the following terms (at p. 422):

All of the courts, however, both common law and ecclesiastical, held that it is absolutely necessary to prove that both parties are cognizant at the time of the undue publication in order to bring the case within the statute and to fulfil the exigency of the words ‘shall knowingly and wilfully intermarry without due publication of banns’.

Again in the next succeeding case in the same report — Greaves v Greaves (1872) LR 2 P&D 423 it was established that the man was aware that no licence had been issued prior to the marriage ceremony but the woman was not. In those circumstances the court pronounced for the validity of the marriage.

In the present case both parties treated the ceremony which took place on 18 March 1963 as a valid ceremony of marriage, and as I have said, it formed the basis of their matrimonial relationship which endured unquestioned for nearly twenty years thereafter. In fact Mrs E. did give some indication in the course of her evidence that her husband had hinted in recent years that there was some defect in their matrimonial status but if there was any substance in that evidence it is clear first that the applicant herself was not cognisant of any defect and, secondly, that insofar as the defect was or may have been believed to relate to the civil ceremony of marriage alleged to have taken place in East Berlin this has not been shown to have any bearing on the validity of the Irish marriage.

In the result, therefore, the court is left in the curious position that it accepts as correct the main proposition of fact for which the respondent/appellant contends, namely, that there was no civil ceremony performed in East Berlin but also accepts — insofar as the argument has gone — that the absence of such a ceremony does not invalidate the marriage which the parties purported to enter into on 18 March 1963 in the Lutheran Church at Adelaide Road, Dublin.

Counsel for the applicant in the proceedings and the respondent in the appeal informed me that notice had been given to the Attorney General on 26 January 1984 pursuant to Order 60 of the Rules of the Superior Courts indicating an intention to challenge the constitutionality of all or part of the Marriages (Ireland Acts) 1844 to 1871, and at the same time the Chief State Solicitor was notified that a constitutional argument would not in fact be raised without further notice to the Attorney General. Again counsel on behalf of Mrs E. did indicate at the conclusion of her argument that she would wish to have an opportunity of addressing the court further in relation to the essential validity of the ceremony which did take place in the event of the court taking a particular view of the facts.

In the very special circumstances of this case, that is to say, the unusual background of fact, the religion of the parties and the extreme minority position which it has in this State, the absence of legal advice to the husband and the lengthy period during which the marriage subsisted I feel that it would be desirable to afford both parties an opportunity of addressing the court further as to the consequences which would properly flow from the findings of fact which I have made.

Indeed before summarising these findings there is one further particular matter of fact to which reference should be made. In his evidence, Mr E. swore that there were no witnesses or other guests present at the ceremony in March 1963. That view was supported by the fact that such records of the ceremony as exist make no reference to any witness. On the other hand Mrs E. swore positively that two of their friends, a Mr and Mrs V., were present at the ceremony as witnesses and indeed provided hospitality in relation to the occasion. On balance I feel that I must prefer the account in this regard of the ceremony as given by Mrs E. In general I would more readily infer that a witness who was swearing to a negative state of facts had forgotten or overlooked what took place than I would conclude that the conflicting evidence of a positive nature was a deliberate fiction and necessarily perjury. In summary, therefore, I find the relevant facts to be as follows:

1. Whether or not any official documentation was produced to Pastor M. who officiated at the ceremony which took place on 18 March 1963 I am satisfied that no civil ceremony of marriage between the plaintiff and the defendant took place in East Germany in the month of July or at any other time.

2. I am satisfied that no banns of marriage were published and no statutory licence or certificate was issued in relation to that ceremony.

3. I am satisfied that I. E. was not cognisant of any defect in the procedures adopted or taken in relation to the marriage ceremony aforesaid. Similarly I accept that both Mr and Mrs E. at all times honestly believed that they had entered into a valid and binding marriage as a result of the ceremony which took place in the Adelaide Road Church in March 1963.

4. I am satisfied on the balance of, probabilities that two witnesses were present when the ceremony aforesaid was conducted.

I will direct that the matter be re-entered as soon as the parties have had an opportunity of considering their respective positions.

Representation

I. E. v W. E.

1983 No. 31 CA

High Court (Circuit Appeal)

1 June 1984

[1985] I.L.R.M. 691
( This is an appeal by the respondent, W.E. (to whom I shall refer as ‘the husband’) from two orders made by Circuit Court Judge Noel Ryan on 21 July and 3 November 1983 respectively.

There is no dispute as to the amount of the maintenance as fixed by the learned Circuit Court Judge by those orders. The only issue which the appeal raises is whether the parties were ever validly married to each other. This issue involves important questions of law and, as presented, unusual and somewhat mysterious questions of fact. In the circumstances it was particularly unfortunate that the husband was not legally represented.

It is common case that the husband and the applicant, I.E. (to whom I shall refer as ‘the wife’) went through a form of marriage at ( name and address of church deleted ) on 18 March 1963. Again, both parties fully and freely accepted that they believed the marriage to have been a valid and legally binding commitment. Whilst the parties did have an intimate relationship prior to the ceremony in the Lutheran Church aforesaid, each of them regarded that ceremony as the basis of their matrimonial and domestic relationship which continued for some 20 years thereafter and resulted in the birth of one child — also W. — who is now 19 years of age.

It is the husband’s contention that the ceremony in 1963 did not constitute a valid marriage. He puts his case this way. The record of his marriage in the Lutheran Church in Dublin shows that there was produced to the pastor officiating at the ceremony (Pastor M.) a certificate from the appropriate authorities in East Berlin that the husband and the wife had entered into a civil marriage at a particular place (Prenzlauer Berg) in East Berlin on 21 July 1962. The husband emphatically denies that he went through a form of marriage in East Berlin at any time and in particular he denies that he was in East Berlin in the month of July 1962. On behalf of the wife it is pointed out that there is a heavy burden imposed upon the husband in seeking to dispute the validity of the marriage at this stage (a proposition which I would readily accept) and it is argued — rather than sworn — that is is probable that some form of civil ceremony was in fact entered into by the parties in East Berlin. On behalf of the wife it was contended that the pastor who performed the ceremony in the Lutheran Church (though not available to give evidence) was a disciplined and conscientious man who would not have recorded inspecting a certificate of the civil marriage unless the same had been produced to him and inspected by him. Again, the wife herself, whilst not in a position to recall or give evidence of any civil ceremony to which she was a party, believed that she and the husband had called upon a number of officials in East Berlin and that it is probable that some of these visits related to or included the performance of the civil ceremony. Again, it was argued that the parties might well have considered it prudent to go through some form of marriage ceremony in East Berlin as a means of overcoming what were then very serious problems with regard to international travel.

The background to the question of fact is colourful and romantic. The husband is now 43 years of age. Although he was a native of and resident in West Berlin it was in East Berlin that he studied music between 1955 and 1960. About 1958 he met the wife (than I. L.) who resided in East Berlin and was then about 15 years of age. They developed a deep affection for each other. In 1960 the husband returned to West Berlin but frequently — indeed daily — visited the wife. At that time the notorious Berlin Wall had not been erected.

In 1961 the husband came to Ireland to take up a position here. On 27 July 1962 he obtained in Dublin foreign currency and petrol coupons. On 31 July 1962 he passed through Dover on his way to Germany. As I understand it he did cross from West Berlin to East Berlin on one or more occasion in August of that year but then obtained a transit visa to visit the Leipzig Trade Fair on 8 and 9 September 1962. When he visited East Berlin on that occasion he drove back with the wife hidden in the boot of his car. By that time the Berlin Wall had been constructed. The security was intense. In the circumstances the action of the parties was both courageous and romantic. Apparently, the story was widely reported in the international press. After this dramatic escape the parties remained for some weeks in West Berlin. The parties then came to Ireland sometime in October 1962. These facts were sworn to by the husband and not seriously disputed by the wife. Furthermore, they are corroborated in virtually every detail by the entries on the husband’s passport which was put in evidence. These facts place the husband in Berlin in August and September 1962. That fact is established with virtual certainty. However, the same evidence places the husband — with almost equal certainty — in Dublin in July 1962 so that it would have been impossible for him to have gone through a ceremony of marriage in East Berlin on the 21st day of that month. Indeed, it may be added that research has failed to turn up any record from the East German authorities of such a civil marriage having taken place. However, that fact has to be understood in the context that apparently a number of records of that nature were destroyed or mislaid.

I do not know and I cannot even speculate as to what record was shown to the clergyman who officiated at the ceremony in March 1963. I do not know how or by whom he was misled but it does seem to me that however weighty the onus of proof lying on the husband to prove that no civil ceremony took place he has managed to discharge that onus.

However, the next problem — and indeed the one which concerns me more — is the question of law. What is the effect or indeed the relevance of the fact that the parties had not been married in a civil ceremony prior to the religious ceremony which took place in March 1963? Obviously it was in this area that the husband was particularly hampered by his ignorance of the law. Indeed, it is a topic with which even the most experienced lawyers have considerable difficulties.

As I understand it the husband contended that the performance of a religious ceremony or marriage between parties who had not previously been married in a registry office constituted (prior to 1968) a criminal offence. In support of that contention the husband produced a typed document which was described as ‘extract from the Evangelisches Soziallexikon 7th Edition by Kreuz Verlag Stuttgart 1980’. Whilst I had some difficulty in understanding whether this publication emanated from the Lutheran Church or the civil authorities in Germany the one thing that is clear is that the document and the ordinance to which it refers forms no part of Irish civil law. That being so I found difficulty in following the relevance which should or might be attached to the absence of the civil ceremony.

Counsel on behalf of the wife who, as I say, contested the facts with regard to the civil ceremony on behalf of their client, interpreted the husband’s argument as being based in effect on s. 49 of the Act for Marriages (Ireland) 1844 (7 & 8 Vict., c. 81) which provides as follows:

… except in the case of marriages by Roman Catholic priests which may now be lawfully celebrated, if any persons shall knowingly and wilfully intermarry, after the said thirty-first day of March, in any place other than the church or chapel or certified presbyterian meeting house in which banns of matrimony between the parties shall have been duly and lawfully published, or specified in the licence, where the marriage is by licence, or the church, chapel, registered building or office, specified in the notice and registrar’s certificate or licence as aforesaid, or without due notice to the registrar, or without certificate of notice duly issued, or without licence from the registrar, in case such notice or licence is necessary under this Act, or in the absence of a registrar where the presence of a registrar is necessary under this Act, or if any persons shall knowingly or wilfully after the said thirty-first day of March intermarry in any certified presbyterian meeting house without publication of banns, or any licence, the marriage of all such persons, except in any case herein-before excepted, shall be null and void.

It is indeed common case that in relation to the ceremony which took place on 18 March 1963 no banns were published and no licence or statutory certificate was issued. Indeed it appeared from the evidence of Pastor P. that until sometime shortly after March 1963 the Lutheran Church at Adelaide Road was not registered under s. 12 of the law relating to marriages in Ireland, Marriage Law (of Ireland) Amendment Act 1863 (26 & 27 Vict., c 27.

It seems to me settled law that to invalidate a marriage for non-compliance with any of the provisions contained in s. 49 aforesaid (or more particularly the English equivalent of the same legislation) it is necessary to establish not only that there should have been a conscious disregard of the provisions of the section but that both parties to the apparent marriage should have been aware of the defect. In Templeton v Tyree (1872) LR 2 P&D 420 the man had procured publication of the banns of marriage without any reference to the intended wife. In relation to that defect the judge ordinary summarised the law in the following terms (at p. 422):

All of the courts, however, both common law and ecclesiastical, held that it is absolutely necessary to prove that both parties are cognizant at the time of the undue publication in order to bring the case within the statute and to fulfil the exigency of the words ‘shall knowingly and wilfully intermarry without due publication of banns’.

Again in the next succeeding case in the same report — Greaves v Greaves (1872) LR 2 P&D 423 it was established that the man was aware that no licence had been issued prior to the marriage ceremony but the woman was not. In those circumstances the court pronounced for the validity of the marriage.

In the present case both parties treated the ceremony which took place on 18 March 1963 as a valid ceremony of marriage, and as I have said, it formed the basis of their matrimonial relationship which endured unquestioned for nearly twenty years thereafter. In fact Mrs E. did give some indication in the course of her evidence that her husband had hinted in recent years that there was some defect in their matrimonial status but if there was any substance in that evidence it is clear first that the applicant herself was not cognisant of any defect and, secondly, that insofar as the defect was or may have been believed to relate to the civil ceremony of marriage alleged to have taken place in East Berlin this has not been shown to have any bearing on the validity of the Irish marriage.

In the result, therefore, the court is left in the curious position that it accepts as correct the main proposition of fact for which the respondent/appellant contends, namely, that there was no civil ceremony performed in East Berlin but also accepts — insofar as the argument has gone — that the absence of such a ceremony does not invalidate the marriage which the parties purported to enter into on 18 March 1963 in the Lutheran Church at Adelaide Road, Dublin.

Counsel for the applicant in the proceedings and the respondent in the appeal informed me that notice had been given to the Attorney General on 26 January 1984 pursuant to Order 60 of the Rules of the Superior Courts indicating an intention to challenge the constitutionality of all or part of the Marriages (Ireland Acts) 1844 to 1871, and at the same time the Chief State Solicitor was notified that a constitutional argument would not in fact be raised without further notice to the Attorney General. Again counsel on behalf of Mrs E. did indicate at the conclusion of her argument that she would wish to have an opportunity of addressing the court further in relation to the essential validity of the ceremony which did take place in the event of the court taking a particular view of the facts.

In the very special circumstances of this case, that is to say, the unusual background of fact, the religion of the parties and the extreme minority position which it has in this State, the absence of legal advice to the husband and the lengthy period during which the marriage subsisted I feel that it would be desirable to afford both parties an opportunity of addressing the court further as to the consequences which would properly flow from the findings of fact which I have made.

Indeed before summarising these findings there is one further particular matter of fact to which reference should be made. In his evidence, Mr E. swore that there were no witnesses or other guests present at the ceremony in March 1963. That view was supported by the fact that such records of the ceremony as exist make no reference to any witness. On the other hand Mrs E. swore positively that two of their friends, a Mr and Mrs V., were present at the ceremony as witnesses and indeed provided hospitality in relation to the occasion. On balance I feel that I must prefer the account in this regard of the ceremony as given by Mrs E. In general I would more readily infer that a witness who was swearing to a negative state of facts had forgotten or overlooked what took place than I would conclude that the conflicting evidence of a positive nature was a deliberate fiction and necessarily perjury. In summary, therefore, I find the relevant facts to be as follows:

1. Whether or not any official documentation was produced to Pastor M. who officiated at the ceremony which took place on 18 March 1963 I am satisfied that no civil ceremony of marriage between the plaintiff and the defendant took place in East Germany in the month of July or at any other time.

2. I am satisfied that no banns of marriage were published and no statutory licence or certificate was issued in relation to that ceremony.

3. I am satisfied that I. E. was not cognisant of any defect in the procedures adopted or taken in relation to the marriage ceremony aforesaid. Similarly I accept that both Mr and Mrs E. at all times honestly believed that they had entered into a valid and binding marriage as a result of the ceremony which took place in the Adelaide Road Church in March 1963.

4. I am satisfied on the balance of, probabilities that two witnesses were present when the ceremony aforesaid was conducted.

I will direct that the matter be re-entered as soon as the parties have had an opportunity of considering their respective positions.

Representation

F. (P.) v. O’M (G.)

[1999] IEHC 2
JUDGMENT of Mr. Justice O’Higgins delivered the 26th day of March 1999.

1. The Petitioner and Respondent went through a ceremony of marriage according to the rites of the Roman Catholic Church in County Dublin in December 1987. Following the marriage they lived together in County Dublin. They have one child who was born in September 1989. After the breakdown of the relationship proceedings for judicial separation were commenced in the Circuit Court in Dublin on 17th May, 1995. Nullity proceedings were commenced by petition dated 31st January, 1996. By Order of the Master of the High Court dated 16th October, 1996 seventeen issues were Ordered to be tried. However, in the course of the hearing it was indicated by Counsel for the Applicant that he was relying on one ground only. That ground concerned whether, in the circumstances of the case, the Petitioner gave full free and informed consent to the marriage.

THE EVIDENCE

2. Seventeen witnesses in all were called, and the case lasted over a period of eight days. A great deal of the evidence is concerned with different versions of events given by the witnesses as to matters that occurred after the marriage took place, and is directed to issues ofcredibility. In those circumstances, it is unnecessary to review in detail the evidence that has been given or analyse the marriage history at any length

3. The couple met in 1984 when P.F. was twenty and G.O’M. was twenty-one. They had a happy and relatively uneventful courtship. They commenced having sexual intercourse about six months after they met. They became engaged at Christmas of 1986 and were married in December 1987. They purchased a house in the summer of 1987.P.F. lived there and G.O’M. joined him at weekends. They were, by any standards, a very good looking couple. He was a member of a successful business family and she had an outgoing vivacious personality. The marriage was initially very happy but Mr. F. suspected a relationship betweenG.O’M. and a certain Mr. K. for whom she had worked prior to the marriage and for whom she continued to work after she became pregnant. A child was born in September 1989. It is unnecessary in these proceedings to analyse the history of the marriage as the issue in this case is to whetherG.O’M. was having an affair with Mr. K. at a time when she was engaged to Mr. F., and, if there was such an affair, whether there was full and free consent to the marriage on the part of Mr. F. It is fair to say, however, that his suspicions about her relationship with Mr. K. cast some cloud on the marriage, andG.O’M. regarded P.F. as being jealous and over-possessive. There are allegations and counter-allegations of sporadic unpleasant scenes in the marriage which G.O’M. attributed to his excessive drinking and staying out late. In 1991 they moved house to an area not far away in south County Dublin. G.O’M. says that her husband’s conduct deteriorated and that he frequently came home in the early hours of the morning. However, there were good times in the marriage even then. In the month of August 1993, Mr K’s wife phoned G.O’M. and Mr. F. to tell them that she suspected her husband Mr. K. was having an affair with G.O’M.. It is alleged also that she sent nasty communications to G.O’M. and to the neighbours concerning her husband’s suspected adultery with G.O’M.. Around this time both parties sought medical help and G.O’M. volunteered to sever any contact with Mr. K.. However, after a successful few months, things began to deteriorate again and the relationship was stormy and unhappy. Mr. F. moved out of the marital bedroom sometime between September 1994 and January 1995 and lived in the attic. He eventually left the house in October 1995. He commenced proceedings for judicial separation in the Circuit Court in May and the grounds were, inter alia, the adultery of his wife with Mr. K..

4. The contention of the petitioner is straight forward. He claims that during the time of his engagement to G.O’M. she was involved in an affair with Mr. K.. Had he known this he would not have married G.O’M.. In the circumstances he claims that his consent to the marriage was not fully informed.

5. The Petitioner relies on five main pieces of evidence to support the allegations that he makes. They are as follows:

1. The evidence of Mr. K. (neighbour).

2. The evidence of Mr. T.

3. The evidence of Mrs. K.

4. The alleged admission by Mr. K..

5. The answer filed in the pleadings in the applications for judicial separation.

6. It should be borne in mind that all allegations of impropriety are vigorously and persistently denied by G.O’M. (subject to one matter, to which I shall refer later) and any impropriety is denied by Mr. K.. The question as to whether Mr. K. and G.O’M. were having an affair during the currency of the marriage and/or up to recent times is irrelevant to any issue which the Court has to determine save insofar as the question of credibility arise. Moreover, the allegations have to be placed in the context where the uncontradicted evidence of several witnesses is to the effect that during their engagement and up to, and for some time after the marriageG.O’M. showed every sign of being totally committed to and in love with the Petitioner in this case.

THE EVIDENCE OF MR. K (NEIGHBOUR)

7. Mr. K. was a neighbour of the parties from 1987 for a period of years. He was sub-poenaed to Court. Between June and December before the wedding he was returning from work one evening and he saw G.O’M. embracing and kissing on the mouth a man whom he subsequently identified at the wedding as being Mr. K.. He put the incident out of his mind until the wedding day. This incident is denied vehemently by both G.O’M. and Mr. K.. Because of the suggestion that it was impossible to see through the window from the location where Mr. K. was, I was invited by the parties to visit the location myself. A visit to the location confirmed that it is quite possible to see through the window as sworn to by Mr. K.. It is submitted that Mr.K.’s evidence should be disregarded because of the length of time that has elapsed since the incident alleged, the fleeting opportunity for observation and the inherent dangers involved in visual identification. Moreover, Mr. K. is a friend of the Petitioner,P.F.

8. Mr. K. impressed me as being a careful, a truthful and a slightly reluctant witness and I accept his evidence as being correct notwithstanding the caution with which I have to approach it.

THE EVIDENCE OF MR T.

9. Mr. T. lived four or five doors away from the parties from August of 1987 until 1990. His wife was expecting a child in November 1987 and most evenings he would take his dog for a walk, sometimes early in the evening or otherwise late. As he was walking on the road he noticed a gentleman who used to go into the F’s house. After a few times he knew him to be Mr. K.. On one or two occasions when he was walking past the F’s house, he noticed a man, whom he subsequently identified as Mr. K., coming towards him. When Mr. K. saw him he would turn around and walk back to where he had parked his car which was some distance away from the F’s house. On one occasion he saw the gentleman turning around and going back into the F’s house and Mrs. F received him at the door as far as Mr. T. knows. These incidents occurred from September 1987 and lasted until 1990. He knew Mr. K. prior to seeing him in there. He never saw the car parked at the driveway to the house but parked sixty to a hundredyards away. He gave evidence of seeing the car in mornings and that he adverted to it because he had seen it there on previous evenings. This occurred on occasions when Mr. F. was away. Both Mr. K. and G.O’M. deny any visits during the time in question (other than one at Christmas time when Mr. F. was present). It was suggested to Mr. T. that his evidence was incorrect and that he was motivated by bad feeling against Mr. K. because of previous business dealings. Mr. T. denied this and pointed out that on an occasion when he metG.O’M. and Mr. K. in a public house that he had an amicable conversation with them. The evidence of Mr. T. is most unlikely to be mistaken. It is either a fabrication or the truth. I believe it to be true. The evidence of stealth in parking the car away from the entrance to G. O’M’s house and the evidence of the car being seen in the night-time and the following morning is suggestive of Mr. K. staying overnight and it suggestive of an affair. However, the evidence of Mr. T. does not establish on the balance of probabilities anything other than one visit prior to the date of the wedding. He merely stated that he thought the incidents started from September onwards. There is no evidence of parking the car overnight prior to the date of the wedding.

THE EVIDENCE OF MRS. K.

10. Mrs. K. was married to Mr. K. but is now separated. She blames G.O’M. for the breakdown of her marriage. It is alleged that, following the breakdown of her marriage, she made many nasty phone calls to G.O’M.. It is also alleged that she circulated hurtful material concerning G.O’M. around the neighbourhood. Furthermore, it is suggested that she sent to G.O’M. a birthday card which contained a razor blade and unpleasant comments. In default of these matters being put to Mrs. K. when she was in the witness box, it would be unfair to definitely attribute this material to her. Nevertheless it was clear from her demeanour in the witness box that she is suffering from pain and harbours animus against both her husband andG.O’M.. Her evidence has to be regarded in that light. In the course of her evidence she said that her husband had admitted that he knew G.O’M. prior to opening a health club. ‘It then turned out that they had been involved for several years and he admitted that he was having an affair with her for several years before she became employed by him’, ‘from the time she came into their lives and destroyed them’. She said that in 1993, when confronted by her, Mr. K. admitted having an affair with G. O’M., her and led her to believe by his answers, that the affair had commenced prior to her coming into his employment in 1983.

“In 1993 I faced him with it, in August 1993, with my belief of how and why she came into our lives because he had already been having an affair with her and he admitted it to me.”

11. Although both Mr. K. and G.O’M. deny any affair, I accept the uncontradicted evidence of Mrs. K. – that Mr. K. admitted an affair with G.O’M. to her. That admission does not of itself however provide satisfactory evidence as to the commencement or the duration of the said affair.

THE ALLEGED ADMISSION BY MR. K.

12. In August 1993, Mrs. K. phoned Mr. F. to raise the affair between her husband Mr. K. and G.O’M.. She had a telephone account from a hotel in America that showed that he had phoned G.O’M.’s number. She said that Mr. F. was hurt and shocked. Mr. F.’s account is somewhat different. He said he received a phone call from his wife in his office saying to expect a phone call from D.K. accusing of her, G.O’M., of having an affair with Mr. K.. Subsequently, Mrs K. phoned him. He said that Mrs. K. told him that she had proof of an affair, that she had found phone bills and photographs drawn by his son in the back seat of her husband’s car and that she could smell her perfume in the car. After the phone call from Mrs. K.,P.F. had a telephone conversation with Mr. K. in which he alleges that Mr. K. admitted to the affair. There are three different versions of that conversation.

13. Mr. F. gave evidence that following the phone call he drove to Killiney beach and returned home after about an hour and a half. His son was not there and his wife was sleeping in the son’s bed. He went up to her to talk to her but she said that she had nothing to say. He then went downstairs and phoned Mr. K. on his, Mr. K.’s mobile phone. The conversation went as follows. I said “this is P.F. here. Are you having an affair with my wife?” I said “for God’s sake, be man enough to admit it”. His reply was “I will not speak to you until I speak to your wife, G”. I said, “I will get G. on the phone for you”. Mr. F. said that he took the telephone from their bedroom, brought it into the son’s bedroom and handed the telephone to his wife and said that Mr. K. wanted to speak to her on the telephone. He went downstairs to the T.V. room where he had made the telephone call there followed a three-way conversation in which the affair was admitted. When G.O’M. said “for God’s sake, tell him the truth”, Mr. K. said “yes, I am having an affair with your wife and I have always loved her and cared for her more than you have.”

14. In her direct evidence, G. O’M. said that an incident took place perhaps a day or two after the contact between Mrs. K. and P.F. The telephone call was the early hours of the morning, around 3.30 to 4 o’clock, from what she could remember. Her husband rang up Mr. K. and she was woken up by the shouting and she knew it was Mr. P.F. He was really upset. He was saying “tell it to me like a man, did you have an adulterous affair with my wife?” He thrust the telephone into her hand and said “you speak to him” or something like that. She picked up the telephone and said to Mr. K. “tell him the truth”. She didn’t hear the response. Her husband then went to bed. In cross-examination she said it could have been 10 o’clock but she thought perhaps it was 1 o’clock in the morning. She said she didn’t think it was 3.30 to 4 o’clock. She said she was awake at the time because she always stayed awake for her husband to come home. It was a gentlemanly phone call, her husband was upset and wanted to know the truth but he wasn’t being abusive. While she didn’t hear Mr. K’s response to the allegations if something”untoward or horrendous” had been admitted to, her husband wouldn’t have gone to bed. By his demeanour she presumed that he knew that Mr. K. did not have an affair with her.

15. Mr. K.’s account was that there was a conversation sometime in August but he wasn’t too sure of the date. P.F. asked him about three times if he was having an affair with G.O’M. and Mr. K. told him he wasn’t. Mr. K. was adamant that he had not an affair with G.O’M. and furthermore that he made this quite clear in the conversation. While he told his own Counsel that it appeared that the conversation was on the same line and that the phone was handed over from one person to another, he agreed with Mr. Durcan that there was a gap and that it was not just a question of somebody handing over the phone.

16. Mr. F. gave evidence that the day after the telephone conversation with Mr. K. he went to J. O’M., the twin sister of G.O’M., for advice and help. As a result of a conversation they had, a meeting took place in the afternoon attended by the Petitioner, the Respondent, together with her sister and her father. Different emphases were placed on the contents of the meeting. Mr. F. contends that the reason for the meeting were the allegations of adultery but the Petitioner, her father and her sister say that the allegations being made by Mrs. K. were being discounted by both the Petitioner and the Respondent, and that Mr.K.’s drinking and his wife’s taking of tablets were discussed. There is no mention of the alleged admission by Mr. K.. J.O’M., the sister of the Petitioner, impressed me as being an honest witness. She said that she was not aware of any phone admission from Mr. K. when she was consulted by Mr. F. Neither was it mentioned in the evidence of her father, Mr. O’M. Had it been mentioned at the time, I believe she would have recalled it. Furthermore, I accept from her evidence that it is most unlikely that the child was with her on the night of the phone call, but he could be been somewhere else. The fact that she has no such recollection, casts serious doubts on the accuracy of the evidence of Mr. F. concerning the time of this conversation with Mr. K. and in particular as to whether it was on the same night as he received the phone call from Mrs. K.. Unfortunately Mrs. K. was not cross-examined as to the number of phone calls she made toG.O’M.. Nevertheless, while he might be mistaken as to the chronology of events, I am prepared to accept the evidence of Mr. F. on this matter as being essentially correct. While he has been inaccurate on certain matters such as the family business and the date of his knowledge of his wife’s pregnancy, in my view, Mr. F. is an honest witness doing his best to tell the truth. Moreover, if his evidence were to consist of self-seeking falsehoods on this topic, it seems to me likely that he would invent an account that established an affair, not just during the marriage but at the time inissue, that is, prior to the marriage when the parties were engaged. G. O’M. , however, was not a convincing witness. I found her to be careless and self-seeking in her evidence. I cannot accept her denial that she made four phone calls to Mr. K.’s mobile phone during the months of September and October 1993. Her speculative explanations for those calls are not credible. Her explanation of the answer in the judicial separation proceedings is another instance where her evidence is manifestly unsatisfactory and cannot be accepted. Neither has Mr. K. been an impressive witness. His account of his reasons for the telephone calls from Palm Beach, and his account of the insurance details of the car, and his explanation for booking the single room in the hotel in Galway, while peripheral matters, all lack credibility. Furthermore, the fact that his wife’s evidence that he admitted an affair withG.O’M. has not been contradicted by him, is significant. I therefore accept that, in conversation with P.F., Mr. K. admitted an affair with G.O’M..

THE ANSWER IN THE PLEADINGS

17. In the application for judicial separation dated the 17th May 1995, in paragraph six it is pleaded (inter alia) that “the Respondent herein has committed adultery with Mr. J.K. and has behaved in such a way towards the Applicant herein he can not longer be expected to cohabit with her”. The answer at paragraph five reads as follows:-

“It is admitted that the Respondent had a relationship with J.K.. The Applicant had been acquainted with J.K. for some thirteen years. During that period the Respondent was employed by J.K. and following her resignation from his employment consequent to her marriage in 1987 this relationship continued. The Respondent has always regarded Mr. K. as an older friend and confidante and valued his experience and advice. In 1993 this friendship gave raise (sic) to serious dissension between the Respondent and the Applicant.”

18. Those pleadings were settled by Counsel. It is submitted that the Respondent frequently uses the word “relationship” and that it does not necessarily mean a sexual relationship. While I accept that this may be so, these proceedings were in answer to a specific allegation of adultery in an application for judicial separation and must be viewed in that context. Moreover, in the course of the hearing, I invited the parties to call the appropriate evidence in the event of there being a misunderstanding between legal advisers and client which led to a mistake in drafting. No such evidence was forthcoming.

19. The Respondent’s own explanation for the answer filed is revealing. In answering Ms. Cronin’s questions concerning the answer, she said she gave her instructions to Reddy, Charlton and McKnight, Solicitors. When questioned as to what instructions she gave in response to that questions she said “In response to that question, I admitted that I had an affair with Mr. K. Because on November 10th (sic) 1994, I got excited and I did reach climax even though I had my clothes on. I perceive that as having a sexual relationship”. She said she admitted what she would have considered as an affair. However, in cross-examination when Mr. Durcan asked her if, when the answer was put in on her behalf, she intended to accept that some sexual contact had taken place between herself and Mr. K., she said that “I didn’t have a sexual encounter with Mr. K. on the 10th December, 1994”. She previously answered the question, “did yourself and Mr. K. subsequently discuss what had taken place on that night, the fact that you had some form of sexual encounter?”, “yes we did, downstairs in the kitchen”. She maintained that she did not know that the answer did not deny adultery. The explanations given by the Respondent are contradictory and unconvincing. It is noteworthy that Mr. K. denies any such incident and says that he comforted her by kissing her on the cheek and embraced her. There was nothing inappropriate in his behaviour and he didn’t do anything that would have caused her to become sexually excited.

20. For the purposes of the present case, whether such an incident took place is immaterial but I do not accept the incident alleged as being the reason for paragraph 5 in the answer filed on behalf of the Respondent in the matrimonial proceedings.

21. The cumulative effect of the findings of fact in relation to the five matters mentioned above lead me to the firm conclusion that the Respondent had an affair with Mr. K. before and after the marriage.

THE LAW

22. There is considerable doubt as to what the requisite standard of proof is in nullity proceedings and the matter awaits clarification by the Supreme Court in an appropriate case. The differing views have been most helpfully set out in a judgment of Budd J. in A.B. v. E.B. (1994) 2 FLR p. 36. In reaching conclusions as to the factual matters in this case, I have exercised caution and scepticism in scrutinising the evidence proffered. In my view the matters have not been proved beyond reasonable doubt but they have been proved to a higher standard than mere probability. The Petitioner has discharged ‘the high but less demanding burden than that in criminal cases’ adverted to in thejudgment of Denham J. in S. v. K. 1993 1 FLR 18.

23. Counsel for the Applicant submits that, as P.F. had not adequate knowledge of a circumstance of substance, to wit, the relationship of G.O’M. with Mr. K., his consent to the marriage was not an informed consent. The unchallenged evidence of P.F. is to the effect that had he known that G.O’M. was having an affair with Mr. K., he would not have consented to the marriage. I accept this evidence.

24. His further evidence was that had he been aware of a committed relationship short of a full affair between G.O’M. and Mr. K., he would not have gone ahead with the marriage as there would have been a breakdown in trust. I accept that evidence also.

25. I was referred to the case of B.J.M. v. C.M. (1996) 2 IR 575 where a nullity petition was granted on the finding that a petitioner’s consent to a marriage was apparent rather than real where the respondent was lacking in candour in failing to reveal to the petitioner the extent of a disfigurement. As the petitioner was not fully aware of the details of the respondent’s injuries at the time of the marriage, he was deprived of a proper election.

26. I was also referred to the transcript of evidence in the case of M.J. v. C.J. (21st February, 1991, unreported) and the ex tempore judgment of McKenzie J. therein. In that case three days after the wedding, the husband stated that he had been involved with a married woman with two children up to three weeks before the marriage, having categorically denied it up to that time. The marriage was annulled.

27. The Petitioner relies strongly on a passage in the case of M.O’N. (orse. O’C) v. B. O’C. (1996) 1 IR 208. At page 217 Blayney J. said:-

“What has to be determined, accordingly, is whether the consent of the wife was an informed consent, a consent based upon adequate knowledge, and the test is a subjective one, that is to say, that the test is whether this spouse, marrying this particular man, could be said to have had adequate knowledge of every circumstance relevant to the decision she was making, so that her consent could truly be said to be an informed one”.

The case of B.J.M. v. C.M. can be distinguished from the present case. In that case a physical condition constituted an impediment to the establishment and evolution of a marital relationship between the parties. That case concerned a condition, albeit a physical one, of one of the parties. The decision in the case ofM.J. v. C.J. is of limited assistance. In that case the petition was unopposed and one of the parties was not legally represented. Furthermore, it was an ex tempore judgment delivered in circumstances where it was not necessary for the learned Judge to rise to consider his decision. Moreover, the decision is based both on the absence of true consent and because both parties lacked due discretion.

“Knowledge of every circumstance relevant to the decision” referred to in the M.O’N. (orse O’C.) v. B.O’C has to be placed within the context of that particular judgment. In my view the circumstances referred to in that judgment concerned the condition and the disposition of one of the parties, which condition was relevant to the question of informed consent to the marriage. Indeed, at page 218 of the judgment discussing whether it was a circumstance of substance, Blayney J. said:-

“Apart altogether from any question of psychiatric illness – and there was no evidence that the husband had ever suffered from such illness – a person’s mental health and mental stability is obviously a matter of great importance and anything that might throw doubt upon it calls for serious consideration”.

28. The circumstances must pertain to some condition, disposition or proclivity and not merely to a matter of conduct.

29. In my view, the failure to disclose factual information concerning the wilful conduct of one of the parties, is not the type of circumstance contemplated in the decision of Blayney J. The non-disclosure of inappropriate behaviour prior to or during the courtship is not a grounds for nullity. In my view, it is not incumbent on the parties to give a history of their good or bad behaviour prior to getting married in order to contract a valid marriage. In this case the parties had a courtship which lasted several years. They knew prior to getting married the nature of the contract that they were undertaking. In the circumstances I must refuse the petition on the basis that the Petitioner has failed to satisfy me that his consent was not full, free and informed. That being so, it is unnecessary to consider the other arguments advanced by the Respondent.

E.C. (Orse. M.) v. K.M.

[1991] 2 IR 193
Barr J.

Barr J.
5th December 1989

This is a petition brought by the wife seeking a decree that a marriage which purported to have taken place between the petitioner and respondent on the 15th May, 1982, is null and void on the ground that the marriage was never consummated due to the impotence of the petitioner.
The facts
The petitioner was born on 13th October, 1961. Having completed her secondary education and a secretarial course, she joined one of the major banks and continues to serve as a bank official. Early in 1980 when she was 18 years old the petitioner met the respondent who is five years older than her. A courtship started soon afterwards which culminated in marriage in accordance with the rites of the Roman Catholic Church on the 15th May, 1982. Both parties profess that religion. There was no attempt to have sexual intercourse during the courtship and I am satisfied that the petitioner had no reason to believe that she would have any difficulty as to normal sexual consummation of the relationship after marriage.
I accept in its entirety the petitioner’s patently honest and fair account of the unhappy history of her marital relationship with the respondent and of the serious efforts which she made over a protracted period of years to effect sexual intercourse with her partner. Prior to the marriage the respondent already had an alcohol problem, but it emerged as and from the date of the nuptials that it was more serious than the petitioner had realised at that time. It remained a continuing feature of the respondent’s conduct towards the petitioner through the period from the date of marriage until the parties finally separated in December, 1987. I am satisfied also that from the beginning of the marriage the respondent subjected the petitioner to intermittent physical violence not only while drunk but also occasionally while sober, and that this conduct also was a persistent continuing feature of the relationship.
On the night of the wedding the respondent was so drunk that he was incapable of attempting sexual intercourse. For that and other reasons the parties made no effort to consummate the marriage for about one week after the nuptials. The petitioner then discovered that through seizure of muscles in the area of her vagina she was unable to have sexual intercourse of her own volition. She was anxious to consummate the marriage as she believed that if she succeeded in doing so, her relationship with the respondent would improve and she would succeed in persuading him to curtail his drinking habits. She made numerous efforts to have sexual intercourse with him but was unable to overcome her difficulties in that regard. She received no assistance from the respondent and continuing failures exacerbated his drinking habits and caused their relationship to deteriorate.
Eventually, in 1985, the applicant confided in her mother and told her about the difficulty in consummating the marriage. On the advice of the latter the petitioner consulted Dr. Rita Kirwan, a general medical practitioner, who in turn arranged for her to be treated by Dr. Frank O’Donoghue, a psychiatrist at St. Patrick’s Hospital who specialises in psycho-sexual problems. Both gave evidence before me. Examination of the petitioner had established that she was still virgo intacta. Dr. O’Donoghue diagnosed that the petitioner was suffering from a severe manifestation of a psychological disorder in relation to having sexual intercourse with the respondent which caused her vaginal and other related muscles to contract tightly thus preventing penetration of the petitioner’s vagina without the use of substantial force. This is a condition known as vaginismus. She received support and therapy from both doctors and both were satisfied that she was anxious to overcome the psychological barrier which prevented her from having sexual intercourse with the respondent. In addition to medical assistance the petitioner also sought and received help from a Catholic marriage guidance counsellor. She persuaded the respondent to attend the latter with her but this caused rows between them and they stopped going.
At the request of the court the petitioner was examined by Dr. Karl Mullen on 30th October, 1989. He stated in evidence:
“I believe she was desperately keen to consummate the marriage. It was not her fault that she did not succeed.”
His diagnosis was the same as that of Dr. O’Donoghue and Dr. Kirwan.
The petitioner continued her efforts intermittently to have sexual intercourse with the respondent and consummate the marriage but there was no improvement in the original psychological problem which had manifested itself from the beginning. The relationship between the parties deteriorated still further and there were increasing episodes of violence by the respondent. Eventually, in December, 1987, both parties agreed that they should part as the marriage had finally broken down. It appears that each accepted that the petitioner’s impotence in the matter of consummating the relationship was permanent. Subsequently, the petitioner initiated annulment proceedings in the Roman Catholic Ecclesiastical Court. The respondent participated therein and supported the petition for annulment. Recent correspondence between the solicitors for the parties in the present civil annulment proceedings also makes clear that the respondent does not wish to uphold the marriage.
Having obtained an ecclesiastical annulment of marriage, the petitioner has entered into a relationship with another man. After some initial difficulty, she has established a normal sexual relationship with her new partner who, in that regard, has given her the care and co-operation which was missing from her relationship with the respondent.
I am satisfied that there has been no collusion between the petitioner and the respondent as to the petition.
The law
In the course of this century, and in particular over the past 25 years or so, there have been major advances in the area of psychological medicine, including the investigation and treatment of psycho-sexual problems. These advances have been recognised by the courts and have influenced the development of the law of nullity in Ireland over the past two decades. The attitude of the courts is succinctly stated in the following passage from the judgment of Kenny J. in S. v. S. [1976-7] I.L.R.M. 156 at p. 163:
“Section 13 of the Act of 1870 did not have the effect of fossilising the law in its state in that year. That law is, to some extent at least, judge made and courts must recognise that the great advances made in psychological medicine since 1870 make it necessary to frame new rules which reflect these.”

A series of judgments before and after that in S. v. S. establishes that the present state of the law in Ireland as to nullity of marriage based on impotence, in so far as it is relevant to the instant case, is as follows:
If, when a marriage is solemnised, either of the parties to it is impotent then the contract is voidable and either party to the marriage may petition for a declaration of nullity. If the court makes such a decree then the effect on the marriage is to render it void ab initio. Unless and until a decree of nullity is granted on that ground the marriage continues to have full force and effect.
An impotent spouse cannot be granted a decree of nullity merely on the basis of his or her own impotence, unless there has been conduct on the part of the other spouse which prevents him or her from denying the “just cause” of the petition – as, for example, where a respondent, who is not impotent, has repudiated the marriage contract and its obligations – see the judgment of Hanna J. in McM. v. McM. [1936] I.R. 177 and that of Finlay P. (as he then was) in R. (otherwise W.) v. W. (Unreported, High Court, Finlay P., 1st July, 1980). In the instant case I am satisfied that the respondent’s participation and support of the petition to the ecclesiastical court for the annulment of the marriage by the Catholic Church and also recent correspondence to which I have referred, amounts to a clear and unequivocal repudiation by him of the marriage.
A petitioner must establish his or her case with a high degree of probability – see S. v. S. [1976-7] I.L.R.M. 156.
When a petitioner relies on impotence (whether his or her own or that of the other party) as a ground for annulment of marriage, it must be established that the disability is incurable. However, it is not necessary to prove that it amounts to universal impotence and it is sufficient to establish that in practical terms there is an incurable condition of impotence vis a vis the other party to the marriage, i.e., quoad hanc or quoad hunc a particular spouse – see S. v. S. [1976-7] I.L.R.M. 156 and McM. v. McM. [1936] I.R. 177.
Where a marriage is unconsummated due to the impotence of the wife it is not uncommon to discover on medical investigation (as in the present case) that the prime cause of her disability is not physical but psychological; that she was not aware of the difficulty before marriage and that it may relate only to her husband. As already referred to herein, her psychological fear of sexual intercourse with him may be so intense that it causes muscular contractions which physically prevent penetration. Dr. O’Donoghue’s evidence, which I accept, indicates that such a disability may or may not be permanent. This depends upon a number of factors – in particular, the wife’s willingness to co-operate with appropriate medical treatment; the nature and strength of the marital relationship between the parties and the co-operation of the husband in demonstrating a patient, loving response to the problem and the treatment thereof. In the light of the medical evidence and that of the petitioner I am satisfied that for a period of in or about five years from the beginning of the marriage she conscientiously did all that she could to overcome her impotence towards the respondent. I am also satisfied that she had a real desire to succeed in that objective and to consummate the marriage which she perceived was essential to the establishment of a good relationship with her husband. Years of sincere effort in that regard on her part without success have established that her psychological impotence towards the respondent is a permanent disability. There was some hope initially that medical treatment undergone by the petitioner might have effected a cure if the respondent had co-operated with it and if his relationship with the petitioner had been loving and stable. The evidence establishes that she persisted with her efforts to overcome her impotence towards the respondent as well as she could and for as long as might reasonably be expected of her. I am satisfied that he, for his part, failed throughout the subsistence of the relationship to co-operate with the petitioner in the medical treatment of her psychological problem or in the improvement and development of their relationship. There is nothing to suggest that if the parties had remained together there ever would have been any improvement in the respondent’s attitude towards the petitioner. For these reasons I am satisfied beyond reasonable doubt that the petitioner’s impotence towards the respondent arose out of a psychological disability which in all the circumstances should be regarded as incurable. I hold that the petitioner is entitled to a decree of nullity on that ground.

Price v Price

Supreme Court of Judicature.

Court of Appeal.

9 June 1916

[1916] 50 I.L.T.R 149

Sir Ignatius O’Brien, Bart., L.C.

This action in its original form, before amendment, was, in substance, an action by the plaintiff against the defendant for money had and received by the defendant for the use of the plaintiff. It is a proper and simple form of action where, there having been a failure of consideration, it is sought to recover the money paid in respect of the contract where the consideration has failed. I abstain for the moment from using the phrase “total failure of consideration,” because I wish to develop as briefly as I can what my view of the present action is with regard to the question which was so strongly agitated by counsel for the respondent in the appeal: that in order to maintain such an action there should be total failure of consideration; that this was a case in which there was no total failure of consideration; and that, consequently, the action did not lie. Now, the defence to the action in substance is one that, to the layman at least, would appear somewhat startling. The defendant agreed to marry the plaintiff, and the ceremony of marriage took place between them. It now appears that, owing to the impotency of the defendant in the present case, it was a form of marriage only, and that it was, and is, null and void. On the occasion of the marriage contract a sum of £475, which was the bride’s portion, was transferred to the defendant—partly in cash, £375, and partly by means of a promissory note, on which the plaintiff’s brother was liable, and which was payable after the marriage. This latter sum was, in fact, paid, nor could the brother have resisted payment at the time when the note matured. For all practical purposes, then, the facts may be considered in the plain and simple light of a payment of £475 by the plaintiff in the present action to the defendant as her marriage portion in respect of a marriage which was no marriage. That money paid under these circumstances should not be recovered would, I think, startle one not acquainted with the intricacies of the law. That a woman should part with her entire fortune, her dowry, to a man who represents that he is capable of entering into a valid marriage with her, innocently, no doubt, but cannot enter into a valid marriage with her, that she should lose that fortune because the empty ceremony had been gone through, would be startling to the lay man. But, of course, whatever the law is—be it ever so harsh—it must prevail if it be the law; and we have had here a most learned and interesting discussion of the law, beginning with the Year Books and coming down to the year 1915 for the purpose of persuading us that the law is not in harmony with what we conceive to be good reason and good sense, and that this man, there having been no marriage, is entitled to keep that money, and that this poor woman is now to remain dowerless. When the action was instituted—and this constitutes the only difficulty I have had in the case—there had been no decree of our Court declaring that the marriage was null and void, and the writ was issued in February, 1915, by the plaintiff in what would have been her marriage name had there been a valid marriage. The petition for the declaration of nullity had been presented *150 prior to the issue of the writ on January 13, 1915, and the decree of nullity was only pronounced on May 11, 1915, so that the action was, in fact, commenced before the declaration of nullity, and the plaintiff had obtained an order from the Court amending the proceedings by which she sues on the basis of her being an unmarried woman—Mary Anne McDonell, plaintiff, and Timothy Price, defendant. The necessity for thus proceeding, instead of instituting a new action by amending the writ and proceedings, seems to have arisen from a view, which I do not say is not well founded, that the Statute of Limitations might at that date have barred the right to recover the money, unless the statute had been kept from running by the existence of a valid writ issued prior to the expiration of six years from the date of the marriage. It might be possible that in law, under circumstances of this kind, the statute did not run from that date, but that is immaterial. Counsel, on behalf of the plaintiff, could take no risk, and accordingly they obtained an order from the Court to amend the proceedings, and on this state of facts, whilst presented only under cover of form, the whole question of the status of this woman from the date of her marriage in form had to be considered. Now, I have to deal as briefly as I can with the argument which was addressed to us on this head by Mr. Samuels and Mr. Cooper, to which argument I cannot at all accede. In addition to the claim for money had and received, an amended claim was put in, based (and suggested, I should think) by one of the defences, which also has to be referred to owing to the form of the decree pronounced by the King’s Bench Division. In paragraph 12 of the defence, the defendant says:—“Prior to the date of the marriage between the plaintiff and the defendant the plaintiff was informed by the defendant that the defendant’s sister was, under the will of the defendant’s father, entitled to a charge of £400 as her portion upon the farms of the defendant; and upon the treaty for the marriage between the plaintiff and the defendant it was agreed between the plaintiff and the defendant that the said portion of £400 payable to defendant’s sister should be paid to the defendant’s sister and discharged out of the sum of £475, the plaintiff’s marriage portion; and the said portion of £400 was, to the knowledge of the plaintiff, and in pursuance of the said agreement, paid by the defendant to the defendant’s sister out of the said respective sums of £375 and £100, when the same were paid by the plaintiff to the defendant.” Now, it is an undoubted fact that the £400 of these moneys was applied to discharge the incumbrance on the defendant’s farm, and from the time at which it was so discharged he was enabled to hold the farm free of that charge, so far as his sister was concerned, by reason of his having obtained the dowry of the plaintiff, and he applied the dowry in pursuance of the pre-marriage contract in payment off of his sister’s charge. Accordingly, it was contended, in view of the case so presented, viz.—that the £400 fortune, being earmarked in respect of this charge, and having been applied in relieving the lands of the defendant from that charge, that under ordinary principles of equity she was not confined to a mere decree for the recovery of the money, but that she could follow the moneys into the lands, and claim to have a specific charge on them in respect of her dowry. The judgment of Mr. Justice Kenny states—“I give judgment for the defendant with costs, holding …” [His Lordship then read the findings of Mr. Justice Kenny, set out above.] The main thing, however, is that he has found as a fact, and the evidence fully justifies it, that this £400 was, by arrangement or agreement before the marriage, intended to be applied, and was applied, to payment of this charge. Again, I think that no one whose mind is not disturbed by supposed abstract legal principles, would regard that as a bar to the plaintiff’s right to recover, but rather ought to facilitate her—which is my view. It certainly would be a singular thing if, not only having paid her money, and you can see that money in the form of an unincumbered farm—it is immaterial whether the £400 was the full value of the farm or not—that the defendant should be in a better position to carry off this poor woman’s dowry because it has gone into a farm, to be worked by him for profit, and she gets nothing. In my mind, it enhances her case instead of detracting from it. I do not attach any importance to the early cases in the Year Books, with which we were strongly pressed; but it is interesting to note that even so many centuries ago the consciences of our Courts enabled the woman, who was deprived of her chattel property under such circumstances as these, to get it back if the marriage was null. After all these centuries I cannot conceive that there has been a retrogression in this matter of doing justice in the procedure and powers of our Courts. The method of describing a marriage of this kind, though quite appreciable in the case of ordinary contracts, when adopted in the case of marriage contracts, is in a way not calculated to avoid a certain confusion of ideas. In the case of *151 A. v. A. (L. R. 19 Ch. Div. 403), sued as B., the President of the Probate and Matrimonial Division in Ireland, at page 410 of the report, states—“According to the law administered in this Court, the fact of impotency makes the marriage ceremony voidable (Bury’s Case, 5 Rep. 99; A. v. B., L. R. 1 Pr. Div. 559; W. v. R., 1 Pr. Div. 405), and not void; and it was argued that a man cannot avoid this voidable contract by reason of his own infirmity.” When you use the expression void and voidable with regard to ordinary contracts you use it in a sense that is well settled by our law, and well appreciated, but to use it in the manner in which Mr. Samuels sought to use it in the present case with regard to the marriage contract leads, in a certain measure, to confusion, and to obscure the real position of affairs. Now, the position of a marriage of this kind is shortly and clearly laid down by Lord Cranworth in the case of Lewis (falsely called Hayward) v. Hayward, in 35 L. J. Prob., at page 109: “As we are to make a precedent in this case, I should rather recommend your Lordships not only to reverse the decree which has been made, but to decree that the marriage was absolutely null and void ab initio.” The following minute of order was made: “It is ordered and adjudged by the Lords Spiritual and Temporal in Parliament assembled that the said judgment, decree or order of the Court for Divorce and Matrimonial Causes of the 21st March, 1865, complained of in the said appeal, be and the same is hereby reversed; and it is declared that the said marriage celebrated between the respondent, John Edward Hayward, and the appellant was null and void ab initio. And it is further ordered that cause be remitted back to the Court for Divorce and Matrimonial Causes to do further therein as shall be just and consistent with this declaration and judgment.” Now, when the decree is pronounced, that the marriage is null and void ab initio cannot be seriously disputed. I do not know how the present short form of decree arose. The decree which was the regular form of decree pronounced by the Matrimonial Court down to 1887, is printed in the case of A. v. B., and it states that “the judge, having heard counsel on behalf of the petitioner and respondent respectively, by his final decree pronounced and declared that the marriage in fact had been solemnised on the 30th January, 1884, at the Church of, &c., between the petitioner and the respondent, was and is absolutely null and void, to all intents and purposes in the law whatsoever, by reason of the incurable impotency of the said —, the petitioner, and that the said petitioner was. and is, free from all bond of marriage with the said respondent; and did further order that the petitioner do pay to the respondent her costs properly and necessarily incurred in this cause, when same shall have been taxed and ascertained.” The form here is slightly different, but in substance it is the same. [His Lordship read the decree.] It carefully describes it as a form of marriage, and a form only it was, and nothing else, but as a marriage used in the only sense that the word can be used, from the moment the decree was pronounced it was null and void, ab initio. Now, we were pressed in this way: that in consequence of its having been described as voidable and not void, that all the principles which apply to contracts, such as those tainted by fraud, voidable at the will of one party to the contract, and void contracts, apply. It is clear that in describing exactly the position of a marriage of this kind in the ordinary language applicable to contracts, Courts and text-writers have found great difficulty. In the case of G. (the husband) v. M. (the wife), 10 App. Cases 171, so much relied upon by Mr. Samuels, the expression is used by Lord Selborne in his speech that a person cannot approbate and reprobate a marriage of this kind, and, of course, the power of approbation and reprobation depends on the contract having some validity. If the thing is absolutely void, it can neither be reprobated nor approbated. The true meaning of the decision is found in the judgment of Lord Selborne, at page 186, dealing with the question of “sincerity,” where he says: “I think I can perceive that the real basis of reasoning which underlies that phraseology is this, and nothing more than this—that there may be conduct on the part of the person seeking the remedy which ought to stop that person from having it, as, for instance, any act from which the inference ought to be drawn that during the antecedent time the party has, with a knowledge of the facts and of the law, approbated the marriage which he or she seeks to get rid of, or has taken advantages and derived benefits from the matrimonial relations which it would be unfair and inequitable to permit him or her after having received them to treat as if no such relation had ever existed.” If a person who has gone through a ceremony of marriage, primâ facie a good marriage, chooses to come to Court to have it declared never to have been a marriage—to be null and void—the Court will consider the conduct of the person seeking the aid of the Court, and may on general principles refuse to permit that person to obtain *152 the decree of nullity. It is recognised and presumed, as far as the public are concerned, to be a good marriage until it is set aside absolutely. But, as between the parties, once the Court considers that the woman seeking relief has not done anything to prevent her obtaining it, and pronounces the full decree declaring it to be a form only, it is absolutely void from the time it was made. We must look to the real position of the parties and the real effect of the decree. Did this woman pay her fortune of £475 for a form of marriage? The thing is ludicrous. To use the words of Lord Fitzgerald: “The contract contains by implication as an essential term the capacity for consummation.” Of course, in the case of old people entering into the contract, knowing that it never can be consummated, the Courts may not grant relief. But once the Court grants relief there is no further question in it. Even if this were a contract which, according to the technical forms applicable to ordinary contracts, was voidable as distinct from void, I should have thought there was a total failure of consideration here. Because, you cannot split up the consideration. The dominant real consideration, the essential term of the contract, is the marriage, and when the husband cannot fulfil that, is it to be a case in which you are to inquire how much of the fortune was paid for consortium and how much for the honeymoon and other expenses? In my view, there was a total failure of consideration. Once you arrive at the form of the decree by which the marriage is null and void as a marriage it cannot be said that the law is in this ludicrous position—that there must be an inquiry before the Chief Clerk or Master to ascertain how much of the dowry was paid for this, that or the other thing. The vital and only purpose for which the woman paid her money has failed. But even if the case were looked at from the point of view of other considerations, this woman gave her services to this man, and managed his house for him. She gave as much as he gave in that direction. She put up with an intolerable condition of things for six years, which alone would entitle her to some sympathy. I absolutely decline to consider as a serious proposition the idea that this woman is not, under these circumstances, to get back every penny of her money; and in my judgment, our law would be in a ridiculous condition if it were otherwise. Now, when this woman instituted her action she had, of course, entered into a de facto marriage, and so affairs continued, so far as decrees of the Court were concerned, until the date of the pronouncement of the decree of nullity, in May, 1915. But once the decree of the Court was pronounced, no matter by what name she described herself in the writ, she was, and is, an unmarried woman, whose real name was, and is, Mary Anne McDonnell. But it was said that behind the form of amending the writ from one name to the other there is a substance, because she occupied the status of a married woman from the date of the issue of the writ down to the date of the order amending, and from the order amending she occupies a different status. Consequently, it is a different action, and you are turning one cause of action into another. In my opinion, that contention is unsound, and should not be acceded to. At the time she brought the action describing herself as Price, she was in truth and in fact a feme sole. She continued to be such down to the close of the proceedings and down to judgment, and our procedure since the Judicature Act is free from mere technicality in this matter of description of parties. She is the same party, and her rights are the same. True, she could not put this in evidence until the decree was pronounced, but once pronounced she was entitled to be treated by the Court as an unmarried woman, and to come to the Court to assert her rights as such.

Ronan and Molony, L.JJ., delivered concurring judgments.

Representation
Solicitor for the plaintiff: Laurence J. Ryan.
Solicitor for the defendant: Allen H. Morgan.
Reported by Hugh J. McCann, Barrister-at-Law.

Judgments of the King’s Bench Division.
Madden, J.—The plaintiff’s claim to relief in this action arises under the following circumstances:—On the 15th February, 1909, a marriage was solemnised between her and the defendant, and they lived together for several years. On the 13th January, 1915, the plaintiff presented a petition to this Court to have this marriage annulled on the ground of the impotency of the defendant, and on the 11th May, 1915, the form of marriage between the plaintiff and the defendant was declared to be null and void, and a divorce a vinculo was granted to the plaintiff. It was proved at the trial that the plaintiff’s fortune was the sum of £475, provided by her brothers, and that this sum was paid to the defendant in anticipation and in consideration of the intended marriage. The sum of £400, portion of this £475, was applied by the defendant in paying off a charge of £400 affecting the farm of which he was owner, which had been created by the will of his father. The defendant says he applied the balance of this sum of £475 to his own purposes, including, of course, the maintenance of the house in which he and the plaintiff were living together up to the time at which she had taken proceedings to have the marriage declared void. In the present action the wife having obtained a divorce a vinculo on the ground that no valid marriage was ever contracted, seeks to recover from the husband money advanced to him in anticipation and in consideration of a marriage which did not take *153 place. The right of the wife to recover her dowry under such circumstances has been recognised from an early period. In Dyer’s Reports (13a) we find a case to the following effect:—A man gives certain goods with his daughter to one in marriage, and then they were divorced, the question was whether the wife should have the goods back. It was held reasonable that she should have them, for the goods were given in advancement of her marriage and cessante causa cessat effectus. “So that the wife shall have back the goods not spent.” The proposition laid down by the case reported in Dyer was applied by Sir John Bigham when President of the Probate and Matrimonial Division in Joseph v. Joseph (1909) Probate Division 217. There, a sum of money, the dowry of an intended wife, was handed to the intended husband, and in accordance with a custom in the Jewish community lodged in a bank in their joint names. An application for return of dowry was made to the court. It was treated as akin to an application for variation of settlement. The matter was referred to the Registrar. He found that upon the facts proved a sum of £400 handed to the husband and lodged in the joint names of husband and wife should be paid to the petitioner, the wife, for her sole and absolute property, and the President confirmed the report of the Registrar and made an order in accordance with it. The material facts were that this £400 was the dowry of the wife, and that it had been advanced on her behalf in contemplation of the intended marriage. Two cheques for £25 each were handed to the husband on the day of the wedding, and the Registrar accepted the husband’s evidence that the money was advanced for and spent in the expenses of the honeymoon. It is said that no precedent can be found in the books of an action at law for the recovery of the wife’s dowry after a decree of divorce a vinculo and also that no jurisdiction, such as that exercised by Sir J. Bigham in Joseph v. Joseph, is vested in any Irish Court. In order to deal with these questions it is necessary to trace the devolution of the jurisdiction in matrimonial matters from the Ecclesiastical Tribunals to the existing court in England and Ireland.

The Ecclesiastical Court in England when granting a divorce a vinculo exercised a jurisdiction over the husband’s property to the extent of ordering the restitution of the wife’s dowry. In the clear and concise statement of the law in Vol. 2, Bright’s Husband and Wife, p. 364, the writer, after pointing out that disposition of property may hold good after divorce, says of the wife—“As for the rest, which consists of money, she shall sue in the spiritual courts and prohibition does not lie.” The principle on which a suit for return of dower was cognisable in the Ecclesiastical Courts is thus stated in Vol. 3, Burn’s Ecclesiastical Law, 389—“Where the principal matters belonged to the cognisance of the Spiritual Court all matters incidental (though otherwise of a temporal nature) are also cognisable there, and no prohibition will lie provided they proceed in the trial of such temporal incidents according to the rules of the temporal law.” The principal matter was the divorce a vinculo ; the restitution of the wife’s dower was a temporal matter incidental thereto, and so long as the Courts proceeded on the principal of the common law as laid down in the case reported in Dyer, no prohibition would be granted. When the divorced wife could obtain relief in the Ecclesiastical Court it was not necessary for her to bring an action at law for the recovery of her dower. But the right to bring such an action has been clearly recognised. The case reported in Dyer was an action at common law. In Bright’s Husband and Wife at page 365 it is stated that the divorced wife can recover in an action of detinue property alienated under the collusive pretence of gift while husband and wife were living together.

The jurisdiction of the Ecclesiastical Courts in cases of nullity of marriage was vested in the court for divorce and matrimonial causes established in England by 20 & 21 Vict., c. 85. By an amending Act, 22 & 23 Vict., c. 61, certain provisions, as regards property and rectification of settlements which were by the principal Act vested in the court were extended to cases of nullity. Under the 5th section the court has power, after a final decree of nullity of marriage, to enquire into the existence of ante-nuptial or post-nuptial settlements, and to make such order with reference to the application of the settled property for the benefit of the parties interested as to the court shall seem meet. It was under this statute that Sir J. Bigham, giving to the word “settlement” a meaning which would include the disposition of the wife’s property in the present case, made the order in the case of Joseph v. Joseph. This statutable jurisdiction was in subtitution for that exercised by the Ecclesiastical tribunals, and this consideration narrows the period of time during which a wife would be compelled to proceed at law for restitution of dower to two years. Although this court does not possses the special statutory jurisdiction conferred on the English court for divorce and matrimonial causes, the legal principles upon which Sir J. Bigham acted in Joseph v. Joseph are equally applicable to an action at law for return of dower where money was paid to a husband in anticipation of a marriage which did not take place. These principles are that the woman is entitled to a return of property which can be shown to represent her dower, and that the court will not open up concluded matters which took place when husband and wife were living together, such as expenditure upon the expense of a honeymoon; principles both of which appear to be plainly applicable to the present case.

In Ireland the jurisdiction of the Ecclesiastical Courts in matrimonial matters, including suits of nullity of marriage, was, after the disestablishment of the Irish Church, vested in the court created by the Matrimonial Causes and Marriage Act, 1870. The jurisdiction so transferred is now vested in this court. By the 13th section it was enacted that the court was to proceed on principles and rules which should be as nearly as possible conformable to the principles and rules on which the Ecclesiastical Courts had acted. I am not in a position to state whether the Ecclesiastical Courts in Ireland at any time entertained an application by a wife who had obtained a divorce a vinculo for restitution of dower. But it is clear that no such jurisdiction is exercisable by this court. No such legislation as that contained in 22 & 23 Vict., c. 61, was passed for Ireland, and the wife’s rights can only be enforced by a suitable proceeding in the High Court of Justice.

I now proceed to consider the grounds of defence to this action on which Mr. Samuels relies. The marriage in the present case was not absolutely void, as in the case of a marriage void on the ground of consanguinity. When an essential con *154 dition of marriage is absent by reason of the incompetence of one of the parties, the person aggrieved may obtain a decree declaring the form of marriage which was entered into to be null and void. The plaintiff, if she had thought fit, “might,” in the words of Sir J. Hannen, “have remained a wife enjoying all the advantages of a wife save that of marital intercourse”: Turner v. Thompson, 13 Prob. Div. 37. But the marriage being voidable at her option the decree obtained by her is declaratory to the fact that no marriage ever took place. The decree in a case of nullity does not dissolve an existing marriage on the ground of facts which have come into existence after the contract was entered into, such as the adultery of the wife. Power to decree a divorce a vinculo on grounds such as this was conferred on the English Matrimonial Court by the statute of 1857. The decree in the present case declares the form of marriage between the parties to be a nullity on the grounds of facts existing when it was entered into, and a thing declared to be a nullity cannot constitute valuable consideration for a disposition of property; ex nihilo nihil fit.

In support of the proposition that a voidable marriage followed by cohabitation can constitute a good consideration for anti-nuptial disposition of property, Mr. Samuels relies on the cases of Dunbar v. Dunbar (1909), 2 Ch. 639, and Turner v. Thompson, 13 Prob. Div. 37. The former of these cases, Dunbar v. Dunbar, is a case in which a completed and executed transaction effected while the parties live together is uneffected by a subsequent divorce. The husband purchased a house under circumstances which would raise a presumption that it was intended as an advancement for his wife. The wife obtained a divorce in a suit of nullity of marriage. In a suit subsequently instituted by the wife, Warrington J., held that the doctrine of advancement applied. At the time of the purchase “they were living together, and there was nothing whatever that I can see to lead the court to suppose that the presumed intention in this case was different to the presumed intention in any other case where a purchase is made in the name of the wife.” In Turner v. Thompson the question was one of domicil. The marriage was a voidable one, and was ultimately annulled on the ground of the incompetence of the husband. The wife was by origin a British subject. After the marriage she went to America and lived there with her husband, and was domiciled in the United States. It was held by Sir J. Hannan that she had taken up the domicil of her husband. “She had the intention of taking up her permanent abode with him, and of making his country her permanent home.” These cases are illustrations and applications of the settled principle that things executed and concluded while the parties live together have effect after divorce, and will not be disturbed. They do not assist the defendant’s case further than as regards the sum of £75 expended while the parties were living together. They afford no defence as regards the charge of £400 by which the wife’s money paid to the defendant in anticipation of marriage is now represented. With respect to a divorce a vinculo it is laid down in Brooke that things executed, where the husband is seized in right of the wife, shall not be avoided by divorce as “waste.”“Receipt of rent, seisin of ward, presentment to a benefice, gifts of goods of the wife.” Mr. Samuels suggested that the payment off of the sister’s charge might under these words hold good as a gift of the wife’s money. These words plainly apply to a gift after marriage. The payment of the sister’s charge was not a gift of the wife’s goods, but an application of her money in contemplation of a marriage. This action in its original form was for the recovery of £475 money received by the defendant for the use of the plaintiff. As the case proceeded it became apparent that the form of action which was applicable to the facts of the case, as proved in evidence, was an application to the equitable jurisdiction which is now vested in this court for a declaration that the plaintiff is entitled to stand in the place of the defendant’s sister in regard to the charge for £400, which was paid by means of money which was the plaintiff’s property, and which she is legally entitled to recover from the defendant. The statement of claim has been amended accordingly, and Mr. Samuels is to be taken as having pleaded to the amended statement of claim any defence which the facts of the case would sustain.

If a valid marriage had taken place the titles to this money and to the farm on which it was charged would have been vested in the defendant, and in that state of facts, in the absence of evidence to the contrary, it would be presumed that the charge had been paid off with the intention of merging it in the interest in his farm, inasmuch as, on this assumption, the defendant was owner of both. In such a case the equitable presumption of merger is founded on the absence of the interest in keeping the charge alive, which exists where the incumbrance is paid off by the owner of a limited interest in the land charged. To act upon this presumption as against an interest which has arisen in consequence of the failure of the owner of the land to effect the consideration for which he obtained the money to pay off the charge would be in my opinion contrary to the first principles of equity. The money by which the charge was paid off and the charge in which it was invested became on the dissolution of the marriage the property of the wife, and there is as little difficulty in pursuing the money so invested under the equitable jurisdiction vested in this court as there was in the case of Joseph v. Joseph (ubi supra) under the statutable powers conferred on the English court.

The judgment dissolving the marriage was given on the 11th May, 1915. The writ in this action was issued on the 2nd February obviously to prevent a defence founded on the Statute of Limitations. The plaintiff’s case in that she was feme sole at the date of the issuing of the writ. When the case came on for trial she was in a position to prove this, for the decree which she obtained is conclusive evidence against the world that she never was a feme couvert, and the plaintiff is in my opinion entitled to judgment for the sum of £400, and also to a declaration that she is entitled to stand in the place of the owner of the charge of £400 paid off by her money, and that the said charge is a good and valid charge as against the interest of the defendant in the farm. As regards the sum of £75 paid to and expended by the defendant while the plaintiff lived with him as his wife, this is a concluded transaction which ought not to be now disturbed.

Boyd and Dodd, JJ., concurred.

AR v DR

[2019] IEHC 246 (29 March 2019)

JUDGMENT of Ms. Justice Reynolds delivered on the 29th day of March, 2019
Introduction
1. In the within proceedings, the petitioner seeks a decree of nullity in respect of the marriage entered into by the parties in 1995 within this jurisdiction. The proceedings were commenced in 2013 and served on the respondent in early 2014.
Background
2. The parties, both of whom are Irish citizens, met in 1993 when they were both residing in New York, USA. After the marriage, they continued to reside in New York for a number of years before returning to Ireland in 1998.

3. There are two children of the marriage, X, born in 1997 and Y junior, born in 2001.

4. In 2008, the marriage between the parties broke down and they commenced living separate and apart. The petitioner left the family home with the dependent children of the marriage at that time.

5. The parties were granted a decree of judicial separation by order of the Circuit Court made in July 2011 which provided, inter alia , as follows:-

(a) joint custody of the dependent children of the marriage;
(b) the children to reside primarily with the respondent, and

(c) access to the petitioner.

Both parties were legally represented in those proceedings.
6. The petitioner subsequently re-entered the judicial separation proceedings for the purpose of obtaining an order for the attachment and committal of the respondent for failing to comply with the access order. That application was unsuccessful and the petitioner thereafter brought judicial review proceedings in that regard.

7. In the interim, the within nullity proceedings were commenced and served on the respondent in 2014.

8. Further, divorce proceedings were issued in the Circuit Court by the respondent. Those proceedings were stayed pending the outcome of the within application.
The Nullity Proceedings
9. The petitioner sets out the grounds upon which she seeks the decree of nullity in the Petition as follows:

(a) The respondent subjected the petitioner to duress to the extent that their marriage took place without her consent, that is, without the full, free exercise of her independent will, and that
(b) The respondent lacked the capacity to enter into and sustain a caring and considerate marital relationship.

10. In his Answer, the respondent denies that he subjected the petitioner to any duress and further denies that he lacked the capacity to enter into and sustain a caring and considerate marital relationship. In addition, the respondent claims that:
(a) The petitioner is estopped from claiming nullity as she approbated the marriage by her conduct and acceptance of the validity of the marriage in the judicial separation proceedings and;
(b) there was delay in bringing the within proceedings, such that it would be unjust and inequitable to grant the decree of nullity sought.

11. In 2014, the High Court made an order, inter alia , fixing the issues to be tried in the following terms:
(a) Whether the respondent at any time before or on the 5th day of July 1995, the date of the alleged marriage the subject of these nullity proceedings, subjected the petitioner to duress to the extent that she lacked consent to the said marriage, not having exercised a full, free and independent will on her part.
(b) Whether the respondent at the time of and subsequent to the said marriage lacked a capacity to enter into and sustain a caring and considerate marriage relationship.

(c) Whether the petitioner gave true consent to the alleged marriage to the respondent.

(d) Whether there is collusion or connivance between the respondent and the petitioner in the presentation of this petition.

12. In addition, an order was made appointing Dr. Julie Hurley, Consultant Psychiatrist as Medical Inspector in the proceedings. Dr. Hurley subsequently prepared two reports dated the 10th February, 2015 and 7th July, 2015, consequent upon interviews with both parties.
13. When the matter came on for hearing on the 11th October, 2017 it became clear that a number of legal issues would be required to be determined in the context of the within proceedings, which were subsequently identified and agreed between the parties as follows:

(1) “Whether in nullity proceedings, a marriage to be void can be ratified or approbated by a party to that marriage such that the marriage is rendered valid.
(2) Whether a petitioner for nullity can be estopped from seeking a decree of nullity in respect of a marriage alleged to be void.

(3) Whether delay in bringing proceedings is a bar to seeking a declaration of nullity in respect of a marriage claimed to be void.

(4) Whether the petitioner herein is barred from seeking a decree of nullity in these proceedings by virtue of the grant of a decree of judicial separation in respect of the marriage and/or her participation in those judicial separation proceedings.”

14. The parties agreed to prepare and indeed the court has received very extensive and helpful legal submissions in respect of the legal issues identified.
15. The matter proceeded to a full hearing wherein the court heard evidence from the parties, the medical inspector and two additional witnesses called by petitioner.
The Law
16. Historically, nullity was the only option available to married couples who wanted to be released from their marital obligations. Since the enactment of the divorce legislation in 1996 however, such applications have become something of a rarity.

17. A decree of nullity is defined by the Family Law Act 1995 as a decree granted by a court declaring a marriage to be null and void. This means that the marriage is regarded as never having existed in law.

18. The law distinguishes between marriages which are void or voidable. For a marriage to be deemed void or voidable, it has to fall under very specific grounds and since the introduction of divorce in 1996, the courts have interpreted these grounds more narrowly.

19. In order for a marriage to be deemed void, one of the following grounds must be met:

(a) the existence of a prior subsisting marriage;
(b) the non-age of either party;

(c) the non-observance of certain formalities required by law;

(d) the absence of consent whether by reason of duress or lack of certain information;

(e) The parties falling within the prohibited degrees of relationship.

20. In order for a marriage to be deemed voidable, one of the following two grounds must be met:
(a) the inability of either party to consummate the marriage; and
(b) the inability of either party to enter into and sustain a normal marital relationship.

21. As already stated, the grounds upon which the petitioner herein seeks relief are two fold, namely, duress and inability on the respondent’s behalf to enter into and sustain a normal marital relationship.
The Petitioner’s Case
22. The petitioner’s evidence was that she felt under considerable pressure to marry the respondent after he had pursued her vigorously and sought to isolate her from her family and friends during their courtship. She contends that he has a very forceful personality and that she was easily manipulated and outwitted by him.

23. The parties became engaged in 1994, some nine months after they had commenced their relationship. The petitioner maintains that she felt pressurised by the respondent into agreeing to his proposal. Further, she maintains that after the ceremony of marriage on the 5th July, 1995, she was approached by one of the respondent’s friends who allegedly intimated to her that his friends had always assumed that he was homosexual. She contends that whilst she was astounded by this remark, she now believes that it in fact may be true, or “that he is, rather, bisexual”.

24. In addition to these allegations, the petitioner maintains that the respondent was violent and volatile during the course of the marriage and suggests that the respondent had a “very disturbed childhood”.

25. She makes numerous allegations of mental, emotional and physical abuse which allegedly occurred post the birth of the parties’ daughter in 1997 and continued up to 2008 when the parties separated. It is clear from her evidence that she is aggrieved by the fact that the respondent secured custody of the dependent children of the marriage in the course of the judicial separation proceedings.

26. The petitioner has not only maintained the within proceedings but also initiated proceedings to have the children of the marriage taken into Wardship and “into the temporary care of the HSE, pending the hearing of the within application”. The petitioner was unsuccessful in this regard.

27. In relation to the delay in bringing the within application, the petitioner stated that she gave a full history of her marriage to her legal team at the time of the judicial separation proceedings and was not advised of the option of seeking a nullity. It was only after some discussion with a legal academic sometime after those proceedings had been determined that she became aware of the legal basis for a nullity application and felt entitled to pursue such a claim.

28. The petitioner called her sister as a witness in the proceedings to give evidence of an incident which occurred in 1994 involving a dispute between the parties herein, the witness and her husband. There is no issue between the parties but that this was a very heated dispute which got out of hand culminating in the involvement of the New York Police Department. When it was suggested to the petitioner in cross-examination that both she and the respondent were subsequently prosecuted and thereafter bound to the peace, she indicated that she had no recollection in that regard and did not appear to be in a position to refute this.

29. A further witness was called by the petitioner who was her former employer in 2005. It is difficult to see how his evidence could in any way assist the court as it was limited to commentary on events in 2005, in circumstances where it is accepted by the parties that their relationship had become turbulent and fractious at that stage.
The Medical Evidence
30. Dr. Hurley prepared two reports in this matter, one in respect of the petitioner and one in respect of the respondent. Clearly, the purpose of the reports was to establish whether or not the respondent lacked the capacity to enter into and sustain a normal marital relationship. Dr. Hurley was under the misapprehension that she was required to provide an opinion in respect of the duress aspect of this case which was understandable given that she had been provided with a copy of the order of the court setting out the issues to be tried in the proceedings. However, clearly these are issues of fact to be determined by this Court.

31. The first report recounts how the petitioner advised that she is a practising catholic and is keen to seek an annulment. She advised Dr. Hurley that she is unhappy about the fact that the respondent is the primary carer of their two children and raises issues about his fathering skills. In particular, she advised that she is unhappy that he does not take the children to Mass despite her wishes. Having elicited a history of the parties’ relationship from the petitioner, Dr. Hurley advised that possible issues may arise in relation to the respondent’s inability to engage in the contract of marriage.

32. However, it is clear that she wholeheartedly resiled from that position after she interviewed the respondent some months later and reported that there was “no evidence that he was not able to engage fully in a marital relationship despite the fact that it was turbulent and volatile”. I do not propose to regurgitate the basis upon which she reached her conclusions as they are clearly set out in her detailed report. Suffice to say that she was satisfied that neither party suffered from any psychiatric illness and there was no evidence of the respondent’s alleged inability to enter into and sustain a normal marital relationship.
The Respondent’s Case
33. The respondent resides in the former family home with the children of the marriage pursuant to the order made in the Circuit Court proceedings. The petitioner had subsequently brought proceedings to attach and commit him for failing to comply with the order in respect of access and further made complaints against him to the Garda Ombudsman and the HSE in relation to child neglect and other more serious matters, all of which allegations proved to be unfounded. In his replying affidavit, the respondent exhibits a letter dated the 16th July, 2014 from a Social Worker confirming that there were no child protection or welfare issues regarding the children.

34. In relation to the history of the parties’ courtship, the respondent recounted how the parties had been living together before he proposed to the petitioner in 1994. He denied all allegations of attempting to isolate the petitioner from her family and friends and contended that the petitioner had always had a difficult relationship with her sisters. He further alleged that it was in fact the petitioner who was herself responsible for isolating them as a couple from their friends and families.

35. Further, he stated how it was the petitioner who choose the wedding date as this was her birthday and made most of the arrangements with her family for their wedding day.

36. He strenuously denied all allegations in relation to his family background and advised that he has a loving and caring relationship with his parents and family.

37. He vehemently denied all allegations made by the petitioner in relation to his sexual orientation and maintained that she had no grounds whatsoever to make such allegations against him save and except to cause him further stress and embarrassment.

38. The respondent accepts that the parties had a difficult marriage and that they were at times violent and abusive towards each other. Matters deteriorated further after the parties separated with ongoing litigation since that time.

39. The respondent described a normal happy courtship between the parties and contends that they had a normal loving relationship at the time of their marriage, which he expected to be a marriage for life. He advised that they had made plans to have a family together and to move back to Ireland to be closer to their family and friends. Unfortunately, their relationship deteriorated over the years and he advised that in 2008 he realised that the marriage was over.
Legal Issues

Does the granting of a decree of judicial separation act as a bar to nullity proceedings?
40. Judicial separation was brought in by legislation in 1989 to give married couples, whose relationship had broken down, an accessible remedy for separation and allowed the court to make ancillary orders with regard to, inter alia , finances, children and property. The effect of a judicial separation however is merely a separation sanctioned by the court but the parties remain legally married to one another. If the parties wish to be relieved of their legal obligations to one another, a decree of divorce or a decree of nullity would have to be sought.

41. Due to the fact that the effect of a nullity decree is to render the marriage null and void, the question arises as to whether the granting of a judicial separation in of itself is a bar to the granting of a nullity.

42. In S.B. v. F.L. [2011] 1 IR 521 the applicant husband married the respondent wife in 1978 and shortly afterwards the wife discovered that the husband was transvestite. The parties separated 13 years after marrying and were granted a decree of judicial separation in 1993. In 1994, the applicant underwent gender transformation from man to woman. In 2005, he initiated divorce proceedings but the wife counterclaimed for a decree of nullity as a result of the applicant’s undisclosed transsexualism and transvestitism.

43. Abbot J. granted a decree of nullity holding that there was a lack of consent on the part of the wife due to the husband’s failure to disclose, and the wife’s consequent lack of awareness of, both his transvestitism and transsexualism.

44. It is clear that no argument was submitted to the effect that the decree of judicial separation granted 12 years prior was a bar to seeking nullity.

45. In relation to the issue of approbation, Abbot J. held that, where a case involved a lack of consent on the part of the person claiming the nullity, the question of approbation did not arise, as such lack of consent rendered the marriage void rather than voidable and a void marriage could not be approbated.
Delay in bring nullity proceedings
46. Delay in bringing proceedings for a decree of nullity is not an absolute bar to the remedy, as can be seen from a discussion of the case law below. However, the reason for the delay is vital as a long delay may give rise to an increased burden of proof on the petitioner to the extent to deprive him or her of the remedy sought.

47. In P.W. v. A.O’C . [1993] IR 324 the application was brought in 1989, 33 years after the marriage in 1956 and the respondent to the application sought to have it dismissed because of the delay in bringing it to the court. The petitioner had accepted that he had been getting legal advice in respect of the marriage since 1964 but argued that he was not informed until 1987 that he had grounds for annulment. Blaney J. accepted this explanation in circumstances where he held that it was not the conduct of the petitioner that caused the delay and that petitioner could not be blamed for the failure of his legal advisers.

48. In the S.B . case already referred to, the applicant husband argued that there was unreasonable delay in bringing the nullity proceedings. A judicial separation had been sought after the applicant husband and respondent wife learned of her husband’s transsexualism but it was after this that he went on to get gender transformation surgery, which was concealed from the respondent. In determining that the delay could only date from the obtaining of the judicial separation, the court held that:

“…any delay in seeking the annulment could only run from when the respondent found out about the gender transformation. Such delay as occurred after that date was not unreasonable as the applicant was not prejudiced by it as the ‘marriage’ was over and it would be unjust and inequitable to penalise the respondent for delay in the face of the concealment on the part of the applicant”.
49. In M.J.O.’D. v. C.D.O.’D unreported High Court, O’Hanlon J. 8th May 1992, the applicant sought an order declaring his marriage to the respondent to be null and void. He claimed that he was forced into the marriage by his family and that he was suffering from psychological incapacity and emotional immaturity to the extent that he could not give informed consent to the marriage. O’Hanlon J. rejected both grounds in light of weaknesses of character on the part of the husband preferring to “attribute the failure of the marriage to faults and weaknesses of character on the part of the husband rather than to any inherent incapacity on his part to enter into and sustain a normal marital relationship”. It was observed that the wife had been seriously prejudiced by the delay and that there was approbation of the marriage of such character as to disqualify him from being granted relief.
50. It is clear that the above case law must be viewed in the context of predating the enactment of the divorce legislation in 1996.
Can a petitioner be estopped from maintaining nullity proceedings?
51. In Gaffney v. Gaffney [1975] IR 133 the plaintiff married her husband and subsequently, on fraudulent grounds, obtained a decree dissolving the marriage from the English courts. Sometime after this, the husband died intestate and the applicant adduced evidence to say that the divorce was not valid as she and her husband were at all times domiciled in Ireland. The High Court, affirmed by the Supreme Court, held that:

“…a spouse who has obtained an invalid decree of divorce in another State is not estopped in the State of the domicile from establishing the validity of the divorce and her status as spouse, for there can be no estoppel of any kind as to whether a marriage has been validly dissolved or not.”
52. It was observed by Denham J. in C.K. v. J.K . and F.McG . [2004] 1 IR 224 that since the decision in Gaffney ,
“the prohibition on the use of estoppel in cases where marital status is relevant has been a kernel concept of Irish law.”
Though it was argued that the application of estoppel in the case would be more just, the court was very wary of the consequences of permitting estoppel to be relied upon to alter a party’s legal or family status and that the use of estoppel in marital proceedings could “give rise to anomalies and problems”.
Can a marriage purported to be void be approbated resulting in rendering it valid?
53. Approbation, or ratification, is often raised as a defence to a petition for nullity. However, in this context it is important to distinguish whether the marriage is void or voidable. Where a case involves a lack of consent on the part of the petitioner, for example, then the question of approbation does not arise, as lack of consent renders the marriage void rather than voidable, and a void marriage cannot be approbated.

54. In S.B. v. F.L . [2011] IR 521, the High Court, Abbot J., held that a void marriage could not be approbated. In so doing, Abbot J. relied on the earlier case of D. v. C . [1984] ILRM 173.

55. In dealing with the issue of approbation in the S.B. case, Abbot J. held that it

“depends on full knowledge of the facts and legal implications of the condition of the partner affected”.
It would therefore appear that whether a person may be held to have approbated a marriage depends on the assessment by the court of his knowledge of the possibility of obtaining a nullity decree and his behaviour following his first becoming aware of the position. In rejecting the defence of approbation in that case the court held that evidence amounting to approbation may include the grant of a decree of judicial separation. The judicial separation into that case however was sought in circumstances where the full nature of the transsexualism of the husband was not known to the petitioner.
56. In O.B. v. R . [1999] 4 IR 168 it was argued that the marriage had been approbated due to the petitioner seeking Social Welfare for herself and her child on the basis of being a deserted spouse. The court was of the view that this did not amount to approbation of any form.
Duress
57. In N. (orse K.) v. K . [1985] IR 733, the court recognised the requirement of full, free and informed consent to the marriage ceremony in the context of nullity. In that case, the petitioner sought nullity proceedings on the basis that she did not give consent by virtue of duress by her parents who pressurised her to marry the respondent after becoming pregnant with his child. The High Court refused to grant the relief but on appeal to the Supreme Court, it was held that:

“…consent to the making of a valid marriage must be a free exercise of the independent will of the parties. The concept of duress is not restricted to threats of physical harm or of other harmful consequences”.
58. Since that decision, the courts have adopted a broader concept of what is required in order to validate consent to marriage. The traditional concept of duress which required a fear of a threat of immediate danger to life, limb or liberty involved objective criteria so that the other party to the marriage would more often than not be aware at the time that the party under threat was not freely consenting. The concept of duress now includes more subjective feelings of coercion and lack of knowledge of certain material factors so that the other party to the marriage may be unaware of the forces operating to vitiate the apparent consent of their (apparent) spouse. In the circumstances, there is a responsibility on the party who believes themselves to have been coerced or to have entered a marriage with a material lack of knowledge to act with reasonable diligence both in seeking advice and in acting on that advice.
Inability to enter into and sustain a normal marital relationship
59. The essential question in determining whether a marriage may be declared a nullity on this ground is whether an examination of the evidence presented warrants a finding that either or both of the parties at the time of the marriage lacked the necessary capacity generally or particularly, vis-Ã -vis each other. This ground has been recognised as encompassing various physical and psychological reasons which might prevent a spouse from entering into and sustaining a normal marital relationship

60. In D. v. C . [1984] ILRM 173 Costello J. confirmed that it was possible to identify psychiatric illness, such as manic depression, which might be so severe as to impact upon the individual to prevent one of the parties from entering into and sustaining a normal marital relationship. This was the basis for the granting of relief in O’K. v. O’K . [2005] IEHC 384 where the petitioner was receiving treatment for bipolar disorder at the time of the marriage and claimed that he was incapable of entering into and sustaining a normal marital relationship by reason of a psychiatric illness. In noting the devastating effects of the illness on the petitioner, O’Higgins J. applied a subjective test and observed that:

“…existence of bipolar illness of itself does not indicate that a person has not the capacity to enter into and sustain a marital relationship. Very many people subject to the illness are capable of contracting and sustaining rich enduring marital relationships”.
61. In F.F. v. E.D ., unreported High Court Murphy J. 11th April 2003, the court dismissed a petition for annulment on the grounds that while there was medical evidence that the marital relationship was not normal because of an immature personality and a compulsion disorder on the part of the respondent, it was not of a sufficient degree as to prevent him from entering into and sustaining a normal marital relationship. Therefore, he did not believe that this was a marriage which did not exist from the beginning but was one that broke down over time.
Burden of Proof
62. In the N. (orse K.) case, the strong status of the institution of marriage was recognised where it was stated that “there is a presumption of law in favour of its validity.” Therefore, in proceedings looking to impugn the marriage, the onus is on AR to rebut this presumption.

63. More recently the Supreme Court in L.B. v. TMcC [2009] IESC 21 recognised the obligation on the courts to demand a heavy burden of proof before granting an annulment and held that:

“The Constitution imposes a clear obligation on the courts to uphold a marriage contract and it would require far stronger evidence than has been adduced in this case to satisfy me that the respondent lacked the requisite capacity to enter into a valid contract of marriage”.

Conclusions
64. In evaluating the evidence herein, this Court is mindful of the heavy burden of proof which must be discharged by the petitioner in the within application. The courts require a high standard of proof due to the protection afforded to the institution of marriage and the rarity in the granting of annulments since the introduction of divorce legislation.
65. It is clear from a consideration of the legal authorities referred to above that a decree of judicial separation in and of itself is not a bar to maintaining nullity proceedings. The parties were still legally married after the judicial separation and are therefore entitled to the benefit of maintaining divorce or nullity proceedings.

66. In respect of the delay issue, the courts have determined that whether there is a delay will depend on the particular circumstances of the case and on the petitioner’s own conduct prior to the seeking of nullity proceedings. In the instant case, the parties were married for 13 years before they separated in 2008. The parties obtained a decree of judicial separation 3 years later and a further 2 years after that, nullity proceedings were commenced by the petitioner in circumstances where she maintains that her legal advisers failed to apprise her of the legal basis for a nullity. In applying the ratio descendi in the P.W. Case , a petitioner cannot be blamed for the failure of her legal advisers, if there was such failure.

67. In respect of the issue of estoppel, the authorities clearly suggest that the doctrine of estoppel does not apply to proceedings determining matrimonial status.

68. Turning to the first ground relied upon by the petitioner in the within application, there is simply no plausible evidence upon which this Court could conclude that the respondent subjected the petitioner to duress to the extent that their marriage took place without consent on her part. The reality of the matter is that the petitioner was living as an independent young woman working in New York when she commenced her relationship with the respondent. The relationship evolved in circumstances where the parties were living together and thereafter became engaged before returning to Ireland to celebrate their wedding day with friends and family.

69. There was a paucity of evidence in respect of the petitioner’s assertion that she lacked the requisite consent to enter into the contract of marriage and the court is satisfied that the petitioner’s evidence in this regard is coloured by the subsequent deterioration and demise in the parties’ marital relationship. The court granted the petitioner some latitude in the manner in which she led her evidence in this regard in circumstances where she was representing herself in these proceedings. However, the court was faced with the insurmountable task of resolving conflicting evidence on issues which arose in the parties’ marriage over 23 years ago. Even at the height of the petitioner’s case, there was simply no sustainable evidence of duress before this Court and certainly no convincing evidence to discharge the burden of proof required.

70. Moreover, this Court is satisfied that the failure of the marriage in this case was due to the incompatibility of the parties in circumstances where the marital relationship broke down over time. It is an unfortunate reality of life that marriages break down, hence the necessity for divorce legislation.

71. The wholly unsubstantiated claims by the petitioner in respect of the respondent’s sexual orientation are utterly reprehensible. Further, the allegations pursued by the petitioner against him with the HSE, Garda Ombudsman and other State bodies were malicious and vindictive and proved to be unfounded. The petitioner has maintained a sustainedly vengeful and vitriolic campaign against the respondent since she lost custody of the dependent children of the marriage and her actions in that regard are regrettable to say the least. Her motivation in pursuing these proceedings was further fuelled by her religious beliefs and her understanding that the relief, if obtained, would assist her in pursuing a church annulment.

72. In respect of the second ground, there is simply no evidence to support the petitioner’s contention that the respondent lacked the capacity to enter into and sustain a caring and considerate marital relationship as already outlined above.

73. For the reasons aforegoing, this Court is not required to consider further the issues of approbation and delay as raised by the respondent in these proceedings.

74. Furthermore, the issue of collusion or connivance between the parties does not arise in this application.

75. In the circumstances, I will refuse the relief sought by the petitioner herein.

 

M. v M.

1978 No. 109

Supreme Court

8 October 1979

[1979] I.L.R.M. 160

HENCHY J

(Kenny and Parke JJ concurring) delivered his judgment on 8 October 1979 saying: In these proceedings the wife as petitioner applied in the High Court for a decree of nullity. The ground relied on was the non-consummation of the marriage because of the husband’s impotence. The primary questions settled by the Master of the High Court for the decision of the court on the petition were:

1. Whether the marriage between the parties was consummated or not.

2. If the marriage was not consummated, was such non-consummation due to the incapacity of the husband to consummate the marriage?

When the case came for hearing in the High Court on 9 May 1978 the wife gave full and detailed evidence to the effect that from the date of the marriage in April 1971 until she and the husband finally ceased to live together six and a half years later, in September 1977, they never succeeded in having sexual intercourse, and that this was due to the husband’s incapacity. She was corroborated by a general practitioner who gave evidence that the husband came to see him about his impotence early in 1976, and by a consultant physician to whom the husband was then referred and who, because he considered the complaint of impotence to be due to psychological factors, referred the husband to a consultant psychiatrist (who was not called as a witness, but whose medical reports were referred to). The general practitioner, who saw the wife in October 1975, gave evidence that he was of the opinion that she was still a virgin. The husband, who was in court and was represented by counsel, gave evidence in which he admitted that, notwithstanding the best efforts of the wife and himself to act on the advice and guidance given to them by the consultant psychiatrist, consummation of the marriage had never been effected, and that the failure was due to his non-physical or psychological incapacity.

There the matter stood when the evidence concluded and the judge reserved judgment. Each of the four witnesses (the wife, the husband, the general practitioner and the consultant physician) left court without any suggestion having been made that their evidence was not truthful or credible. It was not suggested to the husband or the wife that they had acted collusively in the matter before the court. Nor was it suggested to the general practitioner or the consultant *162 physician that they (or the consultant psychiatrist) had been misled into a wrong conclusion as to the husband’s impotence and, therefore, as to the non-consummation of the marriage. The judge’s note of the evidence adds up to an unrebutted and unquestioned case for the grant of a decree of nullity.

A fortnight later, however, when reserved judgment was delivered, the judge rejected the wife’s case and dismissed the petition. He said he was not satisfied that consummation had not taken place. Nor was he satisfied as to the bona fides of the parties. He said he had little doubt but that they had mutually agreed if possible to have their marriage annulled, and he considered the attitude of the husband was to assist the case made by the wife. In effect, therefore, he held that he was not satisfied that the husband and wife had not acted collusively and had not given perjured evidence.

In my judgment, having regard to the unanimity of the evidence given and the conduct of the case generally it was not open to the judge to refuse a decree of nullity for the reasons given. It is not in accordance with the proper administration of justice to cast aside the corroborated and unquestioned evidence of witnesses, still less to impute collusion or perjury to them, when they were not given any opportunity of rebutting such an accusation. To do so in this case was in effect to condemn them unheard, which is contrary to natural justice.

Having due regard to the degree of proof required to be established by a petitioner in a case such as this, I consider that a decree of nullity was the only verdict that was open on the evidence given. If the case were to be sent back to the High Court for rehearing, there is no reason to think that such a rehearing would yield any other verdict.

It is for the foregoing reasons that I concurred in the decision (which has already been announced) that this appeal should be allowed and a decree of nullity ordered on the ground that the marriage was not consummated because of the husband’s incapacity.