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H. (J.W.) v. W. (G.) [1998] IEHC 33 (25th February, 1998)
THE
HIGH COURT
MATRIMONIAL
1995
29M
BETWEEN
J.W.H.
(OTHERWISE KNOWN AS W)
PETITIONER
AND
G.W.
RESPONDENT
JUDGMENT
delivered by Mr. Justice O'Higgins on the 25th day of February 1998
1. The
Petitioner went through a ceremony of marriage with the Respondent on the 27th
day of September 1986. The Petitioner seeks a decree of nullity and the
issues to be tried were fixed by Order of the Master as follows:-
1. Did
the Petitioner give her full, free and informed consent to her purported
marriage
to the Respondent?
2. Did
the Respondent give his full, free and informed consent to his purported
marriage
to the Petitioner?
3. Did
the Respondent lack the capacity to enter into and sustain a normal
life-long
functional marital relationship with the Petitioner by reason of his
state
of mind, mental condition, personality, emotional and psychological
development
at that time?
4. Did
the Petitioner lack the capacity to enter into and sustain a normal
life-long
functional marital relationship with the Respondent by reason of her
state
of mind, mental condition, personality, emotional and psychological
development
at that time?
5. Did
the Petitioner and Respondent lack the capacity to enter into and sustain a
normal
life-long functional relationship with each other by reason of their
respective
states of mind, mental conditions, personalities, emotional and
psychological
development at that time.
2. The
following facts have been proved to the satisfaction of the Court:-
* There
is no collusion between the parties and the petition is genuine. The
3. Petitioner
and the Respondent met in 1984 when the Petitioner was aged
seventeen
years and the Respondent was about 2 years older. They were both working in a
restaurant at that time.
* Early
in 1985 the Petitioner became pregnant by the Respondent. Her parents were
unhappy and her father refused to speak to her for a time. He did not like the
Respondent. He advised the Petitioner not to get married. A child,
"D"
was born on the 29th December, 1985. The parties were not then living
together
and the Petitioner was living at home with her parents who were
supportive
of her. She was very dependant on them.
* In
the summer of 1986 the parties succeeded in obtaining a Corporation house and
the house was furnished. The Respondent had lived in the house for about 5
months before the marriage. When the Petitioner told her father that they
proposed to move into the house her father was against the idea, and said that
she could not move in with the Respondent unless they got married. At that
time she was living at home and the rules of the house required her to be home
before midnight or on the last bus. When she heard of her father's attitude,
the Petitioner was upset and felt that her only option was to get married if
she and the Respondent wanted to be together. The Petitioner and the
Respondent did not attend any pre-marriage course. Her desire was that they
would be together and be a family.
* The
wedding ceremony took place in September of 1986 when the child was about nine
months old. Within a month of the marriage things started going wrong. The
Petitioner said she was unable to cope with the household bills. The
Respondent would not come home, and was also abusive to her. She continued to
work. Her husband worked on Mondays to Fridays, and she worked part-time on
Saturdays and Sundays. A second child was born in June 1989. Some time prior
to the birth of their second child, the parties moved to Ringsend into a house
of the Respondent's aunt. The Petitioner hoped that the move would enable her
to keep closer contact with her family and friends in Finglas, Finglas being
more accessible by bus from Ringsend, than from Tallaght, where the couple had
previously lived. Unfortunately, things got worse. At this stage the
Respondent was twenty-three years old. He started to play football and trained
on Tuesdays and Thursdays and played on Saturdays and spent a great deal of
time with his sporting colleagues and out of the home. The Petitioner left the
Respondent at Christmas 1989 and sought legal advice in 1992. She had been
subject to violence three or four times in the course of the marriage, and on
the last occasion the Petitioner had suffered an injured nose. The Petitioner
now has another child and is in another relationship where her present partner
does not live with her. The Petitioner has been fifteen years working at the
same job.
4. Dr.
Art O'Connor prepared a report dated 20th November, 1997 and gave evidence to
the Court. It appears from that report (a) that the Petitioner's
father
advised her not to get married, (b) that alcohol was a problem from the
beginning,
and that the Respondent would drink several times per week, (c) that there was
verbal abuse from the beginning of the marriage and that on several occasions
there was much screaming and shouting, (d) that there was very little emotional
contact or closeness between the parties in their
marriage,
and (e) according to Dr. O'Connor there was no commitment to the marriage. He
felt that the Petitioner had not thought about commitment to the
marriage,
that it was an easy way out of the home situation for the Petitioner. In his
opinion the Petitioner was probably immature. She had had a young baby. She
wanted to be free to come home after 12 o'clock at night. She was very
dependant on her parents, she married to get out of her situation, and she had
no understanding of the normal complexities of married life. Both the
5. Petitioner
and the Respondent were "
playing
at
"
being married according to
Dr.
O'Connor and he was of the view that the marriage had not got a chance
with
the two personalities involved.
6. Dr.
O'Connor expressed views as to the capacity of the Respondent. He described
the Respondent as a violent person with no commitment to the marriage, with a
drink problem, who was staying out and not coming home and said that he had
probably some personality problems and that he was probably an alcoholic. In
regard to the mental capacity of the Respondent, the Respondent was not in
Court and has not given evidence. The Respondent has not been seen or
examined by Dr. O'Connor. The only basis for the opinion of Dr. O'Connor is
the information given to him by the Petitioner at interview. In those
circumstances, while recognising the expertise of Dr. O'Connor as a
psychiatrist, the Court has to be very careful in assessing the value to be
attached to the opinion obtained in such circumstances. There was, moreover,
a difference in emphasis at least between the evidence of alcohol abuse of the
Respondent given by the Petitioner and of that told to Dr. O'Connor.
7. The
Petitioner in her evidence struck me as being an intelligent, well-balanced and
pleasant individual. The way she presents now is, however, of little
assistance in assessing her capacity at the time when she went through her
marriage ceremony.
8. I
have been referred to a number of authorities by Ms. Barron. These include
D
-v- C
1984
1 ILRM
;
N
(otherwise K) -v- K
1986
ILRM;
B
& M
,
judgment of Mr. Justice Barrington dated 27th day of March 1987;
UF
(otherwise UC ) -v- JC
1991
2 IR, (also reported
subnom
F
(otherwise C)
-v-
C
1991
ILRM;
and
PC
-v- VC
1992
IR
.
In
the case of
B
& M
,
a
nullity petition was granted on the grounds that the respondent was suffering
from "
such
a degree of emotional immaturity as to preclude the formation of a normal
marriage relationship
".
The Court answered one of the questions as follows:-
"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"
.
In
the case of
S
-v- S
1976
77 ILRM, Kenny J. in the course of his judgment said as follows:-
"The
law has always accepted impotence as a ground for avoiding 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".
In
the case of
UF
(otherwise UC) -v- JC
1992
IR, the Supreme Court accepted that statement of principle as being correct
and in the judgment of Finlay C.J. he said:-
"And
I would point out that the analogy, in my view, correctly drawn by the
learned
Judge 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".
In
the case of
PC
-v- VC
1992
IR,
O'Hanlon J. granted a petition on the ground 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".
9. I
accept it as being well settled law that the Court may grant a decree of
nullity on the basis of incapacity to enter into a marital relationship by
virtue of lack of emotional maturity as well as an incapacity by virtue of
various psychological factors. I am of the view, however, that the emotional
immaturity has to be such as would render the person quite incapable of forming
and sustaining marriage relationship.
In
N
(otherwise K) -v- K
1986
ILRM the Supreme Court granted a decree of
nullity
on the ground that the consent of the petitioner was apparent and not real
since it was caused "
by
such an amount of external pressure or influence as to lose the characteristic
of a fully free act of her will and that the wishes of her parents impinged to
such an extent on the petitioner as to negative her independence in the
question of entering into marriage".
10. Chief
Justice Finlay in the course of his judgment said at page 82:-
"Many
persons may contract marriage from motives which by others and even
by
society in general would be considered imprudent or improper. If a
decision
so reached is however truly their own decision they cannot impugn
the
marriage merely because it could be considered to have been an unwise
one.
If
however the apparent decision of marriage has been caused to such
an
extent by external pressure or influence as to loose the characteristic of a
fully
free act of that person's will, no valid marriage has occurred."
11. In
the same case Griffin J. said:-
"In
considering the affect of pressure on the will of a petitioner and whether
such
pressure vitiates the necessary consent, a subjective test must be applied
-
the test is not whether a reasonable person would have succumbed to the
pressure,
but whether the pressure alleged was such as to overbear the will
of
the
particular petitioner"
.
12. Applying
those principles to the issues in the present case the following questions are
to be answered:-
1. Did
the Petitioner give her full, free and informed consent to the purported
marriage
to the Defendant?
13. In
paragraph 6 of the petition the Petitioner says:-
"
Your
Petitioner's parents, in particular her father, insisted that she went
through
a ceremony of marriage with the Respondent and a date for marriage
was
set for the 27th September 1986 when the said infant was approximately
nine
months old"
.
14. In
her evidence in the Court, however, the Petitioner did not make that claim
15. She
said in evidence that when her father was informed (after the birth of the
child
and when she was living at home) that the couple had succeeded in
getting
a Corporation house, then the question of marriage arose. Her father
said
that there was
"no
way she would move in with him"
unless
she got
married.
From the report of Dr. O'Connor the position seemed to be
"that
he was very much against the marriage but they insisted on going ahead"
.
He aso states
"that
at the time of the marriage there was no real pressure to marry
but
she saw her other friends living with their boyfriends. She decided this was
a more convenient way to live and decided to get married because she knew her
parents would never allow her to live with G"
.
While the Petitioner was undoubtedly close to her parents and under their
influence, I am not satisfied that they exercised any pressure on the
Petitioner to get married. Her motives appear to have been a desire for more
freedom than she had at home, and a desire to set up house with the Respondent,
as well as a wish to emulate the life-style of her friends. In those
circumstances I do not think that the
evidence
sustains the proposition that she did not give her free and informed
consent
to the purported marriage.
2. Did
the Respondent give his full, free and informed consent to his purported
marriage
with the Petitioner?
16. There
is no evidence before the Court in relation to this topic and, therefore,
having
regard to the onus of proof, I cannot say that he did not give such
consent.
3. Did
the Respondent lack the capacity to enter into and sustain a normal,
life-long
functional marital relationship with the Petitioner by reason of his
state
of mind, mental condition, personality, emotional and psychological
development
at that time?
17. The
evidence in this regard is based on the opinion of the psychiatrist.
18. Because
his opinion is based on an interview with the Petitioner only, and
because
there has been no psychiatric or psychological assessments before the
19. Court
by anyone who has examined the Respondent, I am unable to attach
sufficient
weight to the opinion of Dr. O'Connor as to satisfy me sufficiently
that
the Respondent was unable to enter a marriage relationship. In so saying
I
mean no disrespect to the witness who is a respected forensic psychiatrist.
20. Furthermore,
Dr. O'Connor stated that the fact that the Respondent failed to attend for
psychiatric examination is further evidence of his state of mind. In the case
of
JC
-v- CS (otherwise CT)
,
a judgment determined on 14th day of October 1996
to
which I was also referred, Budd J. says as follows:
"Obviously
adverse comments may be made if a party refuses to attend but
this
may well be subject to a reasonable explanation".
21. It
seems to me, however, that the failure of the Respondent to attend for the
medical
examination in this case is of no real assistance in trying to gauge his
capacity
or otherwise to enter into a valid marriage in the year of 1986.
4. Did
the Petitioner lack the capacity and understanding to sustain a normal
functional
marital relationship with the Respondent by reason of her state of
mind,
mental condition and personality, emotional and a psychological
development
at that time?
22. The
facts of the matter are:
(a)
she was young,
(b)
she had a baby,
(c)
she wanted the freedom of not having to obey the house rules at her home,
(d)
she was very immature,
(e)
she did not realise the financial implications of her decision to get married,
(f)
there was no great communication between the Petitioner and the Respondent,
(g)
she was anxious to have the life-style of her friends, and
(h)
she and the Respondent were, as Dr. O'Connor put it,
"playing
at house"
.
23. In
my view, while all these factors boded ill for the success of the
marriage,
I cannot accept that at the time of the marriage the Petitioner was
incapable
of forming a lasting marital relationship. There is no
evidence
of any psychological abnormality or lack of intelligence in this case,
and
I am not satisfied that the emotional immaturity, which was undoubtedly
present,
was such as would preclude the Petitioner from contracting a valid
marriage.
5. The
final question to be answered is did the Petitioner and the Respondent lack the
capacity to enter into and sustain a normal life-long functional relationship
with each other by reason of their respective states of mind, mental
conditions, personalities, emotional and psychological development at that
time?
24. Because
of my view that the Petitioner did not lack the requisite capacity, and
because
it has not been shown to the satisfaction of the Court that the Respondent
lacked such capacity, I cannot find the evidence presented before the Court to
justify a finding that the Petitioner and the Respondent lacked the capacity to
enter into and sustain a normal life-long functional relationship with each
other by reason of the factors mentioned in issue 5 of the petition.
25. It
is apparent from the evidence before me that there were a number of factors
which made a happy and successful marriage less likely. It is equally clear
that the marriage was not a success, and appears to have ended many years ago.
However, those facts do not warrant the granting of a nullity petition. It may
well be that some other remedy is more appropriate to the Petitioner.
Accordingly, I must refuse the petition.
© 1998 Irish High Court
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