The Supreme Court yesterday refused to grant a decree of nullity to a man who claimed his wife was having an affair immediately before their marriage which continued after the marriage. The man had claimed that, in those circumstances, he had not given free and informed consent to marriage.
In a judgment expected to have implications for other cases, Ms Justice McGuinness, giving the decision of the three judge court, upheld a High Court decision that the failure to disclose inappropriate behaviour before or during courtship is not a ground for nullity.
The introduction of a ground for nullity which, taken to its logical conclusion, could 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 41.3 of the Constitution, which provided that the State should "guard with special care" the institution of marriage, she said.
Ms Justice McGuinness said one could not fail to sympathise with the position of the husband. But he had a remedy and already had taken proceedings for judicial separation, she said.
She added that it would "surely be desirable" in today's circumstances, where remedies of divorce and judicial separation are available, for the Oireachtas to "turn its mind to providing a clear statutory code setting out both the grounds for nullity and its ancillary consequences both for the parties and for any possible children."
In the High Court, Mr Justice O'Higgins had noted that the couple had a courtship lasting several years and knew the nature of the contract they were undertaking. They were married some eight years but now live apart. They have one child.
Mr Justice O'Higgins found it was not incumbent on parties to give a history of their good and bad behaviour before getting married in order to contract a valid marriage.
Agreeing with that conclusion, Ms Justice McGuinness noted that, historically in both Irish and English law a clear distinction has been drawn between duress, which vitiated consent and was a ground for nullity, and fraud, misrepresentation or mistake, none of which was a ground for nullity.
She said the High Court judge had found on the evidence that the wife had carried on a sexual relationship with another man immediately before her marriage and had committed adultery with the same man after her marriage. She had denied the allegations.
Adultery is a ground for judicial separation and has traditionally been a ground for divorce in other jurisdictions, Ms Justice McGuinness said, but has never been a ground for nullity. She said there was no suggestion in other judgments relied on by the parties that the husband should have been fully informed about either the conduct or the character of his wife-to-be before their marriage.
She added that the courts have always stressed the necessity for certainty in marriage. This was reinforced by Article 41.3 of the Constitution which stated: "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 court consisting of Mr Justice Murray, Ms Justice McGuinness and Mr Justice Geoghegan, dismissed the man's appeal against the High Court decision.
