OB (petitioner) v R (respondent); OB (notice party).
Family Law - Marriage - Nullity - Grounds for obtaining decree - Nature of consent required - Time at which parties state of mind to be ascertained - Whether seeking maintenance and social welfare constitutes approbation.
Criminal Law - Bigamy - Basis for prosecution - Whether papers should be sent to the DPP - Offences Against the Person Act 1861, section 57 - Criminal Law Act 1997, section 3.
The High Court (before Mr Justice Kinlen); judgment delivered 20 July 1999.
IN determining whether a marriage is void ab initio because of the inability of the petitioner to enter into a meaningful life long commitment, the court will have regard to all the facts, in so far as they can be ascertained, at the time of the marriage. Mr Justice Kinlen so held in granting a decree of nullity.
Inge Clissmann SC and Deirdre Kennedy BL for the petitioner; the respondent was not represented; David McGrath SC and Dervla Browne BL for the notice party.
MR JUSTICE KINLEN, setting out the facts of the case, stated that the petitioner was 17, and pregnant by the respondent, who was 20, at the time they got married. Both parties were extremely distant and ill formed at the time they entered the marriage. The petitioner was, at the time of her marriage, a pregnant child who was ignorant, naive and alone. She did not understand fully that marriage was supposed to be for life but saw it simply as a solution to a problem at the time. She felt that she was forced into marriage, her parents made it clear that she had to get married. They believed that if she wanted to keep the baby she had to marry, and they reinforced the idea that she had brought shame on the family and they refused to help her.
The petitioner and the respondent virtually lived apart, the respondent was liable to be violent to her and there was no communication. The petitioner managed to get a part time job and left the respondent after about two years, when she had enough money saved. She also brought up the child without any input from the respondent.
The petitioner applied for a papal annulment eight years after the wedding in which application she was assisted by the notice party. Afterwards the petitioner and the notice party married but this relationship had also broken up. The petitioner's application for a civil annulment at this time, nearly 30 years later, was due to a much later realisation that a papal annulment did not change her status in civil law, and her wish to have her status and the status of her subsequent marriage and family clarified.
The respondent, who was unrepresented, attended the trial but took no active part in it. The notice party was represented by senior and junior counsel and a detailed legal submission was made on his behalf.
Counsel for the petitioner raised various queries, firstly, whether the petitioner and respondent were in such a state of mind that, at the date of their purported marriage, neither was able to understand fully the nature of the marriage contract and were, therefore, unable to give a full, free and informed consent to the said ceremony of marriage, thereby rendering the purported marriage void; and secondly, whether the petitioner was induced by duress to enter into the said ceremony of marriage in this way rendering the purported marriage void. Mr Justice Kinlen held that a full, free and informed consent to marry was essential for a valid marriage, see N (otherwise K) v K [1985] IR 733. It was the petitioner's contention that, at the time of the marriage, by reason of their age in very difficult circumstances including an unplanned pregnancy, parental disapproval, naivety and fear they did not see any viable alternative to marrying. The petitioner placed reliance on N (otherwise K) v K (the facts of which were similar to the present case), in which the then Chief Justice, Mr Justisce Finlay held, at page 742, that where an apparent decision to marry had been caused to such an extent by external pressure or influence, whether falsely or honestly applied, as to lose the character of a fully free act of that person's will, no valid marriage would have occurred; Mr Justice Griffin stated, at page 751, that a subjective test must be applied the test was 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.
The question arose as to whether the petitioner and the respondent because of their respective states of minds, mental conditions and personalities, were unable to enter into and sustain, a normal, functional, lifelong marital relationship with one another. It was the petitioner's contention that at the time of the marriage she and the respondent were, by reason of their youth and immaturity, constitutionally unable to enter into and sustain a normal marital relationship. The petitioner was unable to cope with the relationship and extracted herself from her situation as soon as she had enough money to do so. The evidence showed the respondent as a young man who had no commitment or sense of responsibility towards his wife and child and who was saved from facing the problems of his marriage through absence, alcohol, other women and a threat of violence.
The petitioner cited, inter alia, UF (otherwise UC) v JC [1991] 2 IR 330, in which Mr Justice Finlay, at page 356, confirmed that such incapacity would be due, not only to psychiatric or mental illness so recognised or defined, but also in cases where it arose from some inherent quality or characteristic of an individual's nature or personality which would not be said to be voluntary or self-induced.
Mr Justice Kinlen stated that there was undoubtedly a heavy burden of proof on a petitioner to establish that a marriage was null and void and that it was for the trial judge to determine whether the parties' marriage was a nullity. As marriage was protected by the Constitution it was important that the courts exercised a particular caution and scepticism in scrutinising the evidence proffered.
There was psychiatric evidence that the petitioner and the respondent were immature, however it was not of a sufficient degree as to warrant a decree of nullity. At the same time the petitioner was very young and very ignorant about the facts of life. She was faced with a difficult choice and had no support from friends or parents to help her make her choice. In fact, the parents were not merely unhelpful but they did not show her the love and affection she probably needed at a time of great emotional distress and indeed they seemed to have rejected her. It was possible that by marrying she hoped to win back their affection. While each of these items, in itself, might well be insufficient to justify an annulment, having heard all the evidence, Mr Justice Kinlen was firmly of the opinion that, at the crucial time, the petitioner was not capable of making a full and totally free and informed decision.
Despite some judgments to the contrary, Mr Justice Kinlen was of the view that one must look at the condition of the parties at the time they entered into the contract and not what may have emerged later. In these circumstances the court would normally grant nullity in this case; however, a number of other matters arose in the course of the trial.
Firstly, the notice party argued that the petitioner had unreasonably delayed in seeking to obtain an annulment of her marriage to the respondent, and that she had approbated the said marriage, despite having sought and obtained the church nullity, by seeking maintenance and social welfare payments on the basis of being a deserted spouse and single parent, which claims continued after the church annulment and her purported marriage to the notice party. Mr Justice Kinlen held that while she did seek legal advice regarding maintenance and about the respondent having any claim to her property, in the particular circumstances of the case relief should not be refused on the grounds of delay. Applying for social welfare support for herself and her child was not, in the circumstances of this case, any form of approbation.
The court pointed out that the second marriage was possibly bigamous and that while it must consider whether or not to impound the papers and send them to the DPP, it was anxious not to take this step if it could be avoided. The court raised the issue of whether section 57 of the Offences Against the Person Act 1861, under which the crime of bigamy was to be punished at the discretion of the court, was in full force and effect; it was accepted by all counsel appearing in the case that it was. The court also raised the rule in Smith v Selwyn [1914] 3 KB 98, which provided that no civil remedy could be pursued by the victim of a crime which amounted to a felony when the criminal had not been prosecuted. In Carlisle v Orr [1917] 2 IR 534, it was held that before a party injured by any felonious act could seek civil redress for it, the matter should be heard and disposed of before the proper criminal tribunal. The Supreme Court, in Dillon v Dunnes Stores Limited [1966] IR 397, implicitly accepted the rule. While section 3 of the Criminal Law Act 1997 abolished the distinction between felonies and misdemeanours, the relevant facts in this case arose prior to the passing of the Act, and the section was clearly not retrospective.
Mr Justice Kinlen stated that, for the reasons already given, this was an appropriate case to grant nullity, and since there was no direct financial damage Mr Justice Kinlen held, with doubt, that it was not necessary to report the matter to the Garda. The original purported marriage was void ab initio and therefore could not be the basis of a bigamy prosecution in itself. Mr Justice Kinlen went on to state that there were authorities for the proposition that the invalidity of the second marriage would negative the crime of bigamy and for the proposition that the invalidity of the second marriage was immaterial.
Mr Justice Kinlen concluded that the marriage was void ab initio because of the inability of the petitioner to enter into a meaningful lifelong commitment. The court must have regard to all the facts, in so far as they could be ascertained, that existed at the time of the first marriage. The question of reporting to the Garda did not arise because there was no question of material loss, therefore it probably did not come within the rule in Smith v Selwyn. In view of the confusion that existed in relation to the crime of bigamy, Mr Justice Kinlen did not propose sending this to the DPP, although, of course, he was a totally independent officer so it was not appropriate for this court to direct him in what he should or should not do.
Solicitors: Muredach Doherty (Dublin) for the petitioner; Julian Deale & Co. (Dublin) for the notice party.
