High Court of Ireland Decisions

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:-

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:-

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.