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Cite as: [1998] IEHC 33

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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,

(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.