High Court of Ireland Decisions

F. (P.) v. O'M (G.) [1999] IEHC 2 (26th March, 1999)

BETWEEN

JUDGMENT of Mr. Justice O'Higgins delivered the 26th day of March 1999.

1. The Petitioner and Respondent went through a ceremony of marriage according to the rites of the Roman Catholic Church in County Dublin in December 1987. Following the marriage they lived together in County Dublin. They have one child who was born in September 1989. After the breakdown of the relationship proceedings for judicial separation were commenced in the Circuit Court in Dublin on 17th May, 1995. Nullity proceedings were commenced by petition dated 31st January, 1996. By Order of the Master of the High Court dated 16th October, 1996 seventeen issues were Ordered to be tried. However, in the course of the hearing it was indicated by Counsel for the Applicant that he was relying on one ground only. That ground concerned whether, in the circumstances of the case, the Petitioner gave full free and informed consent to the marriage.

THE EVIDENCE

2. Seventeen witnesses in all were called, and the case lasted over a period of eight days. A great deal of the evidence is concerned with different versions of events given by the witnesses as to matters that occurred after the marriage took place, and is directed to issues ofcredibility. In those circumstances, it is unnecessary to review in detail the evidence that has been given or analyse the marriage history at any length

3. The couple met in 1984 when P.F. was twenty and G.O'M. was twenty-one. They had a happy and relatively uneventful courtship. They commenced having sexual intercourse about six months after they met. They became engaged at Christmas of 1986 and were married in December 1987. They purchased a house in the summer of 1987.P.F. lived there and G.O'M. joined him at weekends. They were, by any standards, a very good looking couple. He was a member of a successful business family and she had an outgoing vivacious personality. The marriage was initially very happy but Mr. F. suspected a relationship betweenG.O'M. and a certain Mr. K. for whom she had worked prior to the marriage and for whom she continued to work after she became pregnant. A child was born in September 1989. It is unnecessary in these proceedings to analyse the history of the marriage as the issue in this case is to whetherG.O'M. was having an affair with Mr. K. at a time when she was engaged to Mr. F., and, if there was such an affair, whether there was full and free consent to the marriage on the part of Mr. F. It is fair to say, however, that his suspicions about her relationship with Mr. K. cast some cloud on the marriage, andG.O'M. regarded P.F. as being jealous and over-possessive. There are allegations and counter-allegations of sporadic unpleasant scenes in the marriage which G.O'M. attributed to his excessive drinking and staying out late. In 1991 they moved house to an area not far away in south County Dublin. G.O'M. says that her husband's conduct deteriorated and that he frequently came home in the early hours of the morning. However, there were good times in the marriage even then. In the month of August 1993, Mr K's wife phoned G.O'M. and Mr. F. to tell them that she suspected her husband Mr. K. was having an affair with G.O'M.. It is alleged also that she sent nasty communications to G.O'M. and to the neighbours concerning her husband's suspected adultery with G.O'M.. Around this time both parties sought medical help and G.O'M. volunteered to sever any contact with Mr. K.. However, after a successful few months, things began to deteriorate again and the relationship was stormy and unhappy. Mr. F. moved out of the marital bedroom sometime between September 1994 and January 1995 and lived in the attic. He eventually left the house in October 1995. He commenced proceedings for judicial separation in the Circuit Court in May and the grounds were, inter alia, the adultery of his wife with Mr. K..

4. The contention of the petitioner is straight forward. He claims that during the time of his engagement to G.O'M. she was involved in an affair with Mr. K.. Had he known this he would not have married G.O'M.. In the circumstances he claims that his consent to the marriage was not fully informed.

5. The Petitioner relies on five main pieces of evidence to support the allegations that he makes. They are as follows:

1. The evidence of Mr. K. (neighbour).

2. The evidence of Mr. T.

3. The evidence of Mrs. K.

4. The alleged admission by Mr. K..

5. The answer filed in the pleadings in the applications for judicial separation.

6. It should be borne in mind that all allegations of impropriety are vigorously and persistently denied by G.O'M. (subject to one matter, to which I shall refer later) and any impropriety is denied by Mr. K.. The question as to whether Mr. K. and G.O'M. were having an affair during the currency of the marriage and/or up to recent times is irrelevant to any issue which the Court has to determine save insofar as the question of credibility arise. Moreover, the allegations have to be placed in the context where the uncontradicted evidence of several witnesses is to the effect that during their engagement and up to, and for some time after the marriageG.O'M. showed every sign of being totally committed to and in love with the Petitioner in this case.

THE EVIDENCE OF MR. K (NEIGHBOUR)

7. Mr. K. was a neighbour of the parties from 1987 for a period of years. He was sub-poenaed to Court. Between June and December before the wedding he was returning from work one evening and he saw G.O'M. embracing and kissing on the mouth a man whom he subsequently identified at the wedding as being Mr. K.. He put the incident out of his mind until the wedding day. This incident is denied vehemently by both G.O'M. and Mr. K.. Because of the suggestion that it was impossible to see through the window from the location where Mr. K. was, I was invited by the parties to visit the location myself. A visit to the location confirmed that it is quite possible to see through the window as sworn to by Mr. K.. It is submitted that Mr.K.'s evidence should be disregarded because of the length of time that has elapsed since the incident alleged, the fleeting opportunity for observation and the inherent dangers involved in visual identification. Moreover, Mr. K. is a friend of the Petitioner,P.F.

8. Mr. K. impressed me as being a careful, a truthful and a slightly reluctant witness and I accept his evidence as being correct notwithstanding the caution with which I have to approach it.

THE EVIDENCE OF MR T.

9. Mr. T. lived four or five doors away from the parties from August of 1987 until 1990. His wife was expecting a child in November 1987 and most evenings he would take his dog for a walk, sometimes early in the evening or otherwise late. As he was walking on the road he noticed a gentleman who used to go into the F's house. After a few times he knew him to be Mr. K.. On one or two occasions when he was walking past the F's house, he noticed a man, whom he subsequently identified as Mr. K., coming towards him. When Mr. K. saw him he would turn around and walk back to where he had parked his car which was some distance away from the F's house. On one occasion he saw the gentleman turning around and going back into the F's house and Mrs. F received him at the door as far as Mr. T. knows. These incidents occurred from September 1987 and lasted until 1990. He knew Mr. K. prior to seeing him in there. He never saw the car parked at the driveway to the house but parked sixty to a hundredyards away. He gave evidence of seeing the car in mornings and that he adverted to it because he had seen it there on previous evenings. This occurred on occasions when Mr. F. was away. Both Mr. K. and G.O'M. deny any visits during the time in question (other than one at Christmas time when Mr. F. was present). It was suggested to Mr. T. that his evidence was incorrect and that he was motivated by bad feeling against Mr. K. because of previous business dealings. Mr. T. denied this and pointed out that on an occasion when he metG.O'M. and Mr. K. in a public house that he had an amicable conversation with them. The evidence of Mr. T. is most unlikely to be mistaken. It is either a fabrication or the truth. I believe it to be true. The evidence of stealth in parking the car away from the entrance to G. O'M's house and the evidence of the car being seen in the night-time and the following morning is suggestive of Mr. K. staying overnight and it suggestive of an affair. However, the evidence of Mr. T. does not establish on the balance of probabilities anything other than one visit prior to the date of the wedding. He merely stated that he thought the incidents started from September onwards. There is no evidence of parking the car overnight prior to the date of the wedding.

THE EVIDENCE OF MRS. K.

10. Mrs. K. was married to Mr. K. but is now separated. She blames G.O'M. for the breakdown of her marriage. It is alleged that, following the breakdown of her marriage, she made many nasty phone calls to G.O'M.. It is also alleged that she circulated hurtful material concerning G.O'M. around the neighbourhood. Furthermore, it is suggested that she sent to G.O'M. a birthday card which contained a razor blade and unpleasant comments. In default of these matters being put to Mrs. K. when she was in the witness box, it would be unfair to definitely attribute this material to her. Nevertheless it was clear from her demeanour in the witness box that she is suffering from pain and harbours animus against both her husband andG.O'M.. Her evidence has to be regarded in that light. In the course of her evidence she said that her husband had admitted that he knew G.O'M. prior to opening a health club. 'It then turned out that they had been involved for several years and he admitted that he was having an affair with her for several years before she became employed by him', 'from the time she came into their lives and destroyed them'. She said that in 1993, when confronted by her, Mr. K. admitted having an affair with G. O'M., her and led her to believe by his answers, that the affair had commenced prior to her coming into his employment in 1983.

"In 1993 I faced him with it, in August 1993, with my belief of how and why she came into our lives because he had already been having an affair with her and he admitted it to me."

11. Although both Mr. K. and G.O'M. deny any affair, I accept the uncontradicted evidence of Mrs. K. - that Mr. K. admitted an affair with G.O'M. to her. That admission does not of itself however provide satisfactory evidence as to the commencement or the duration of the said affair.

THE ALLEGED ADMISSION BY MR. K.

12. In August 1993, Mrs. K. phoned Mr. F. to raise the affair between her husband Mr. K. and G.O'M.. She had a telephone account from a hotel in America that showed that he had phoned G.O'M.'s number. She said that Mr. F. was hurt and shocked. Mr. F.'s account is somewhat different. He said he received a phone call from his wife in his office saying to expect a phone call from D.K. accusing of her, G.O'M., of having an affair with Mr. K.. Subsequently, Mrs K. phoned him. He said that Mrs. K. told him that she had proof of an affair, that she had found phone bills and photographs drawn by his son in the back seat of her husband's car and that she could smell her perfume in the car. After the phone call from Mrs. K.,P.F. had a telephone conversation with Mr. K. in which he alleges that Mr. K. admitted to the affair. There are three different versions of that conversation.

13. Mr. F. gave evidence that following the phone call he drove to Killiney beach and returned home after about an hour and a half. His son was not there and his wife was sleeping in the son's bed. He went up to her to talk to her but she said that she had nothing to say. He then went downstairs and phoned Mr. K. on his, Mr. K.'s mobile phone. The conversation went as follows. I said "this is P.F. here. Are you having an affair with my wife?" I said "for God's sake, be man enough to admit it". His reply was "I will not speak to you until I speak to your wife, G". I said, "I will get G. on the phone for you". Mr. F. said that he took the telephone from their bedroom, brought it into the son's bedroom and handed the telephone to his wife and said that Mr. K. wanted to speak to her on the telephone. He went downstairs to the T.V. room where he had made the telephone call there followed a three-way conversation in which the affair was admitted. When G.O'M. said "for God's sake, tell him the truth", Mr. K. said "yes, I am having an affair with your wife and I have always loved her and cared for her more than you have."

14. In her direct evidence, G. O'M. said that an incident took place perhaps a day or two after the contact between Mrs. K. and P.F. The telephone call was the early hours of the morning, around 3.30 to 4 o'clock, from what she could remember. Her husband rang up Mr. K. and she was woken up by the shouting and she knew it was Mr. P.F. He was really upset. He was saying "tell it to me like a man, did you have an adulterous affair with my wife?" He thrust the telephone into her hand and said "you speak to him" or something like that. She picked up the telephone and said to Mr. K. "tell him the truth". She didn't hear the response. Her husband then went to bed. In cross-examination she said it could have been 10 o'clock but she thought perhaps it was 1 o'clock in the morning. She said she didn't think it was 3.30 to 4 o'clock. She said she was awake at the time because she always stayed awake for her husband to come home. It was a gentlemanly phone call, her husband was upset and wanted to know the truth but he wasn't being abusive. While she didn't hear Mr. K's response to the allegations if something"untoward or horrendous" had been admitted to, her husband wouldn't have gone to bed. By his demeanour she presumed that he knew that Mr. K. did not have an affair with her.

15. Mr. K.'s account was that there was a conversation sometime in August but he wasn't too sure of the date. P.F. asked him about three times if he was having an affair with G.O'M. and Mr. K. told him he wasn't. Mr. K. was adamant that he had not an affair with G.O'M. and furthermore that he made this quite clear in the conversation. While he told his own Counsel that it appeared that the conversation was on the same line and that the phone was handed over from one person to another, he agreed with Mr. Durcan that there was a gap and that it was not just a question of somebody handing over the phone.

16. Mr. F. gave evidence that the day after the telephone conversation with Mr. K. he went to J. O'M., the twin sister of G.O'M., for advice and help. As a result of a conversation they had, a meeting took place in the afternoon attended by the Petitioner, the Respondent, together with her sister and her father. Different emphases were placed on the contents of the meeting. Mr. F. contends that the reason for the meeting were the allegations of adultery but the Petitioner, her father and her sister say that the allegations being made by Mrs. K. were being discounted by both the Petitioner and the Respondent, and that Mr.K.'s drinking and his wife's taking of tablets were discussed. There is no mention of the alleged admission by Mr. K.. J.O'M., the sister of the Petitioner, impressed me as being an honest witness. She said that she was not aware of any phone admission from Mr. K. when she was consulted by Mr. F. Neither was it mentioned in the evidence of her father, Mr. O'M. Had it been mentioned at the time, I believe she would have recalled it. Furthermore, I accept from her evidence that it is most unlikely that the child was with her on the night of the phone call, but he could be been somewhere else. The fact that she has no such recollection, casts serious doubts on the accuracy of the evidence of Mr. F. concerning the time of this conversation with Mr. K. and in particular as to whether it was on the same night as he received the phone call from Mrs. K.. Unfortunately Mrs. K. was not cross-examined as to the number of phone calls she made toG.O'M.. Nevertheless, while he might be mistaken as to the chronology of events, I am prepared to accept the evidence of Mr. F. on this matter as being essentially correct. While he has been inaccurate on certain matters such as the family business and the date of his knowledge of his wife's pregnancy, in my view, Mr. F. is an honest witness doing his best to tell the truth. Moreover, if his evidence were to consist of self-seeking falsehoods on this topic, it seems to me likely that he would invent an account that established an affair, not just during the marriage but at the time inissue, that is, prior to the marriage when the parties were engaged. G. O'M. , however, was not a convincing witness. I found her to be careless and self-seeking in her evidence. I cannot accept her denial that she made four phone calls to Mr. K.'s mobile phone during the months of September and October 1993. Her speculative explanations for those calls are not credible. Her explanation of the answer in the judicial separation proceedings is another instance where her evidence is manifestly unsatisfactory and cannot be accepted. Neither has Mr. K. been an impressive witness. His account of his reasons for the telephone calls from Palm Beach, and his account of the insurance details of the car, and his explanation for booking the single room in the hotel in Galway, while peripheral matters, all lack credibility. Furthermore, the fact that his wife's evidence that he admitted an affair withG.O'M. has not been contradicted by him, is significant. I therefore accept that, in conversation with P.F., Mr. K. admitted an affair with G.O'M..

THE ANSWER IN THE PLEADINGS

17. In the application for judicial separation dated the 17th May 1995, in paragraph six it is pleaded (inter alia) that "the Respondent herein has committed adultery with Mr. J.K. and has behaved in such a way towards the Applicant herein he can not longer be expected to cohabit with her". The answer at paragraph five reads as follows:-

"It is admitted that the Respondent had a relationship with J.K.. The Applicant had been acquainted with J.K. for some thirteen years. During that period the Respondent was employed by J.K. and following her resignation from his employment consequent to her marriage in 1987 this relationship continued. The Respondent has always regarded Mr. K. as an older friend and confidante and valued his experience and advice. In 1993 this friendship gave raise (sic) to serious dissension between the Respondent and the Applicant."

18. Those pleadings were settled by Counsel. It is submitted that the Respondent frequently uses the word "relationship" and that it does not necessarily mean a sexual relationship. While I accept that this may be so, these proceedings were in answer to a specific allegation of adultery in an application for judicial separation and must be viewed in that context. Moreover, in the course of the hearing, I invited the parties to call the appropriate evidence in the event of there being a misunderstanding between legal advisers and client which led to a mistake in drafting. No such evidence was forthcoming.

19. The Respondent's own explanation for the answer filed is revealing. In answering Ms. Cronin's questions concerning the answer, she said she gave her instructions to Reddy, Charlton and McKnight, Solicitors. When questioned as to what instructions she gave in response to that questions she said "In response to that question, I admitted that I had an affair with Mr. K. Because on November 10th (sic) 1994, I got excited and I did reach climax even though I had my clothes on. I perceive that as having a sexual relationship". She said she admitted what she would have considered as an affair. However, in cross-examination when Mr. Durcan asked her if, when the answer was put in on her behalf, she intended to accept that some sexual contact had taken place between herself and Mr. K., she said that "I didn't have a sexual encounter with Mr. K. on the 10th December, 1994". She previously answered the question, "did yourself and Mr. K. subsequently discuss what had taken place on that night, the fact that you had some form of sexual encounter?", "yes we did, downstairs in the kitchen". She maintained that she did not know that the answer did not deny adultery. The explanations given by the Respondent are contradictory and unconvincing. It is noteworthy that Mr. K. denies any such incident and says that he comforted her by kissing her on the cheek and embraced her. There was nothing inappropriate in his behaviour and he didn't do anything that would have caused her to become sexually excited.

20. For the purposes of the present case, whether such an incident took place is immaterial but I do not accept the incident alleged as being the reason for paragraph 5 in the answer filed on behalf of the Respondent in the matrimonial proceedings.

21. The cumulative effect of the findings of fact in relation to the five matters mentioned above lead me to the firm conclusion that the Respondent had an affair with Mr. K. before and after the marriage.

THE LAW

22. There is considerable doubt as to what the requisite standard of proof is in nullity proceedings and the matter awaits clarification by the Supreme Court in an appropriate case. The differing views have been most helpfully set out in a judgment of Budd J. in A.B. v. E.B. (1994) 2 FLR p. 36. In reaching conclusions as to the factual matters in this case, I have exercised caution and scepticism in scrutinising the evidence proffered. In my view the matters have not been proved beyond reasonable doubt but they have been proved to a higher standard than mere probability. The Petitioner has discharged 'the high but less demanding burden than that in criminal cases' adverted to in thejudgment of Denham J. in S. v. K. 1993 1 FLR 18.

23. Counsel for the Applicant submits that, as P.F. had not adequate knowledge of a circumstance of substance, to wit, the relationship of G.O'M. with Mr. K., his consent to the marriage was not an informed consent. The unchallenged evidence of P.F. is to the effect that had he known that G.O'M. was having an affair with Mr. K., he would not have consented to the marriage. I accept this evidence.

24. His further evidence was that had he been aware of a committed relationship short of a full affair between G.O'M. and Mr. K., he would not have gone ahead with the marriage as there would have been a breakdown in trust. I accept that evidence also.

25. I was referred to the case of B.J.M. v. C.M. (1996) 2 IR 575 where a nullity petition was granted on the finding that a petitioner's consent to a marriage was apparent rather than real where the respondent was lacking in candour in failing to reveal to the petitioner the extent of a disfigurement. As the petitioner was not fully aware of the details of the respondent's injuries at the time of the marriage, he was deprived of a proper election.

26. I was also referred to the transcript of evidence in the case of M.J. v. C.J. (21st February, 1991, unreported) and the ex tempore judgment of McKenzie J. therein. In that case three days after the wedding, the husband stated that he had been involved with a married woman with two children up to three weeks before the marriage, having categorically denied it up to that time. The marriage was annulled.

27. The Petitioner relies strongly on a passage in the case of M.O'N. (orse. O'C) v. B. O'C. (1996) 1 IR 208. At page 217 Blayney J. said:-

"What has to be determined, accordingly, is whether the consent of the wife was an informed consent, a consent based upon adequate knowledge, and the test is a subjective one, that is to say, that the test is whether this spouse, marrying this particular man, could be said to have had adequate knowledge of every circumstance relevant to the decision she was making, so that her consent could truly be said to be an informed one".

The case of B.J.M. v. C.M. can be distinguished from the present case. In that case a physical condition constituted an impediment to the establishment and evolution of a marital relationship between the parties. That case concerned a condition, albeit a physical one, of one of the parties. The decision in the case ofM.J. v. C.J. is of limited assistance. In that case the petition was unopposed and one of the parties was not legally represented. Furthermore, it was an ex tempore judgment delivered in circumstances where it was not necessary for the learned Judge to rise to consider his decision. Moreover, the decision is based both on the absence of true consent and because both parties lacked due discretion.

"Knowledge of every circumstance relevant to the decision" referred to in the M.O'N. (orse O'C.) v. B.O'C has to be placed within the context of that particular judgment. In my view the circumstances referred to in that judgment concerned the condition and the disposition of one of the parties, which condition was relevant to the question of informed consent to the marriage. Indeed, at page 218 of the judgment discussing whether it was a circumstance of substance, Blayney J. said:-

"Apart altogether from any question of psychiatric illness - and there was no evidence that the husband had ever suffered from such illness - a person's mental health and mental stability is obviously a matter of great importance and anything that might throw doubt upon it calls for serious consideration".

28. The circumstances must pertain to some condition, disposition or proclivity and not merely to a matter of conduct.

29. In my view, the failure to disclose factual information concerning the wilful conduct of one of the parties, is not the type of circumstance contemplated in the decision of Blayney J. The non-disclosure of inappropriate behaviour prior to or during the courtship is not a grounds for nullity. In my view, it is not incumbent on the parties to give a history of their good or bad behaviour prior to getting married in order to contract a valid marriage. In this case the parties had a courtship which lasted several years. They knew prior to getting married the nature of the contract that they were undertaking. In the circumstances I must refuse the petition on the basis that the Petitioner has failed to satisfy me that his consent was not full, free and informed. That being so, it is unnecessary to consider the other arguments advanced by the Respondent.

AB183JOH