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F. (G.) v. B. (J.) [2000] IEHC 112 (28th March, 2000)

THE HIGH COURT

1997 34m

BETWEEN

G.F.

PETITIONER

AND

J.B. (OTHERWISE KNOWN AS J. F.)

RESPONDENT

JUDGMENT of Mr. Justice Murphy delivered on the 28th day of March, 2000

1. On the 9th July, 1988 the marriage of the Petitioner and the Respondent herein was solominsed as Christ Church in the District of Dun Laoghaire in the County of Dublin under the authority of a special licence granted by his Grace the Lord Archbishop of Dublin DD pursuant to the Marriages (Ireland) Act, 1844.

2. By petition dated the 23rd May, 1997 the Petitioner stated, inter alia, that his consent to the marriage ceremony was not a full, free and/or informed consent; further, or in the alternative, prior to and at the date of the marriage ceremony, by reason of his emotional immaturity, mental state, personality, temperament and/or nature, the Petitioner had not the capacity to enter into or sustain a normal marital relationship with the Respondent.

3. There is one child to the marriage who was born on the 30th December, 1988. The Petitioner and the Respondent separated in or around 1993 and have not resided or cohabited together since that date. By Order of the Master of the High Court made the 25th February, 1998 the issues to be determined were listed and it was ordered that Dr. Gerry Byrne, Psychiatrist, be appointed to carry out a psychiatric rather than a physical examination of the Petitioner and also of the Respondent and to report in writing to the Court.

4. The net issues that come before the Court with consent of the parties are the following:-

1. Whether the Petitioner gave full, free and/or informed consent to the marriage ceremony with the Respondent;

2. Whether prior to and at the date of the marriage ceremony the Petitioner by reason of using (sic) emotional immaturity mental state, personality, temperament and/or nature had the capacity to enter into or sustain a normal marital relationship with the Respondent.

3. Whether the Petitioner was incapable of consenting to the marriage ceremony

5. By answer dated the 2nd March, 1998 the Respondent denies, inter alia, that the consent of the Petitioner to the marriage ceremony was not a full, free and/or informed consent;

6. The Respondent denies and awaits proof that prior to and of the date of the marriage ceremony, the Petitioner by reason of his emotional immaturity, mental state, personality, temperament and/or nature, had not the capacity to enter into and sustain a normal marital relationship with the Respondent whether for the reasons set out in the Petition or otherwise and the Respondent further denies that the said marriage ceremony was null and void and of no affect on that basis.

7. Both the Petitioner and the Respondent say that there has been no connivance or conclusion between them in any way whatsoever.

EVIDENCE

8. A preliminary issue arose regarding the presence of the medical examiner, Dr. Gerard Byrne while evidence was to be given by Dr. Brian O’Shea, Consultant Psychiatrist, in relation to his treatment of his Petitioner and of the Respondent. A further issue arose as to whether Dr. O’Shea’s evidence should be taken before that of the Petitioner.

9. I directed that, as Dr. Byrne had been appointed as Medical Inspector he was entitled to be present during the evidence given by Dr. O’Shea. I also directed that it was a matter for Counsel for the Petitioner to decide as to the order of witnesses (so long as the witness confined himself to facts rather than opinions which were not adduced in evidence.)

10. Counsel for the Respondent objected to evidence being given in relation to her client. I directed that, as Dr. O’Shea had been subpoenaed he could be required to give evidence in relation to the Respondent as well as to the Petitioner.

11. In any event the issues were narrowed to those referred to above on the second day of hearing and Dr. O’Shea did not give any evidence in relation to the treatment of the Respondent.

12. Dr. O’Shea first saw the Petitioner on the 4th July, 1986 when he presented with panic attacks in work. He came along with his mother.

13. He was then unemployed having been through five previous jobs and felt that he had wasted his life.

14. Dr. O’Shea believed that he suffered from depersonalisation and was like an antelope incapable of responding to the presence of a lion. In relationships he was possessive, with a high need to be appreciated and with the significant separation anxiety problem he required constant availability.

15. His negative feelings about himself were substantiated by observation of Dr. O’Shea.

16. He was seen by Dr. Timms, Dr. Matthews and Dr. Stokes who were part of Dr. O’Shea’s team and he agreed with her diagnosis of personality disorder and that the Petitioner was compulsively obsessive.

17. Pharmacological interventions such as antidepressants and benzodiaspines made little difference and he had a poor tolerance to Prozac.

18. The Petitioner attended Dr. O’Shea on the 16th October, 1988, three months after his marriage; he attended twice in 1989 and his last visit was on the 21st September, 1993. In 1995 there were three telephone conversations between the Petitioner and Dr. O’Shea.

19. In relation to this marriage he told Dr. O’Shea that he was being sucked into a situation that he couldn’t handle and that his wife knocked the confidence out of him and that there were fighting all the time. As time went on this was affecting their daughter.

20. In relation to his work he told Dr. O’Shea that his boss did not want him.

21. Dr. O’Shea believed that the basic problem with the Petitioner was that;

22. He was a very insecure person;

23. He suffered from anxiety and depression;

24. He had an obsessive personality disorder;

25. He suffered from separation anxiety.

26. Dr. O’Shea believed that such problems normally resolved themselves at adolescence but did not happen in the case of the Petitioner.

27. There was a disparity between the emotional development and the logical development. The Petitioner was not capable of viewing his life partner as a separate individual. There was no mutuality in the relationship. While the Petitioner had an intellectual insight into this condition he did not have control over his emotions. He was drawn by an immature set of emotions.

28. In relation to the Petitioners ability to sustain marriage, Dr. O’Shea believed that it would be extremely difficult. Problems such as those referred to above tend to erode whatever relationship there is. It would need a “perfect” partner, a mother figure who was constantly available.

29. The general impression of Dr. O’Shea is given in his report to the medical inspector as follows:-

“This very immature man suffers from a personality disorder with low self esteem, obsesionality, fantasies of being very important (by way of over compensation), with periods of anxiety and a “reactive” depression. He probably also has separation anxiety disorders. His occupational history has been rather chaotic.

I do not believe that he was capable of emotionally viewing a potential life partner as a separate individual, and as such was not capable of entering into a valid matrimonial contract.”

THE PETITIONER’S EVIDENCE

30. The Petitioner is now thirty five years of age. He feels he was denigrated by his father and developed a strong bond with his mother.

31. In relation to school he was average, drifting along and missed school staying at home when he was not feeling well.

32. At mid teens he says that the began “drinking to be drunk”. He passed the leaving certificate and without focus or without a plan, worked in shops from time to time he dispersed with unemployment.

33. When he was twenty or twenty one he went out with a student but felt uneasy with her friends and possessive of her.

34. A year later the student told him that he was pregnant and was having an abortion. This created a moral problem for him. He was distressed. His anxiety intensified. He had panic attacks. At one stage he got off the bus and felt like a rabbit caught in its headlights. He told his parents. His mother was distressed, his father seemed indifferent.

35. He agreed with Dr. O’Shea’s evidence regarded the personlisation. His feelings seemed to wash over him: he cried a lot. He drank until he was drunk, gave up work felt a bleak depression and believed he was going mad.

36. His eldest sister advised him to go to his general practitioner who referred him to Dr. O’Shea as an outpatient. He stayed at home between visits to the GP and to Dr. O’Shea. It was a long nightmare with regular crisis points weekly. He became obsessed with his depression and withdrew completely. It was a dark period.

37. By late 1987 he began work as a Salesman but was still deeply involved with his illness. He moved from home with a friend of his and met the Respondent who was living close by.

38. Within a few weeks the Respondent told him that she was pregnant. He reacted with great concern. It was a repeat disaster for him he was concerned for his mother. He was concerned for his new girlfriend. He was determined not to disturb his mother. He would have done anything to avoid that. Yet he had no long term plans.

39. He decided to tell his parents first that they were getting married and then that she was pregnant so as to bring a solution to the problem. His mother accepted that he says his father took a sneering attitude and remained distant.

40. The wedding was organised by his girlfriend’s father. He was still focused on panic attacks and depression. He had no sense of his own worth. He was detached from his wedding. He was in contact with Dr. O’Shea six times between the wedding and the birth of their baby daughter in December 1998.

41. This was the one thing that they had in common. Otherwise they almost lived separate lives.

42. The Respondent became aggressive towards him and he believed that she was absolutely not supportive of his situation. It made things ten times worse. His life was miserable. He moved continuously down to his family sometimes with his daughter.

43. In relation to work he believed he got on well with his employers in the short term but not in the long term.

44. In 1994 matters came to a head and spiralled out of control. Their daughter was deeply embroiled in the mess. He left his job.

45. He said the Respondent sought medical advice and was hospitalised for a few weeks. However this did not solve the difficulties. At Christmas of 1994 he left the family home.

46. Both the Petitioner and the Respondent are at the date of hearing in new relationships. The Petitioner has a child of his new relationship.

47. In relation to his understanding of marriage at age twenty three, the Petitioner gave evidence that he was obsessed with the idea of not walking away. He felt he was the cause of his mother’s changed behaviour.

48. He now believed his life had changed. He was improved, stronger, more self aware. Nonetheless he would not disagree with Dr. O’Shea’s evidence with regard to his prognosis.

MEDICAL INSPECTOR’S EVIDENCE

49. Dr. Gerard Byrne agreed with Dr. O’Shea’s evidence. He had heard the Petitioner's evidence.

50. Dr. Byrne believed that the diagnosis gravely affected the Petitioner's consent. The personality and psychiatric illness of a personality disorder coincided with his own view. He concurred with Dr. O’Shea’s diagnosis. The Petitioner was immature. He would go further and say that the immaturity was grose and not just abnormal immaturity.

51. Dr. Byrne believed that the Petitioner's decision to marry depended on his attitude to his parents and not to his own need. His decisions were made on a more proximate need and not on any long term basis. The Petitioner’s difficulty with his exams and his not being able to hold down jobs was caused by a personality disorder, depression, anxiety and panic attacks.

52. The medical examiner believed that the Respondent was not supportive. As he perceived it the relationship was doomed. The Petitioner would have to find a particular foil: “a perfect person”. That person would have to calm, materialistic. As he perceived it this was not the relationship that he had formed it was not conducive to his being able to cope.

53. Dr. Byrne believed that the Petitioner's parents did not force him into marriage. However the Petitioners inordinate need to please led to his decision to get married. He was immature and not able to consent.

54. No evidence was given by the Respondent nor on her behalf.

SUBMISSION OF COUNSEL

55. Counsel for the Respondent, Ms. Ann Dunne S.C., stated in relation to the Answer filed the 2nd March, 1998 that such answer was intended to take issue with allegations made in relation to the Respondents' state of mind. Since the answer was filed, the Respondent had the evidence of the medical inspector in relation to the Petitioner’s state of mind. No issue was being taken in relation to that evidence. Counsel declined to cross examine.

56. Ms. Inge Clissman S.C., for the Petitioner, submitted, as a preliminary point, that the Court had enough evidence to ground the petition on the basis of the Petitioner’s emotional immaturity, mental state, personality, in that he had not the capacity to enter into or sustain a normal marital relationship with the Respondent.

AUTHORITIES

57. Ms Clissman S.C. relied on the following authorities:

1. RSJ -v- JSJ [Unreported decision of Barrington J. 1982];

2. D -v- C [Unreported decision of Costello J. 1984];

3. N(K) -v- K [1986] IR737;

4. GM(G) -v- TG [Unreported decision of Lavan J., 22nd November, 1991];

5. UF(C) -v- C [1991] 2 IR 330 19 (1991) IRLM 65;

6. KWT -v- DAT [1992] 2 IR 11;

7. PK -v- MBM [Unreported Supreme Court decision of the 3rd April, 1995];

8. MON -v- OC [1996] 1 IR 208 at 216/7;

9. JS -v- CS [1997] 2 IR 506.

CONCLUSIONS

58. The issue before the Court is whether the contract of marriage entered into between the parties is voidable by reason of the inability of the Petitioner to enter into or sustain a normal marriage relationship.

59. This ground for nullity, first noted in the Attorney General’s Office Report entitled “The Law of Nullity in Ireland” in 1996 was accepted in 1982 by Barrington J. in RSJ -v- JSJ referred to above.

60. The leading case in relation to the matter is D -v- C, a judgment by Costello J. (unreported 1984) in which the trial Judge found that the law should have regard to the psychological relationship just as it does to the physical one. In that case it was found that the husband at the time of marriage suffering from a “cyclical manic depressive disorder...(whcih) affected personality and behaviour. (It was) significantly severe as to impair his consent to form and sustain a normal viable marriage relationship ”.

In JS -v- CS [1997] 2IR 506, Budd J. referred to the above cases and stated that the fundamental principal was, and continues to be, that the enquiry as to the validity of a marriage was more inquisitorial and less adversarial a nature than the usual case. The Court concluded that the spouse became an emotional disability or incapacity or an inherent quality or characteristic at the time was marriage was unable to enter into and sustain a normal marital relationship.

61. Budd J. referred to the difficulty a Court has in moving from the cold objectivity of ascertainable clinical findings to the elusive and impalpable area of the emotions. An illness that is preventing a spouse from “entering into a caring or even considerate relationship” (per Barrington J.) or sustaining the normal interpersonal relationship which marriage requires (per Costello J.) depends on the objective findings of the medical examiner and not on the subjective perception of the Petitioner.

62. This is not to say that the paramount importance of the evidence of the medical inspector is decisive. The role of the Court, as asserted by Murphy J. in KWT -v- DAT [1992] 2IR 11 at pg. 21 is instructive;

“.... At the end of the day it seems to me that I cannot abdicate my function to the experts, however distinguished, and even though they are, in the present case, in agreement on the point that the parties to marriage did not have an adequate emotional capacity to sustain the relationship of marriage.”

63. The only evidence before the Court relating to the validity of this marriage is the certificate of a solemnised marriage duly witnesses and recorded.

64. The evidence of Dr. O’Shea and of Dr. Byrne, the medical inspector appointed by the Court, is that the Petitioner did not have an adequate emotional capacity to enter into or sustain a normal marital relationship with the Respondent.

65. It would appear also that because of that the Petitioner was not fully free in his mind or fully informed to consent to the marriage ceremony with the Respondent.

66. Accordingly the Court decrees that the ceremony of marriage celebrated on the 9th July, 1988 between the Petitioner and the Respondent is null and void and that the said Petitioner is free of all bonds of marriage with the said Respondent.

67. I will hear the parties regarding the costs of and incidental to this petition.