Jersey Unreported Judgments

Matrimonial - reasons for declaring the marriage void

[2022]JRC205

Royal Court

(Samedi)

3 October 2022

Before     :

Sir Timothy Le Cocq, Bailiff, and Jurats Crill and Le Cornu

 

Advocate L. J. Glynn for the Petitioner.

Advocate B. J. Corbett for the Respondent.

Advocate D. V. Blackmore Amicus Curiae.

judgment

the bailiff:

1.        This is an application by C, brought by the Viscount in her capacity as Guardian Ad Litem, ("the Petitioner") for a declaration that her marriage to D ("the Respondent") which took place on 21 October 2017 ("the marriage") is void ab initio.

2.        The background to this matter may be simply stated:

(i)        The Petitioner has been known to Adult Social Services for a number of years and has received significant support.

(ii)       The marriage took place at the Office of the Superintendent Registrar and both the Superintendent Registrar and her staff had concerns about whether or not the Petitioner and the Respondent had capacity to enter into a marriage.  We will make reference hereunder to the evidence of the Superintendent Registrar who has both provided an affidavit to us and given oral evidence before the Court.  The evidence of the Superintendent Registrar is, in brief, that she and her staff met the Petitioner and Respondent on more than one occasion and reached the conclusion that it was appropriate for the marriage to take place;

(iii)      In October of 2019, the Minister for Health and Social Services issued an application for an order under the Capacity and Self Determination (Jersey) Law 2016 ("the Capacity Law") asking the Court to determine where the Petitioner should live, that she should have full-time support and that she should only have supervised contact with the Respondent and, finally, that she did not have capacity to consent to sexual relations; 

(iv)      There were a series of adjournments and on 7 February 2020, the Court imposed significant restrictions on the liberty of the Petitioner under the Capacity Law.  The reasons for the orders made by the Court were set out in the Judgment of the Court of 31 July 2020 (In the matter of C (Capacity) [2020] JRC 150A) and the Court under the section relating to its decision at paragraph 76 et seq, said this:

"76.  We are satisfied on the evidence that C ("the Petitioner") suffers from an impairment or disturbance in the functioning of her mind, and furthermore as far as we can see this impairment will be permanent in nature.  Furthermore we are satisfied that she does not have capacity to make decisions that fall to us to consider because she does not understand all the information relevant to the decision, she cannot retain it for a sufficient time to make a decision, and use or weigh the information accordingly.

77.  The evidence to us is clear.  We find that C does not have capacity to make decisions relating to where she resides or the matters raised within the care plan nor to consent or otherwise to substantial restrictions on her personal liberty.  We are satisfied that she is an extremely vulnerable adult who is living a haphazard and somewhat chaotic lifestyle and that she is prey to other people both financially and, potentially, sexually.

78.  We believe that the change in her accommodation from St Helier to the east of the island would be entirely in her best interests as would the creation of the regime anticipated in the care plan that would enable her to receive the support and protection that in our judgment she needs.

79.  We accept on the evidence that C understands the mechanics of sexual intercourse and that sexual intercourse can give rise to pregnancy.  We do not, however, find that she has sufficient understanding of the possibilities of contraception, and of the possibilities of sexually transmitted diseases.  Nor do we think that she understands in any meaningful way the requirement for consent and her right and ability to say no to unwanted sexual intercourse.  We are struck by the way she characterises sexual activity, her numerous allegations of rape and her refusal to engage in any way with discussions about sex with the professionals who are there to support her.  It seems to us to be clear that enormous efforts have been made to engage with her in this respect, and indeed with regard to other matters of importance within this case, but she has simply been unable or unwilling to do so.

80.  Accordingly we find that C lacks capacity to consent to sexual intercourse.

81.  In our view of the evidence in the round, she also lacks capacity generally in determining who she should socialise with.  She is, as we have indicated, extremely vulnerable."

(v)       During the hearing that gave rise to that Judgment the Court heard from Dr Simon Prangnell who also prepared a report and gave evidence in connection with the instant application.  We will refer to Dr Prangnell's evidence below.

(vi)      Following the grant of the significant restriction of liberty order there was some contact between the Petitioner and the Respondent but ultimately the Respondent instigated divorce proceedings on the basis that the Petitioner was of unsound mind.  That petition was not accepted by the Family Court.  A nullity petition was prepared but not filed.  The Respondent filed a further petition in June 2021, on the basis that the parties had lived apart for two years and the Viscount was appointed to act as the Petitioner's Guardian Ad Litem to protect her interests.  The Viscount has previously held the role of the Petitioner's delegate.

(vii)     In early October 2021, the Respondent contacted his advocate to say he no longer wished to be divorced.  Curiously this was at approximately the same time that the Petitioner informed Dr Prangnell that she no longer wanted to be married to the Respondent. 

(viii)    The Respondent's existing petition was accordingly withdrawn by consent and the present petition for nullity was issued. 

3.        Two questions accordingly fall to be determined by the Court.  The first question is, did the Petitioner have mental capacity to enter into the marriage?  The second question is, if the Petitioner did not have capacity to do so, is the marriage thereby, void ab inito or merely voidable?

Superintendent Registrar

4.        We had the benefit of an affidavit from the Superintendent Registrar ("Mrs Follain") of 26 October 2021.  She confirms that although a significant period of time had elapsed, she recalled the Petitioner and the Respondent's application for marriage.  At the time, the relevant statute did not contain express provisions addressing the issue of mental capacity but she nonetheless scrutinised applications to determine capacity. 

5.        The question of the Petitioner's and the Respondent's capacity was raised directly with her by a senior Deputy Superintendent Registrar immediately following the first meeting with the Petitioner and the Respondent at the office of the Superintendent Registrar in September 2017.  Particular concern was raised with regard to the Petitioner's capacity to marry as a result of her behaviour and demeanour.  

6.        Following that alert Mrs Follain closely monitored the application and asked for detailed file notes to be prepared.  They noted that both the Petitioner and Respondent had difficulties understanding the application process and indeed attending appointments.  The Respondent had indicated that both he and the Petitioner were dyslexic.  Mrs Follain spoke directly with the Petitioner and Respondent on two occasions particularly with a view to establishing the Petitioner's capacity to marry.  She noted them both as exhibiting unusual behaviour and that the Respondent led the meetings although he often struggled to follow the requirements.  Nonetheless the Petitioner had given Mrs Follain the impression that she understood the nature of the application she was making which was to get married to the Respondent.  She appeared enthusiastic. 

7.        Mrs Follain specifically asked the Registrar of St Helier to report back and although she recalls that there was a conversation, she does not recall its contents other than the St. Helier Registrar in question confirmed that she also considered that the Petitioner understood that she was applying to get married.

8.        Lastly, Mrs Follain raised the question of the Petitioner's capacity to marry with another delegate of the Superintendent Registrar who solemnised the marriage.  He did not raise concerns.

9.        As a result, Mrs Follain formed the view that the Petitioner and the Respondent had capacity to marry at the time.

10.      In addition to her affidavit Mrs Follain gave evidence before us.  In effect she repeated her evidence set out in her affidavit and thought that the Petitioner and Respondent potentially had learning difficulties and were below average in their behaviour and intellectual capacity.  That did not in itself give her cause for concern. 

11.      She emphasised that when the marriage was solemnised there was no test or procedure to assess capacity and she, of her own volition, sought to form an assessment in this particular case.  In response to her questions the Petitioner and Respondent would say things like "we will be living together" and "we will be husband and wife", which answers they repeated on several occasions.  In cross examination, Mrs Follain said that she did not remember who answered questions first and that she always met the Petitioner and Respondent together and never took the Petitioner to one side to explore her independent understanding.

Dr Simon Prangnell

12.      Dr Simon Prangnell ("Dr Prangnell") has had fairly extensive involvement with the Petitioner in this case and put before us four reports and one addendum report which became part of his evidence.  It was he who had given evidence in connection with the application for restrictions which had given rise to the Court's judgment in this matter cited at paragraph 2(d) above. 

13.      Dr Prangnell is a clinical neuropsychologist and a clinical psychologist and has substantial experience in undertaking capacity assessments for the purposes of assessing consent.  He was originally involved in this matter in 2018, and although he was not able to meet with the Petitioner immediately, he did so in 2021. 

14.      He used a specific tool kit designed to assess consent to marriage and used it to establish the Petitioner's understanding, what the day to day meaning of being married is and what it means to be a wife.  The Petitioner's presentation was quite variable and she would quite often resist any questions seeking to explore her understanding by saying "I do not want to talk about that".  As their conversations progressed she would lose engagement and if there was any question raised in connection with sexual intercourse that would terminate any conversation between them.  She would talk about her jewellery and other possessions.  He specifically drew our attention to certain sections in his report of 27 October 2021, where, in discussing the responses from the Petitioner he noted:

"31.  She was unable to recall how long she had known [the Respondent] before they were married.

32.  When asked whose idea it was to get married, she stated "all forced on me".  I asked who and she replied "he did".  I asked again who she was referring to and she said "[the Respondent]".

.....

34.  I explored [the Petitioner's] understanding of who could marry.  Her first response was "don't know what you mean" I gave examples including "red herrings" such as "man and a woman", a "man and a man" and a "brother and sister".  She appeared agitated and looked away.  I prompted her to reply and she said "you are not explaining it" and "I do not understand".

.................

38.  In reply to being asked whether it was okay to have sex with another person when married she stated "wouldn't want another boyfriend" and "try to get [redacted] to put me on the pill"."

15.      We also considered Dr Prangnell's addendum report of 29 March 2022.  He notes in that report concerns being raised with regard to the Petitioner's mental health and we note, in particular, that of a report made in September 2017, the doctors then assessing the Petitioner said, as quoted by Dr Prangnell:

"17.  I noted the report of the Doctor's recommendations:

"both doctors concur that there is evidence of acute mental illness.  It is apparent that there is enduring and chronic mental illness (manifested in the form of distress, anxiety and fixed delusional beliefs).  However, these symptoms are not new and have been in existence for a prolonged period"."

16.      In the opinion at the end of this report Dr Prangnell says at paragraph 18:

"18.  Having reviewed the additional records, I have not found anything that would cause me to alter my opinion that, on the balance of probabilities, [the Petitioner] lacked the capacity to consent to marrying [the Respondent] in October 2017."

17.      And then at paragraph 20 he says:

"20.  In September 2017 [the Petitioner] underwent an assessment under the Mental Health (Jersey) Law 2016, it found she was acutely mentally unwell albeit she did not meet the criteria for detention as her symptoms occurred in the context of a chronic psychotic illness.  This is notable as this assessment took place approximately 6 weeks before the wedding, and at a time when she was not taking medication for her illness.  I think there is a strong possibility that she remained unwell at the time of the wedding in October 2017."

18.      In cross-examination, Dr Prangnell confirmed that those intending to marry need a basic understanding of the status of husband and wife and that that would involve mutual support.  He had found it very hard to get the Petitioner to understand relationships and particularly sexual relationships.

The Law

19.      We begin with what is the obvious statement, that a marriage cannot be validly contracted if one or the other party lacks the capacity, including, of course, mental capacity, to enter into the marriage.  In the case of JJL v LAH [ 2004] JLR [Note 27] it was held:

"A marriage is void if either party lacks the capacity to marry the other under the law of the jurisdiction in which they were domiciled at the time of the marriage.  Under Jersey law, a marriage between a man and his father's former wife before the coming into force of the Marriage and Civil Status (Jersey) Law 2001, was void under art. 2 of the Marriage (Prohibited Degrees of Relationship) (Jersey) Law 1949.  After that date, such a marriage would be void under art 4 of the 2001 Law unless both parties were full age at the time of the marriage and the younger party had not lived as a child of the family in relation to the elder party before attaining full age."

20.      We have not had put before us authority in Jersey which deals upon the issue of capacity to marry.  We have, however, had put before us a decision of Mr Justice Mostyn in the case of NB (Applicant) and MI (Respondent) [2021] EWHC 224 (Fam) in which the learned judge considered at paragraphs 10 et seq. of his judgment the issue of capacity to marry.  He carried out a detailed analysis of the case law which we will not repeat in this judgment but he summarised the position in the following terms:

"26.  Distilling all this learning results in some straightforward propositions:

The contract of marriage is a very simple one, which does not take a high degree of intelligence to comprehend.

Marriage is status-specific not spouse-specific.

While capacity to choose to engage in sexual relations and capacity to marry normally function at an equivalent level, they do not stand and fall together, the one is not conditional on the other.

A sexual relationship is not necessary for a valid marriage.

The procreation of children is not an end of the institution of marriage.

Marriage bestows on the spouses a particular status.  It creates a union of mutual and reciprocal expectations of which the foremost is the enjoyment of each other's society, comfort and assistance.  The general end of the institution of marriage is the solace and satisfaction of man and woman.

There may be financial consequences to a marriage and following its dissolution.  But it is not of the essence of the marriage contract for the spouses to know of, let alone understand, those consequences.

Although married couples live together and love one another this is not of the essence of the marriage contract.

The wisdom of a marriage is irrelevant.

27.  Therefore, the irreducible mental requirement is that a putative spouse must have the capacity to understand, in broad terms, that marriage confers on the couple the status of a recognised union which gives rise to an expectation to share each other's society, comfort and assistance."

21.      It is also of interest to note at paragraph 101 of the judgment the Court said:

"101  In this case I am concerned with a marriage said to be invalid on the ground of lack of consent as a consequence of unsoundness of mind.  The report explains that under the then existing law such a marriage was void, not merely voidable.  This was the case under the pre-1857 ecclesiastical law which became incorporated into secular law by s.22 of the Matrimonial Causes Act 1857.  However, it was a doctrine of Canon Law, dating back to the Decretals of Pope Gregory IX in 1227, and adopted by English ecclesiastical law, that a marriage void on the ground that there was no consent at the time of the marriage ceremony could be ratified by consent voluntarily given subsequently, whereupon such consent was deemed to relate back to the time of the marriage.  Thus if no valid consent could be given at the time of the marriage in consequence of unsoundness of mind, and the marriage was therefore void, that void marriage could later be ratified following a later mental recovery.  This doctrine of ratification was acknowledged in the post-1857 secular law."

22.      We note by way of interest that Dr Prangnell was a witness in the case cited above.

23.      The Marriage and Civil Status (Jersey) Law 2001 does not explicitly provide for capacity as a pre-requisite to marriage.  However, Article 9(2) states as follows:

"Further, Article 9(2) sets out the requirements of the Superintendent Registrar in considering an application for notice to marry:

(2)       The Superintendent Registrar may request such other information or documents as he or she considers to be necessary and interview either or both of the parties to the intended marriage or any other person for the purpose of considering the application and in particular for the purpose of any of the following -

(a)       verifying the accuracy of any information provided or the authenticity of any document;

(b)       satisfying himself or herself that both parties are capable of consenting to the marriage and entering into the marriage freely; and

(c )      satisfying himself or herself whether any other ground exists for not issuing a notice of intended marriage."

24.      There is a two-stage test to determine capacity (although it does not specifically relate to capacity to marry) under Articles 3 and 5 of the Capacity Law.  Article 3 is in the following terms:

"(1) In the application of this Law -;

"(a)     a person must be assumed to have capacity, unless it is shown that the person lacks capacity in the sense given to that expression by Article 4;

(b)       a person is not to be treated (under Article 5 or otherwise) as unable to make a decision -

(i)        Unless all practicable steps to enable that person to make the decision have been taken without success; nor

(ii)       Merely because the person makes an unwise decision; and

(iii)      An act done, or a decision made, on behalf of a person lacking capacity must be done or made in the person's best interests:"

25.      Article 5 is in the following terms.  

"5.   Inability to make a decision

(1)       For the purpose of the application of Article 4(1)(a), a person is unable to make his or her own decision if he or she cannot -

(a)       understand information relevant to that decision;

(b)       retain the information for a period, however short, which is sufficient to make the decision;

(c)       use or weigh the information in making the decision; or

(d)       communicate the decision (whether by speech, sign language, or any other means).

(2)       Information relevant to a decision includes information about the reasonably foreseeable consequences of deciding one way or another, or of failing to make the decision."

26.      This is the test, so we understand, that was applied by Dr Prangnell in his assessment of the Petitioner. 

27.      The Matrimonial Causes (Jersey) Law 1949, Article 18, is in the following terms:

"18.  Decree of nullity

The court may decree the nullity of a marriage on any ground on which a marriage is by law void or voidable or on any of the following grounds, that is to say -

.........

(f)        that either party to the marriage was at the time of the marriage of unsound mind or was then suffering from mental disorder of such a kind or to such an extent as to be unfitted for marriage or subject to recurrent attacks of insanity or epilepsy;

Provided that, in the cases specified in sub-paragraphs (d), (e), (f) or (g), the court shall not grant a decree unless it is satisfied -

(i)        That the petitioner was at the time of the marriage ignorant of the facts alleged,

(ii)       That proceedings were instituted within a year from the date of the marriage, and

(iii)      That marital intercourse with the consent of the petitioner has not taken place since the discovery by the petitioner of the existence of the grounds for a decree."

28.      The Respondent argues Article 18(1)(f) is the only section of that Article that is relevant and the Court can only grant a decree if "the petitioner was unaware of her being of unsound mind at the time of the marriage, the petition was filed within a year and a day of the marriage and there has been no sexual intercourse since the Article 18(f) ground was discovered."

29.      This, so the Respondent argues, means that the Court cannot make a finding of nullity.

Decision

30.      We do not agree with the submissions of the Respondent in that respect.  Article 18(1) provides that the Court may decree the nullity of a marriage on any ground "on which a marriage is by law void or voidable or on any of the following grounds".  This necessarily means that the "following grounds" set out in sub-paragraphs (a) - (i) inclusive of Article 18(1) are not the only grounds on which a marriage may be declared void.  The pre-existing grounds are not affected.

31.      Article 18(1)(f) talks of an unsoundness of mind or mental disorder such as to render a person "unfitted for marriage".  That seems to us to be different from the issue of capacity which clearly existed as a ground for nullity and in our judgment continues to exist.

32.      Accordingly, the proviso set out in Article 18(1) does not apply as the issue of capacity is not addressed within that article. 

33.      Accordingly, in our judgment nothing in the Matrimonial Causes (Jersey) Law 1949 prevents this Court from making a declaration of nullity on any ground which existed in law, addition to those specified in Article 18 including, in our view, a lack of capacity to enter into marriage.

34.      We have weighed very carefully the evidence of both the Superintendent Registrar, which is of course contemporaneous with the marriage, and that of Dr Prangnell who is, as we have already indicated, a specialist when it comes to the assessment of capacity. 

35.      Applying the evidence to the tests set out in the Capacity Law - to which tests in Dr Prangnell's evidence was directed - we are satisfied on the balance of probabilities that the Petitioner did lack capacity to enter into her marriage with the Respondent.

36.      The Superintendent Registrar considered capacity in the absence of a statutory framework for doing so and she is to be complimented for it.  Nonetheless, we view her evidence in the light of the fact that she was simply unaware of some of the surrounding circumstances relating to the Petitioner's mental health in 2017 immediately prior to the marriage and that this may well have altered her assessment of the position.  Whether it would or would not, it was clearly in Dr Prangnell's assessment of the position that the Petitioner lacked capacity. 

37.      Having considered Dr Prangnell's evidence, it appears clear to us on the balance of probabilities that by reason of the difficulties that the Petitioner has, her vulnerabilities, and exacerbated, possibly, by her pre-existing mental condition uncontrolled by medication, this materially impacted upon her ability validly to consent to marriage. 

38.      In the circumstances in our judgment the marriage was void ab initio and we so declare.

39.      As we have indicated in this judgment our decision is made on the balance of probabilities and in reliance on our understanding as to the Petitioner's mental abilities, whether exacerbated by unmedicated illness or otherwise, prior to, during and indeed after the marriage. 

40.      We understand that many of the difficulties that the Petitioner suffers will not be susceptible to improvement over time but that may not be true of all of them and it may not be that the question of capacity to marry for this Petitioner is settled by this judgment for all time.  As to whether she may at some point in the future be said to have capacity to consent to marriage must be judged at the relevant time.

Authorities

Capacity and Self Determination (Jersey) Law 2016. 

In the matter of C (Capacity) [2020] JRC 150A. 

JJL v LAH [ 2004] JLR [Note 27]. 

NB (Applicant) and MI (Respondent) [2021] EWHC 224 (Fam). 

Marriage and Civil Status (Jersey) Law 2001. 

Matrimonial Causes (Jersey) Law 1949.