AR v DR
| Jurisdiction | Ireland |
| Judge | Ms. Justice Reynolds |
| Judgment Date | 29 March 2019 |
| Neutral Citation | [2019] IEHC 246 |
| Docket Number | [2013/45M] |
| Court | High Court |
| Date | 29 March 2019 |
[2019] IEHC 246
THE HIGH COURT
MATRIMONIAL
Reynolds J.
[2013/45M]
Marriage – Decree of nullity – Duress – Petitioner seeking a decree of nullity – Whether the respondent subjected the petitioner to duress to the extent that their marriage took place without her consent
Facts: The petitioner sought a decree of nullity in respect of the marriage entered into by the parties in 1995 within Ireland’s jurisdiction. The proceedings were commenced in 2013 and served on the respondent in early 2014. The petitioner set out the grounds upon which she sought the decree of nullity in the petition as follows: (a) the respondent subjected the petitioner to duress to the extent that their marriage took place without her consent, that is, without the full, free exercise of her independent will; and (b) the respondent lacked the capacity to enter into and sustain a caring and considerate marital relationship. In his answer, the respondent denied that he subjected the petitioner to any duress and further denied that he lacked the capacity to enter into and sustain a caring and considerate marital relationship. In addition, the respondent claimed that: (a) the petitioner was estopped from claiming nullity as she approbated the marriage by her conduct and acceptance of the validity of the marriage in the judicial separation proceedings; and (b) there was delay in bringing the proceedings, such that it would be unjust and inequitable to grant the decree of nullity sought.
Held by the High Court (Reynolds J) that there was no plausible evidence upon which it could conclude that the respondent subjected the petitioner to duress to the extent that their marriage took place without consent on her part. The Court also held that there was no evidence to support the petitioner’s contention that the respondent lacked the capacity to enter into and sustain a caring and considerate marital relationship.
Reynolds J held that she would refuse the relief sought by the petitioner.
Relief refused.
In the within proceedings, the petitioner seeks a decree of nullity in respect of the marriage entered into by the parties in 1995 within this jurisdiction. The proceedings were commenced in 2013 and served on the respondent in early 2014.
The parties, both of whom are Irish citizens, met in 1993 when they were both residing in New York, USA. After the marriage, they continued to reside in New York for a number of years before returning to Ireland in 1998.
There are two children of the marriage, X, born in 1997 and Y junior, born in 2001.
In 2008, the marriage between the parties broke down and they commenced living separate and apart. The petitioner left the family home with the dependent children of the marriage at that time.
The parties were granted a decree of judicial separation by order of the Circuit Court made in July 2011 which provided, inter alia, as follows:-
(a) joint custody of the dependent children of the marriage;
(b) the children to reside primarily with the respondent, and
(c) access to the petitioner.
Both parties were legally represented in those proceedings.
The petitioner subsequently re-entered the judicial separation proceedings for the purpose of obtaining an order for the attachment and committal of the respondent for failing to comply with the access order. That application was unsuccessful and the petitioner thereafter brought judicial review proceedings in that regard.
In the interim, the within nullity proceedings were commenced and served on the respondent in 2014.
Further, divorce proceedings were issued in the Circuit Court by the respondent. Those proceedings were stayed pending the outcome of the within application.
The petitioner sets out the grounds upon which she seeks the decree of nullity in the Petition as follows:
(a) The respondent subjected the petitioner to duress to the extent that their marriage took place without her consent, that is, without the full, free exercise of her independent will, and that
(b) The respondent lacked the capacity to enter into and sustain a caring and considerate marital relationship.
In his Answer, the respondent denies that he subjected the petitioner to any duress and further denies that he lacked the capacity to enter into and sustain a caring and considerate marital relationship. In addition, the respondent claims that:
(a) The petitioner is estopped from claiming nullity as she approbated the marriage by her conduct and acceptance of the validity of the marriage in the judicial separation proceedings and;
(b) there was delay in bringing the within proceedings, such that it would be unjust and inequitable to grant the decree of nullity sought.
In 2014, the High Court made an order, inter alia, fixing the issues to be tried in the following terms:
(a) Whether the respondent at any time before or on the 5th day of July 1995, the date of the alleged marriage the subject of these nullity proceedings, subjected the petitioner to duress to the extent that she lacked consent to the said marriage, not having exercised a full, free and independent will on her part.
(b) Whether the respondent at the time of and subsequent to the said marriage lacked a capacity to enter into and sustain a caring and considerate marriage relationship.
(c) Whether the petitioner gave true consent to the alleged marriage to the respondent.
(d) Whether there is collusion or connivance between the respondent and the petitioner in the presentation of this petition.
In addition, an order was made appointing Dr. Julie Hurley, Consultant Psychiatrist as Medical Inspector in the proceedings. Dr. Hurley subsequently prepared two reports dated the 10th February, 2015 and 7th July, 2015, consequent upon interviews with both parties.
When the matter came on for hearing on the 11th October, 2017 it became clear that a number of legal issues would be required to be determined in the context of the within proceedings, which were subsequently identified and agreed between the parties as follows:
(1) ‘Whether in nullity proceedings, a marriage to be void can be ratified or approbated by a party to that marriage such that the marriage is rendered valid.
(2) Whether a petitioner for nullity can be estopped from seeking a decree of nullity in respect of a marriage alleged to be void.
(3) Whether delay in bringing proceedings is a bar to seeking a declaration of nullity in respect of a marriage claimed to be void.
(4) Whether the petitioner herein is barred from seeking a decree of nullity in these proceedings by virtue of the grant of a decree of judicial separation in respect of the marriage and/or her participation in those judicial separation proceedings.’
The parties agreed to prepare and indeed the court has received very extensive and helpful legal submissions in respect of the legal issues identified.
The matter proceeded to a full hearing wherein the court heard evidence from the parties, the medical inspector and two additional witnesses called by petitioner.
Historically, nullity was the only option available to married couples who wanted to be released from their marital obligations. Since the enactment of the divorce legislation in 1996 however, such applications have become something of a rarity.
A decree of nullity is defined by the Family Law Act 1995 as a decree granted by a court declaring a marriage to be null and void. This means that the marriage is regarded as never having existed in law.
The law distinguishes between marriages which are void or voidable. For a marriage to be deemed void or voidable, it has to fall under very specific grounds and since the introduction of divorce in 1996, the courts have interpreted these grounds more narrowly.
In order for a marriage to be deemed void, one of the following grounds must be met:
(a) the existence of a prior subsisting marriage;
(b) the non-age of either party;
(c) the non-observance of certain formalities required by law;
(d) the absence of consent whether by reason of duress or lack of certain information;
(e) The parties falling within the prohibited degrees of relationship.
In order for a marriage to be deemed voidable, one of the following two grounds must be met:
(a) the inability of either party to consummate the marriage; and
(b) the inability of either party to enter into and sustain a normal marital relationship.
As already stated, the grounds upon which the petitioner herein seeks relief are two fold, namely, duress and inability on the respondent's behalf to enter into and sustain a normal marital relationship.
The petitioner's evidence was that she felt under considerable pressure to marry the respondent after he had pursued her vigorously and sought to isolate her from her family and friends during their courtship. She contends that he has a very forceful personality and that she was easily manipulated and outwitted by him.
The parties became engaged in 1994, some nine months after they had commenced their relationship. The petitioner maintains that she felt pressurised by the respondent into agreeing to his proposal. Further, she maintains that after the ceremony of marriage on the 5th July, 1995, she was approached by one of the respondent's friends who allegedly intimated to her that his friends had always assumed that he was homosexual. She contends that whilst she was astounded by this remark, she now believes that it in fact may be true, or ‘that he is, rather, bisexual’.
In addition to these allegations, the petitioner maintains that the respondent was violent and volatile during the course of the marriage and suggests that the respondent had a ‘very disturbed...
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