A.B. v E.B. (Nullity)

• Jurisdiction: Ireland
• Judgment Date: 01 January 1997
• Date: 01 January 1997
• Docket Number: [1991 No. 9M]
• Court: High Court

A.B. v. E.B. (Nullity)

A.B.

Petitioner

and

E.B.

Respondent

[1991 No. 9M]

High Court

Family law - Nullity - Whether persistent, abiding and permanent characteristic other than mental or psychiatric illness sufficient ground for annulment of marriage - Petitioner alleging that childhood abuse left respondent incapable of establishing adequate sexual relationship - Whether sufficient ground for annulment of marriage - Factors to be taken into account by court before granting annulment.

Family law - Nullity - Petition - Whether burden of proof balance of probabilities or more stringent standard.

The parties were married in March, 1973. Four children were born between May, 1974, and October, 1978. Around the time of the birth of the fourth child, the petitioner had formed an extra-marital relationship. Between 1981 and 1984, the parties had undergone counselling and the petitioner had abandoned the other relationship. In 1989, the petitioner had left the family home and returned to his other relationship. In 1991, he sought a decree that the marriage had been null and void and of no legal effect on the grounds that from the time of the marriage the respondent had been unable to enter into and sustain a marital relationship, and in particular a sexual relationship involving a reasonable degree of frequency of love-making. It was contended that this was due to her having been sexually abused as a child; that she had a resultant abhorrence of sexual relations and had avoided being left alone with the petitioner.

The respondent, while describing herself as sexually inhibited and not adventurous, denied that she was incapable of sustaining a marital relationship. She contended that any difficulties which had arisen with regard to sexual matters were due to the petitioner's inability to create a proper ambience for making love rather than to her childhood experiences and also that she had proved herself capable of responding sexually and emotionally when the petitioner had shown sufficient tenderness.

A consultant psychiatrist appointed by the court examined both parties in February, 1993, and concluded that neither was suffering from any recognisable psychiatric disorder. He found it probable that the respondent suffered from a degree of sexual inhibition, which, he testified, could effect up to 30% of couples. He did not believe that the respondent had suffered from a lack of maturity at the time of the marriage. He felt unable to say whether the parties could have overcome their sexual problems if they had presented for counselling at an earlier stage. Both parties agreed that the marriage had been happy apart from their sexual difficulties.

Held by Budd J., in refusing the petition, 1, that while the evidence of a consultant psychiatrist must carry considerable weight, it was for the court to come to its own conclusions.

• U.F. (orse. U.C.) v. J.C. [1991] 2 I.R. 330 and K.W.T. v. D.A.T.[1992] 2 I.R. 11applied.

2. That the analogy between impotence and an incapacity to enter into and sustain a proper marital relationship was valid not only where that incapacity arose from psychiatric or mental illness so recognised or defined, but also in cases where it arose from some other persistent, abiding and permanent characteristic of an individual's nature or personality which could not be said to be voluntary or self-induced, and notwithstanding that it was not susceptible to description in precise and clinical medical terms.

• U.F. (orse. U.C.) v. J.C. [1991] 2 I.R. 330 applied.

3. That applying the standard of the balance of probabilities, without finding it necessary to decide whether that or some more stringent test was appropriate in nullity cases, the petitioner had failed to establish that the respondent had been suffering from an inherent personality problem which, at the time of the marriage, had prevented her from having a sexual relationship with the petitioner involving a reasonable degree of quality and quantity of sexual intercourse.

Semble: That there was no reason in principle or practice why nullity suits should require a higher degree of proof than was required for the proof of other issues in civil claims.

• U.F. (orse. U.C.) v. J.C. [1991] 2 I.R. 330, N. (orse. K.) v. K.[1985] I.R. 733,Murray v. Ireland[1985] I.R. 532, Griffith v. Griffith[1944] I.R. 35, McM. v. McM. and McK. v. McK.[1936] I.R. 77, K. v. K. (Unreported, High Court, O'Keeffe P., 16th February, 1971), K. (M.) v. McC. (F.) [1982] I.L.R.M. 277,R.S.J. v. J.S.J. [1982] I.L.R.M. 263, Ussher v. Ussher [1912] 2 I.R. 445, Cuno v. Cuno (1873) 2 H.L. (S.C.) 300, C. (orse. H.) v. C.[1921] P. 399, S. v. K.(Unreported, High Court, Denham J., 2nd July, 1992) and Banco Ambrosiano s.p.a. v. Ansbacher & Co. [1987] I.L.R.M. 669 considered.

Semble: That if the court had been inclined towards a grant of nullity on the grounds put forward by the petitioner, it would also have had to take into account other factors including the monetary and other contributions made by the respondent to the family home; the fact that both parties had acted both to their detriment and to their advantage on the assumption that they were married; the lapse of time; and the existence of children.

Cases mentioned in this report:—

Banco Ambrosiano S.P.A. v. Ansbacher & Co. [1987] I.L.R.M. 669.

C. (orse. H.) v. C. [1921] P. 399; (1921) 90 I.L.T.R. 345.

Cuno v. Cuno (1873) 2 H.L. (S.C.) 300.

U.F. (orse. U.C.) v. J.C. [1991] 2 I.R. 330; [1991] I.L.R.M. 65.

Griffith v. Griffith [1944] I.R. 35; (1944) 78 I.L.T.R. 95.

R.S.J. v. J.S.J. [1982] I.L.R.M. 263.

K. v. K. (Unreported, High Court, O'Keeffe P., 16th February, 1971).

K. (M.) v. McC. (F.) [1982] I.L.R.M. 277.

McM. v. McM. and McK. v. McK. [1936] I.R. 77.

Mulhern v. Clery [1930] I.R. 649; (1930) 64 I.L.T.R. 150.

Murray v. Ireland [1985] I.R. 532; [1985] I.L.R.M. 542.

N. (orse. K.) v. K. [1985] I.R. 733; [1986] I.L.R.M. 75.

S. v. K. (Unreported, High Court, Denham J., 2nd July, 1992).

S. v. S. (Unreported, Supreme Court, 1st July, 1976).

The State (Nicolaou) v. An Bord Uchtála [1966] I.R. 567; (1966) 102 I.L.T.R. 1.

K.W.T. v. D.A.T. [1992] 2 I.R. 11.

Ussher v. Ussher [1912] 2 I.R. 445; (1912) 46 I.L.T.R. 109.

Petition.

The facts are summarised in the headnote and set out in detail in the judgment of Budd J., infra.

A petition for the annulment of the marriage was presented in the Central Office on the 19th March, 1991. By order of the Master of the High Court made on the 24th April, 1991, the petitioner was given liberty to issue a citation for service on the respondent. The citation was served on the 14th May, 1991, and an appearance entered on the 28th May, 1991.

On the 28th March, 1992, the Master of the High Court, by consent of the parties, fixed the issues to be tried (see the judgment of Budd J.) and appointed a doctor to carry out a psychiatric examination of the parties.

The petition was heard by the High Court (Budd J.) on the 15th June and the 6th, 7th, 8th and 9th July, 1993.

Cur. adv. vult.

Budd J.

This is an application by the petitioner for a decree that the marriage entered into between the petitioner and the respondent was null and void and of no legal effect.

The issues to be tried by this court are set out in the order of the Master made on the 18th March, 1992, and are as follows:—

• (1) Whether the respondent by reason of her mental capacity or state of mind was unable to understand the nature and purposes or consequences of the marriage contract?

• (2) In the alternative, whether at the time of the marriage the respondent was suffering from a disease of the mind that she was not able to sustain a normal relationship with the petitioner?

• (3) In the alternative, whether the respondent was not capable at the time of the marriage of sustaining a lasting marital relationship?

• (4) In the alternative, whether the respondent was unable to enter into or sustain a normal marital relationship by reason of incapacity arising from emotional immaturity or psychological weakness or disturbance?

Counsel for the petitioner indicated that the nub of his client's case was that the respondent's experiences as a child so scarred her personality that at the time of the marriage on the 23rd March, 1973, she was unable to enter into or sustain a normal marital relationship having special regard to their sexual relationship and in particular to a reasonable degree of frequency of sexual intimacy and intercourse.

In accordance with the order of the Master of the High Court a report on the parties was compiled by Dr. Ian D., a consultant psychiatrist, in or about February, 1993, which I will refer to subsequently. The petition was opposed.

The parties were married on the 23rd March, 1973, in a church in Dublin. The marriage was consummated and four children were born of the marriage, being a son born on the 26th May, 1974, the eldest daughter born on the 13th May, 1975, the second daughter born on the 12th May, 1977, and the youngest daughter on the 24th October, 1978. In February, 1989, the petitioner left the family home being a terraced house worth about £70,000 in Dublin. Since April, 1989, the petitioner has been living with his lady friend, whom he had met in or about 1978 and with whom he had had an intimate relationship since before 1979.

Both parties gave evidence and in my view were candid and attempted to be fair and truthful in their giving of evidence. In respect of the few areas in which there was a conflict of evidence and in particular where these related to intimate matters, I preferred the accuracy of and accepted the evidence of the respondent. I was conscious throughout the giving of the respondent's evidence of her deep sense of hurt and in the course of cross-examination I was conscious of her suppressed feeling of outrage and disbelief that the validity of her marriage could be challenged after so many years of cohabitation and...