A.B v N.C
| Jurisdiction | Ireland |
| Judge | Mr. Justice O'Higgins |
| Judgment Date | 16 February 2006 |
| Neutral Citation | [2006] IEHC 127 |
| Docket Number | Record No. 158/CA/05 |
| Court | High Court |
| Date | 16 February 2006 |
[2006] IEHC 127
THE HIGH COURT
BETWEEN
AND
U F (ORSE U C) v J C 1991 2 IR 330
O'M (M) (ORSE O'C) v O'C (B) 1996 1 IR 208
F (P) v O'M (G) (ORSE F (G)) 2001 3 IR 1
FAMILY LAW
Nullity
Full, free and informed consent - Appeal against refusal of decree of nullity -Whether respondent by virtue of sexual orientation was capable of sustaining normal marital relationship - Whether petitioner was capable of sustaining marital relationship by reason of his mental condition - Whether failure to disclose circumstance of substance which would have influenced petitioner into entering marriage was ground for nullity - Decree of nullity refused; order of Circuit Court affirmed - (158/CA/05 - O'Higgins J - 16/2/2006) [2006] IEHC 127; 2006 5 786
B (A) v C (N)
Facts: The applicant sought to appeal a refusal of a decree of nullity made in the Circuit Court impugning the nature of the consent provided before marriage relating to the sexual orientation of the respondent. The applicant asserted that the Respondent suffered from a mental condition rendering him incapable of sustaining a life long relationship with the applicant.
Held by O’Higgins J., in refusing the decree of nullity sought, that adequate evidence had not been provided to indicated that the applicant did not give full, free and informed consent to marriage. Insufficient evidence had not been provided to suggest that the respondent was not capable of forming a life long relationship.
Reporter: E.F.
This case comes before the court by way of an order of appeal against the refusal of a decree of nullity made by His Honour Judge McDonagh in the Circuit Court on the 22nd April, 2005.
In the Family Law Civil Bill dated the 27th October, 2004, the applicant asked for an enquiry into the following issues.
a a. Whether the respondent gave full, free and informed consent to the ceremony of marriage.
b b. Whether the applicant gave full, free and informed consent to the ceremony of marriage.
c c. Whether as of the date of the said purported ceremony of marriage the respondent suffered from such state of mind, mental condition, personality disorder and/or emotional development to render him incapable of forming and sustaining a normal lifelong relationship with the applicant.
d d. Whether as of the date of the said purported ceremony of marriage the applicant suffered from such state of mind, mental condition, personality disorder and/or emotional development to render her incapable of forming and sustaining a normal lifelong relationship with the respondent.
By order of His Honour Judge McMahon (1st December, 2004) Dr. D. was appointed as medical inspector to the applicant and respondent for the purposes of preparing a report for the court. He duly furnished a report dated the 17th February, 2005. (At the behest of this Court on appeal to clarify certain matters, Dr. D. provided an addendum dated the 3rd January, 2006.) The matter came on for hearing in the Circuit Court on the 22nd day of April, 2005, at which time the applicant was represented by solicitor and counsel and the respondent appeared in person, the order reads:
"The Court not being satisfied that the Respondent is a homosexual or that at the time of the marriage the Respondent was a homosexual or at the time of Marriage the Applicant was misled. The Court Doth Refuse to Grant a Decree Nullity of the Marriage between the Applicant and Respondent solemnised on the 29th day of July, 2003, at the Registry Office, Dublin."
Notice of appeal was filed on the 28th day of April, 2005 and the case was heard in this court on 6th February, 2006.
The parties met in 1996 when the applicant was aged 29 and the respondent was aged 28. The applicant comes from a stable family. She was a clerical worker at the time she met the respondent and had her own house which she had bought with the assistance of her parents. The respondent was working in a fruit and vegetable shop at the time and was a separated man although he has since then divorced. He had been previously married when he was 18 or 19. His wife was pregnant at the time of that marriage. The marriage lasted a very short time and the evidence of the respondent was "the only reason the marriage didn't last because we both wanted different things out of life (sic). She wanted to travel so at that time I had to bring up A. as best I could." About a year after meeting the applicant and respondent moved in together. The applicant described the relationship as being "really very good" and the parties decided to have a baby. A daughter was born to the couple in 1998. The couple parted for a short period in 2001 because they were rowing. There was some friction between them at least partly due to the presence in the house of the respondent's daughter from his first marriage and the applicant asked the respondent to leave. He left the house for about two months but parties resumed living together after that. The parties lived together since 1997. The following evidence casts light on their intimate relationship.
| Q. | "And you had no reason to believe that he had any homosexual orientation?" |
| A. | "He gave me absolutely no indication whatsoever." |
| Q. | "And what was your intimate relationship like at that time? I mean in terms of your sleeping arrangements or how would you describe them over that period?" |
| A. | "Well I have never lived with anybody before, to me we were normal." |
The parties went through a marriage ceremony on the 18th July, 2003. At the end of January, 2004, the couple went to a birthday party for the applicant's brother in-law. In the course of the evening they went to the house of the applicant's sister. A row erupted between the respondent and the applicant's sister in-law. The evidence was as follows:-
| A. | "There was a row between my husband and my sister's husband and then he just told me." |
| Q. | "What did he tell you?" |
| A. | "I cant really remember what he said, his exact words what I said to him are you telling me you are a gay, whatever he said made me the penny just dropped." (sic). (She told the court that the reason that she could not remember was because of the consumption of alcohol). |
| Q. | "Had he been engaging in a relationship or do you know?" |
| A. | "He told me that he had met somebody and did I want to speak to them on the phone, and I said no I didn't want to speak to them." |
When asked whether it came as a shock to the respondent that he was interested in other men the applicant told the court:-
"I don't think it was a shock to him, no he told me that he always felt it since he was a teenager, I asked him why did he marry me then, and he thought that if he married me then it would make the feelings go away. Then he told me that all the moods he would be in were because of those feelings."
The parties separated three weeks after the incident and the relationship broke up. The applicant told the court that she would not have married the respondent had he indicated to her that he is homosexual.
"When he told me it was like he is not the same person he was a different person. It is not like the person that I loved, he was like a whole changed person even thought he looked the same, he spoke the same it wasn't him."
The applicant felt like she had been deceived, used and humiliated. The applicant cannot remember exactly the words used by the respondent indicating his sexual orientation. Her evidence was:
"I can't really remember what he said, his exact words but I just said to him are you telling me you are gay, whatever he said made me the penny just dropped." (sic).
The respondent suggested that he did not admit to being homosexual but that he was having difficulties with his sexuality and I accept his evidence on this point. The applicant...
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