B(O) v R & B(O)

JurisdictionIreland
JudgeMr. Justice Kinlen.
Judgment Date20 July 1999
Neutral Citation[1999] IEHC 186
CourtHigh Court
Date20 July 1999

[1999] IEHC 186

THE HIGH COURT

1998 No. 62M
B(O) v. R & B(O)
RE:
O.B.
R.(RESPONDENT)

AND

O.B.
(NOTICE PARTY)

Citations:

N (ORSE K) V K 1985 IR 733

B (ORSE O'R) V O'R 1991 1 IR 289

W (ORSE C) V C 1989 IR 696

O'M (ORSE O'C) V O'C 1996 1 IR 208

GM (ORSE G) V GT UNREP LAVAN 22.11.1991 1992/3/704

O'C V O'C 1994 2 FAM LJ 55

C (A) (ORSE J) V J(P) 1995 2 IR 253

O'R V B 1995 2 ILRM 57

C (B) V O'F (ORSE C) UNREP MORRIS 25.11.1994 1995/1/306

C (D) V M (ORSE C) 1997 2 IR 218

F (ORSE C ) V C (J) 1991 2 IR 330

C (D) (ORSE W) V W (D) 1987 ILRM 58

C (P) V C (V) 1990 2 IR 91

USHER V USHER 1912 2 IR 445

PEOPLE V HUNT 1946 80 ILTR 19 (NOTED ONLY)

AG, PEOPLE V BALLINS (ORSE KENNY) 1964 IJ 14

LEE "CANON & CIVIL MARRIAGE LAWS IN IRELAND" 1946 IRISH ECCLESIASTICAL RECORD (NO 67) 154

OFFENCES AGAINST THE PERSON ACT 1861 S57

WINFIELD TEXTBOOK ON THE LAW OF TORT 4ED 163

SMITH V SELWYN 1914 3 KB 98

CARLISLE V ORR 1917 2 IR 534

DILLON V DUNNES STORES LTD 1966 IR 397

STONE V MARSH 6 B & C 551

CRIMINAL LAW ACT 1997 S3

CRIMINAL LAW BILL 1996 EXPLANATORY MEMORANDUM

AMN V JPC 1988 ILRM 170

MCG V W UNREP MCGUINNESS 14.1.1999

UNDERHILL ON TORTS (1932) 25

CUNO V CUNO 1873 2 HL 300

W (S) V R (T) 164 ER 36

POVEYS CASE, IN RE 1 DEARS CR CAS 32

GRAHAMS CASE, IN RE 2 LEWIN 97

R V FANNING 17 IR CL 289

R V GRIFFIN 1879 14 COX CC 308, 4 LRI 497

R V BRAWN 1843 1 CAR KIT 44

R V ROBINSON 1938 1 AER 301

R V ROBINSON 1935 8 GR APPR 29

R V ALLEN 1872 1 LR CCR 367

Synopsis

Family Law

Nullity; criminal; bigamy; canon law; an annulment had been granted to the parties; petitioner had remarried after annulment; remarriage was prior to the passing of the Criminal Law Act, 1997; whether the petitioner and respondent were in such a state of mind that at the date of their purported marriage neither was able fully to understand the nature of the marriage contract and was, therefore, unable to give a full, free and informed consent, thereby rendering the purported marriage void; whether the petitioner was induced by duress to enter into the marriage, in this way rendering the purported marriage void; whether there was a voluntary consent on the part of the petitioner; whether the petitioner and the respondent were unable to enter into and sustain a normal marital relationship; whether there was unreasonable delay on the part of the petitioner in seeking to obtain an annulment; whether the petitioner had approbated the marriage by seeking a Church annulment, by seeking maintenance and by seeking social welfare payments on the ground of being a deserted spouse; whether the petitioner's second marriage was bigamous; whether the court should support a civil claim where there is evidence of a felony when the mattter has neither been reported to the gardaí nor prosecuted; whether s.3, Criminal Law Act, 1997 which abolishes the distinction between felonies and misdemeanours, is retrospective.

Held: Petition granted; petitioner was not capable of making a full, free and informed decision; applying for social welfare does not amount to approbation; s.3 not retrospective; the issue of reporting to the gardaí did not arise as there was no question of material loss.

O'B. v. R.- High Court: Kinlen J. - 20/07/1999 - [1999] 4 IR 168 - [2000] 1 ILRM 306

The Petitioner and Respondent were married according to the rites of the Roman Catholic Church in 1970. The marriage was occasioned by the pregnancy of the petitioner who was then seventeen years of age and who was advised by friends and family that she had no other option if she wished to keep the child. The history of that marriage was an unhappy one, in which the Respondent had at least six children by other women and the Petitioner received little or no support from her family. The Petitioner obtained a papal annulment in 1977 and subsequently married the Third/Notice Party, without having obtained a State annulment. This relationship subsequently broke down. In 1998, the Petitioner applied for a State annulment in respect of the marriage between the Petitioner and Respondent. Petition for an Order of Nullity granted.

1

Delivered on the 20thday of July. 1999 by Mr. Justice Kinlen.

2

The Petitioner in this suit was born on 1lth August, 1952. The Respondent was born on 27th March, 1950. They were married according to the rites of the Roman Catholic Church on 19th April, 1970. The Petitioner was over 17 years of age and the Respondent was just over 20. Before marriage, the Petitioner became pregnant by the Respondent. She did not realise what had happened (i.e. getting sick every morning and her periods had stopped). She had got no sexual education and her parents gave her no practical support or advice. Her husband was her first boyfriend. She was going out for about five or six weeks with him when she became pregnant. His boyfriend's sister took her to Holies Street Hospital where she was diagnosed as being pregnant. Her sister suggested that she could (a) have an abortion; (b) have the child in England and put it up for adoption; or (c) marry the Respondent.

3

She was afraid to tell her parents. She was aware of the terrible shame brought on her family. When she eventually told her parents, they did not want her married in a local church so they went to a church run by a religious order. According to the psychiatrist she knew that the only option available to her if she wanted to keep the baby was to marry. His parents allowed her to come into their house for about two weeks after the baby was born. Basically, she had to deal with this very frightening and difficult situation by herself. The baby was born and is now 26 years of age. He is well and independent. Both parties were extremely distant and ill-informed when entering the marriage. He was a heavy drinker. The marriage was "terrible from the beginning". The Respondent was always out with his friends drinking. He was unemployed. She got a part-time job and saved some money. She left him after two years. They had sex after marriage on only a couple of occasions. The sex was always problematic. He continued having affairs with other women. He apparently had at least six children from these affairs. She did not understand fully that marriage was supposed to be for life. She saw it simply as a solution to a problem at the time. She felt that she had no way out. She felt that she was forced into the marriage. Her parents made it clear that she had to get married. They refused generally to communicate with her or to help her. She was a pregnant child who was ignorant, naive and alone. The question is whether she was able to enter into and sustain a normal marital relationship because of her youth, lack of sexual education, immaturity and social pressures and because of an unwanted pregnancy. Her husband was also immature, had an alcohol problem and probably did not understand the nature and permanency of the marriage contract. His parents suggestions may have forced him into marriage.

4

Both parties were members of the Roman Catholic Church. The Church granted them an annulment in 1977. She had got a job in a Christian Brother College where her uncle was one of the Community. While there, she became very friendly with one of the brothers who assisted her in her application for a papal annulment. He subsequently left the Order and married her after she had got a papal annulment. They had two daughters. He works in Belgium. However, sadly, this relationship has also broken up. Counsel for the Petitioner raises various queries.

5

(1) Whether the Petitioner and the Respondent were in such a state of mind that at the date of their purported marriage neither was able to understand fully the nature of the marriage contract and were, therefore, unable to give a full, free and informed consent to the said ceremony of marriage, thereby rendering the purported marriage void.

6

(2) Whether the Petitioner was induced by duress to enter into the said ceremony of marriage in this way wondering the purported marriage void.

7

In some cases, there is an overlap between lack of consent by reasons of lack of normal comprehension of the marriage contract and lack of consent due to duress. In many cases the facts portray young, impractical and inexperienced people in a crises situation, (usually an unplanned pregnancy), which inhibits clear thinking. They tend to see marriage as a solution to an immediate problem (i.e. the pregnancy) and not as a serious life long commitment.

8

Thus, a full, free and informed consent to marry is essential for a valid marriage [cf. in N. (otherwise K.) -v- K., [1985] I.R. 733, and particularly Finlay C.J. at p.742 and McCarthy J. at p.754]. It is the Petitioner's contention that at the time of the marriage, by reason of their age (17 and 20 respectively) in very difficult circumstances including an unplanned pregnancy, parental disapproval, naivete and fear they did not see any viable alternative to marrying.

9

She relies on the case of N. (otherwise K.) -v- K., [1985] I.R. 733. The facts of that case are summarised by Carroll J. in her judgment at pages 735-6, which summary was adopted by Finlay C.J. on appeal to the Supreme Court.

"The petitioner left school at 16 and trained as a hairdresser. She comes from a family of four children originally. There was an elder brother who was killed tragically in 1976. He was close in age to the petitioner. There is a gap between the petitioner and the two younger children, a boy and a girl. Apart from the tragedy of the death which left its effect, the family was a happy one and the petitioner got on well with her parents. The petitioner is a quiet unassertive girl. She was brought up strictly but was always obedient to her parents. She gave them no trouble…the petitioner then met the respondent and went out with him on a casual basis… On one occasion in November 1978, the...

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