B (O) v R (Nullity: Consent: Bigamy)

• Jurisdiction: Ireland
• Judgment Date: 01 January 2000
• Date: 01 January 2000
• Docket Number: [1998 No. 62M]
• Court: High Court

High Court

[1998 No. 62M]

O.B. v. R. (Nullity: Consent: Bigamy)

O.B.

Petitioner

and

R., Respondent, and O.B., Notice Party

Cases mentioned in this report:-

A.C. v. P.J. (Nullity: Consent) [1995] 2 I.R. 253.

A.M.N. v. J.P.C. [1988] I.L.R.M. 170.

B.C. v. L.O'F. (otherwise L.C.) (Unreported, High Court, Morris J., 25th November, 1994).

Carlisle v. Orr [1917] 2 I.R. 534.

Cuno v. Cuno (1870-75) 2 H.L., Sc. App. 300.

D.B. (otherwise O'R.) v. N. O'R. [1991] 1 I.R. 289; [1991] I.L.R.M. 160.

D.C. v. D.W. [1987] I.L.R.M. 58.

D.C. v. N.M. (falsely known as N.C.) (Nullity) [1997] 2 I.R. 218.

Dillon v. Dunnes Stores Ltd. [1966] I.R. 397.

G.M. (otherwise G.) v. T.G. (Unreported, High Court, Lavan J., 22nd November, 1991).

In re. Graham's case (1822-38) 2 Lewin 97

McG. v W. [2000] 1 I.L.R.M. 107.

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

J. O'C. v. M. O'C. (Unreported, High Court, Kinlen J., 25th February, 1994).

M. O'M. (orse. O'C.) v. B. O'C. (Nullity) [1996] 1 I.R. 208.

O'R. v. B. [1995] 2 I.L.R.M. 57.

P.C. v. V.C. [1990] 2 I.R. 91.

People (Attorney General) v. Ballins (1964) 30 Ir. Jur. Rep. 14.

People v. Hunt (1945) 80 I.L.T. 19.

R. v. Allen (1865-72) 1. L.R.C.C.R 367.

R. v. Brawn (1843-5) 1 Car Kir 144.

R. v. Fanning (1864-66)17 I.C.L.R. 289.

R. v. Griffin (1877-82) 14 Cox CC 308; 4 L.R.I. 497.

R. v. Povey 1 Dears C.R. Cas 32.

R. v. Robinson [1938] 1 All E.R. 301.

R. v. William Robinson (1935) 96 8 G.R. Appr. 29.

Smith v. Selwyn [1914] 3 K.B. 98; [1914-5] All E.R. 229.

Stone v. Marsh (1827) 6 B & C 551.

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

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

W. (C.) v. C. [1989] I.R. 696.

Criminal law - Bigamy - Earlier marriage and nullity - Whether prosecution for bigamy could be supported where earlier marriage declared void ab initio - Offences Against the Person Act, 1861 (24 & 25 Vict., c. 100), s. 57.

Family law - Marriage - Nullity - Consent - Informed consent - Unwanted pregnancy - Duress - Wife under extreme pressure at time of marriage - Burden of proof - Ability to consent at time of marriage - Delay - Approbation - Bigamy.

Jurisdiction - Civil claim - Evidence of felony - Matter not reported to gardaí - Whether court could grant nullity where evidence of bigamy had not been reported to gardaí.

Matrimonial petition.

The facts have been summarised in the headnote and are set out fully in the judgment of Kinlen J., infra.

By petition presented on the 16th April, 1998, the petitioner sought a decree that her marriage to the respondent was null and void. By order of the Master of the High Court made on the 8th July, 1998, it was directed that the following issues be tried:-

• 1. Did the petitioner give a full, free and informed consent to the marriage?

• 2. Was the petitioner induced to the said marriage by duress?

• 3. Were the petitioner and the respondent able to enter into and sustain a normal functional lifelong marital relationship with each other by reason of their respective states of mind, mental conditions, emotional developments and personalities at the date of the marriage?

The matter was heard by the High Court (Kinlen J.) on the 24th and 25th February and the 18th and 19th March, 1999.

The petitioner and respondent were married in 1970. The petitioner had discovered that she was pregnant by the respondent. It was suggested to the petitioner by her family that her options were to have an abortion, put the child up for adoption or else to marry the respondent. The petitioner contended that the only option available to her, if she wanted to keep her child, was to marry the respondent. The petitioner and respondent were 17 and 20 years of age at the time.

The marriage between the petitioner and the respondent failed after a short time. They were granted a church annulment in 1977. On receiving the annulment, the petitioner purported to marry the notice party. That relationship also broke down.

The petitioner brought a petition in the High Court seeking a declaration that the marriage to the respondent was null and void and of no legal effect on the grounds that she had not given a full, free and informed consent to the marriage. She contended that she was induced to enter her marriage under the duress of an unwanted pregnancy and parental disapproval. She further saw it as the only way that she could keep her child. Her petition for nullity was unopposed by the respondent but was opposed by the notice party.

The notice party contended that the petitioner had failed to prove that her decision to marry had not been of her own free choice. It was submitted that her decision had been made after a careful consideration of her situation and it was what she had wished to achieve. The notice party further contended that the petitioner had been guilty of unreasonable delay in seeking an annulment of her marriage to the respondent and had approbated the marriage by seeking social welfare payments on the basis of being a deserted spouse.

The court raised the question as to whether or not the petitioner's purported marriage to the notice party was bigamous, whether in the circumstances the Gardaí Síochána were to be informed, and whether a civil claim could be pursued where there was evidence of a felony which had not been prosecuted.

Held by the High Court (Kinlen J.), in granting a decree of nullity, 1, that a full, free and informed consent was essential for a valid marriage.

• N. (orse. K.) v. K. [1985] I.R. 733 applied.

2. That there was a very heavy burden of proof on a petitioner to establish that a marriage was null and void, and as marriage was protected by the Constitution, the courts exercised particular caution and scepticism when scrutinising the evidence proffered.

3. That the court was of the view that one had to look at the condition of the parties at the time they entered into the marriage and not at what may have emerged later.

4. That in the circumstances of this case, the court would not refuse the reliefs sought by the petitioner on the grounds of delay.

5. That applying for social welfare for the support of the petitioner and her child on the basis of being a deserted spouse, was not any form of approbation.

6. That, as the original marriage was void ab initio,it could not be the basis for a bigamy prosecution in itself.

Obiter dictum: as there was no question of material loss in the case, there was no need to report the matter to the Gardaí Síochána.

Smith v. Selwyn [1914] 3 K.B 98;Carlisle v. Orr[1917] 2 I.R. 534 considered.

Cur. adv. vult.

Kinlen J. 20th July, 1999

The petitioner in this suit was born on the 11th August, 1952. The respondent was born on the 27th March, 1950. They were married according to the rites of the Roman Catholic Church on the 19th April, 1970. The petitioner was over seventeen years of age and the respondent was just over twenty. Before the 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. Her boyfriend's sister took her to Holles 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.

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 twenty-six 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.

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...