C(N) v McL(K)

 
FREE EXCERPT

THE CIRCUIT FAMILY COURT

REC. NO. 93/FL 2000

IN THE MATTER OF THE JUDICIAL SEPARATION AND FAMILY LAW REFORM ACT 1989
AND
IN THE MATTER OF THE FAMILY LAW ACT 1995
Between:
N.C.
PLAINTIFF
-and
K.McL.
DEFENDANT
Abstract:

Family law - Nullity - Duress - Marriage - Whether decree of nullity should be granted - Whether spouse incapable of consenting to marriage - Judicial Separation and Family Law Reform Act, 1989 - Family Law Act, 1995.

1

Judgment of His Honour Judge Bryan McMahon delivered on 22nd February, 2002. at [insert town].

2

The applicant husband in these proceedings was born on the 19th November, 1973. The respondent was two years his junior and the couple started dating when the respondent was sixteen. She knew the applicant since she was twelve as they came from the same neighbourhood. The applicant was the respondent’s first boyfriend. The respondent passed her Leaving Certificate and spent one term in an art college in Dundalk. There was an unplanned pregnancy and the respondent gave birth to a baby boy, on the 19th September, 1994, six days before her nineteenth birthday. There were some complications around the time of the birth and for some months after, otherwise the relationship was good during this period.

3

The unplanned birth appears to have been accepted by the parties and by their extended families with commendable maturity and some equanimity. The respondent’s own family were very supportive after she had the baby, and she went back to live with them for a period. The respondent did not drink or smoke, and her background was evidently very stable. After the birth of her son the applicant’s father wanted the couple to marry, but the respondent thought that she was too young and firmly resisted any pressure from that quarter. Her stance in this matter did not damage relations and the respondent went to live with the applicant’s parents from November 1994 to January1995.The couple next rented an apartment and lived in this accommodation until June 1997, when they bought their first family home. The relationship between the parties was good during this period, and there was no apparent tension between the parties or their respective families. During all this time, the young couple talked a lot about marriage and it is clear that they planned to marry sometime in the future when the time was appropriate.

4

The applicant proposed to the respondent in Paris in 1998, and the respondent accepted. She said she “felt it was the right time as her son was beginning school”. The couple took the decision seriously and they took a pre-marriage course as preparation. Apart from becoming a bit nervous about a month before the marriage, the preparations went normally, and the marriage went ahead as planned on the 9th of September 1999. The couple had sex on the wedding night. There were no further sexual relations between the parties after the marriage.

5

Within three weeks the respondent embarked on a sexual relationship with a friend of the applicant’s brother who used to stay, from time to time, with the couple in the family home, when they were married. Within three months the respondent was pregnant with her new partner’s child and she left the family home. Not surprisingly, the applicant became upset and he was eventually barred from attending the respondent’s new residence. The respondent at the time of this hearing lives with her new partner and she has another child by him. This latter relationship appears to be stable.

6

In the present proceedings the applicant seeks a decree of nullity pursuant to section 39 of the Family Law Act, 1995. The respondent has filed a Defence and Counterclaim. In her defence she denies that there are any grounds for a nullity decree and argues that the applicant was, in any event, estopped by virtue of his participation in the earlier barring proceedings, from

7

seeking a declaration of nullity at this stage. In her counterclaim she seeks a decree of judicial separation.

8

When the case came on for hearing, in February 2002, in was agreed that the nullity application would be dealt with first, and if the court refused the nullity decree the case would proceed to consider the application for judicial separation as claimed in the respondent’s counterclaim.

9

Neither party chose to give evidence, even though the respondent in her defence denied her incapacity to consent to a valid marriage, and so, the only evidence on the nullity issue was that given by the consultant psychiatrist who had earlier made a report on each of the parties. The facts as found by the court, therefore, are mainly derived from the evidence of the psychiatrist and from her report which was before the court.

10

Counsel for the applicant and counsel for the respondent in written submissions argued that the evidence of the psychiatrist at the trial showed that the consent of the respondent was fundamentally flawed, in particular, it was argued first, that the respondent had married as a result of duress and, secondly, that the respondent at the time of the marriage did not have the capacity to maintain a lasting...

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