D.B. (Otherwise O'R) v N. O'R

• Jurisdiction: Ireland
• Judge: HEDERMAN J.
• Judgment Date: 01 January 1991
• Neutral Citation: 1990 WJSC-SC 2486
• Docket Number: (439/88),[1987 No. 20 M]
• Court: Supreme Court
• Date: 01 January 1991

B (D) ORSE O'R v. O'R

BETWEEN:

D.B. (OTHERWISE O'R)

Petitioner/Appellant

and

O'R.

Respondent

1990 WJSC-SC 2486

(439/88)

THE SUPREME COURT

Synopsis:

DELAY

Petition

Filing - 20 years - Marriage - Nullity - Child bride - Consent - Absence - Petition granted - (439/88 - Supreme Court - 13/12/90)

|B. v. O'R.|

MARRIAGE

Nullity

Consent - Absence - Child bride - Circumstances existing at time of marriage ceremony - Filing of petition - Delay - Twenty years - Petition granted - (439/88 - Supreme Court - 13/12/90)

|B. v. O'R.|

Citations:

N (ORSE K) V K 1985 IR 733

1 JUDGMENT delivered on the 13th day of December 1990 by HEDERMAN J. [Nem diss]

2 This is an appeal from the judgment and order of Miss Justice Carroll of the 29th July, 1988, dismissing the petitioner's claim for a decree of nullity. The petition was lodged in the Central Office of the High Court on the 29th May, 1987. Liberty to issue a citation was granted by the Master of the High Court on the 17th June, 1987. An appearance was entered by the respondent on the 24th July, 1987. On the 25th November, 1987 the following questions were referred by the Master for trial before a judge:-

3 1. Whether the petitioner's consent to the marriage was a true consent?

4 2. If not whether such consent was induced by duress?

5 The hearing took place on the 26th and 27th July, 1988 and a written judgment was delivered on the 29th July 1988, when the petition was refused.

6 The respondent was not legally represented either in the High Court or in this Court, but gave evidence in the High Court and made submissions on his own behalf before this Court.

7 To summarise the evidence before the High Court — The petitioner was born on the 7th November, 1949 and was married on the 12th August, 1966 in the Catholic Church in Blackrock, Co. Dublin.

8 From an early age the petitioner lived in an orphanage. She did not realise she had a family until she was 11 years of age when visited by a brother (himself in an industrial school) who told her that she had a mother and father as well as three brothers and a sister and he told her where they lived. The two elder brothers were in an industrial school and the younger brother and sister were at home with their parents.

9 The petitioner met her parents when she was about 13 years of age. She went to see them where they lived in a caravan in Inchicore. She did not have any contact with her parents for a further six months. A national school was attached to the orphanage and when she had finished her primary education she went to Sandymount High School, while continuing to reside in the orphanage. She was in one of the top grades at the High School where she did her Intermediate Certificate examination.

10 Seemingly, her parents often moved from place to place. In 1965 her parents were living in a caravan in the Blackrock area. The petitioner stayed with them for four weeks. While there she worked in a cafe at night-time. She was then 15½ years old. The cafe was in Dun Laoghaire and her work hours were from 6 p.m. to midnight. While working in the cafe she met the "respondent", while he was on leave from the British army. After some persuasion on his part she agreed to go out with him. She said in evidence they met on six or seven occasions. The petitioner described herself as extremely shy and not used to the company of men. She had not received any sex education. She had no feelings towards the "respondent" but she said "there was a jubilation" that there was a man interested in her. When the holidays were finished she went back to the orphanage and the "respondent" went back to the army in England. He wrote letters to her through a school friend so as to avoid detection.

11 Sister L. was the nun in charge of the orphanage.

12 At Christmas 1965 the petitioner stayed with her parents. The "respondent" was home on leave from the army and during that Christmas they met. The evidence does not establish how long he was home and how often they met but in cross-examination by the "respondent" she agreed that in January 1966 an engagement ring was purchased. At the beginning of June the petitioner went to stay with her parents again and the "respondent" met her two or three nights during that Whit holiday period. On one of these occasions the parties had sexual intercourse during which she was told by him a baby might result. She said she vaguely knew about pregnancy. She returned to the orphanage where she subsequently did her Intermediate Certificate examination. At that time she was 16½ years and as her education was finished she returned home to her parents. While at home she told a friend that she had missed a period. Shortly after that she was returned to the orphanage by her parents. She said at the time she did not know but learned much later that the "respondent" had sent a letter to her which was intercepted by her parents. In the letter he described how she would feel if she was pregnant. Her parents brought this letter to the nun in charge and it was in those circumstances that she was returned to the orphanage. She said that after Sr. L. asked her if she had missed a period she said she had and told her about the "respondent". She was examined by a doctor but was too shy to tell him what had happened. The doctor confirmed that she was pregnant. She was very vague as to what happened after that because it was more or less arranged over her head. Sr. L. contacted the "respondent's mother and the "respondent" was contacted abroad. The petitioner said that her mother and father were contacted and she was told in the middle of July that the "respondent" was willing to marry her.

13 She stated that nothing about marriage was discussed with her. At the time she felt numb and devastated but could do nothing. There was no discussion about her having the baby and not getting married. The arrangements for the marriage were all made between the respondent and Sr. L. The petitioner went on to say that she saw the "respondent" two or three times during the week that she stayed with Mrs. F. and Miss D. before the marriage. (These two ladies had befriended the petitioner and had her stay in their home from time to time on leave from the orphanage). According to her recollection these meetings with the "respondent" were for the purpose of getting clothes and having her hair cut. She could not remember anything about the ceremony. She was grateful to the "respondent" for marrying her but did not love him and was scared of him.

14 The petitioner went on to indicate that she did not relate to her parents. She could not talk to them and they could not talk to her. They did not come to her wedding but Mrs. F. and her son did. the "respondent's" mother came to the ceremony but stayed at the back of the church.

15 After the wedding they went to a hotel where they had a few glasses of sherry or something and the petitioner had a cup of coffee. That night they went to London where they spent a week before they went on up to the army camp where the "respondent" was stationed. She said at that stage she began to see another side of her husband. She said she thought he was angry, maybe he felt trapped and she could not respond to him as a wife. The first child was born on the 29th March, 1967 in England. Six weeks after the child was born she came back to Ireland and lived with the "respondent's" mother for about a year and a half. The respondent came to visit when on leave. The "respondent" finally left the army in 1969 and the petitioner became pregnant again and the petitioner and the "respondent" moved into a flat where they lived for two years. The "respondent" was in full-time employment but as they had to vacate the flat the petitioner and her children moved into the orphanage and he went to live with his mother until they got a caravan. After the birth of their third child they were housed by Dun Laoghaire Corporation and the petitioner lived in this house until April, 1988.

16 The petitioner further said that as a mother she was very good but had little actual knowledge of life. It was only at the stage when she started to work in a factory at the age of 28 or 29 that she began to realise the situation. She said that the marriage broke down in 1983. She started to go out with friends and she met a particular man and they became friends. She said that her husband got violent over this and threw her out of the house one night, which resulted in a broken leg and a fractured skull. She said she took no action until 1985 but then she got a barring order from the Court because he hit her and split her eye. She said in 1984 a social worker contacted her because her nerves were shattered and the social worker suggested the possibility of a church annulment. She said that first she backed out of a civil annulment because she thought it might harm the children but the social worker informed her that there was a new law coming in that provided that if a marriage was annulled it would not make the children illegitimate. Then she decided to go ahead and seek the civil annulment. She said that 2½ years prior to the hearing she had formed a relationship with another man. Since then they had set up home together and they are living with four of her children. The eldest boy was 22 years at the date of the hearing and was then living with his father. She said that she intended to continue living with this man.

17 During cross-examination by the "respondent", she agreed that she was baptized on the morning of the marriage. She also agreed the "respondent" had asked her to marry him and she had accepted the ring. She stated that at 15 or 16 marriage was just a word to her. She was further asked:-

"230 Q.	the case you brought against me is all on me being an objectionable person.
A.	I never said that.
Q.	You were quite prepared when we went together,...