F (Orse C) v C

• Jurisdiction: Ireland
• Judge: FINLAY C.J.,McCarthy, J.
• Judgment Date: 11 July 1990
• Neutral Citation: 1990 WJSC-SC 1812
• Court: Supreme Court
• Date: 11 July 1990

1990 WJSC-SC 1812

THE SUPREME COURT

Finlay C.

Griffin J.

Hederman J.

McCarthy J.

O'Flaherty J.

229/89

F (ORSE C) v. C

F. (formerly C.)

v.

C.

Synopsis:

HIGH COURT

Jurisdiction

Marriage - Nullity - Petition - Grounds - Homosexuality - Case law - Review - Capacity of respondent to form and maintain normal marital relationship - (229/89 - Supreme Court - 11/7/90)

|F. v. C.|

MARRIAGE

Nullity

Petition - Grounds - Homosexuality - Case law - Review - Capacity of respondent to form and maintain marital relationship - Onus of proof - Petition granted - Matrimonial Causes and Marriage Law (Ireland) Amendment Act, 1870, s. 13 - (229/89 - Supreme Court - 11/7/90) - [1991] 2 I.R. 330 - [1991] ILRM 65

|F. v. C.|

1 JUDGMENT delivered on the 11th day of July 1990by FINLAY C.J. [GRIFFIN J HEDERMAN, J O'FLAHERTY, J conc]

2 This is an appeal by the Petitioner against the Order of the High Court made by Keane J. on the 24th May 1989, dismissing her Petition for nullity of marriage. The Petitioner was married to the Respondent in a Catholic Church ceremony on the 4th July 1981. By Petition dated the 23rd November 1987, the Petitioner sought a decree of nullity upon grounds as set out in the Citation, that the Respondent at the date ofthemarriage and prior thereto and subsequent thereto was a homosexual and had homosexual relationships, and by reason of his homosexual nature and temperament lacked the capacity to form and to maintain or sustain a normal relationship with the Petitioner and/or was unable to understand fully the nature, purpose and consequence of the marriage contract.

3 The Respondent did not enter any appearance to nor seek to defend the Petition. The Order of the Master of the High Court of the 15th June 1988 determined the questions to be tried as follows:

4 2 "1. Whether the Respondent was a homosexual prior to, at the date of and subsequent to the ceremony of marriage to the Petitioner and had a homosexual relationship and a homosexual nature.

5 2. Whether the Respondent by virtue of his said homosexual nature and temperament lacked the capacity to form or maintain a normal marital relationship with the Petitioner.

6 3. Whether the Respondent by virtue of his said homosexual nature and temperament was unable to understand the nature, purposes and consequences of the marriage contract."

7 Upon the hearing of the Petition the Petitioner gave evidence; a woman who was a mutual friend of both the Petitioner and the Respondent and who was well acquainted with them prior to and during the period when they lived together after the marriage, gave evidence; and a consultant psychiatrist who had examined and interviewed both the Petitioner and the Respondent subsequent to the institution of the proceedings, gaveevidence.

8 At the conclusion of the hearing of the evidence the learned trial Judge reserved his judgment.

9 In the course of his reserved judgment the learned trial Judge made the following findings of fact:

10 2 "1. The Petition has been presented in good faith by the Petitioner, without any element of collusionwith the Respondent.

11 2. The Respondent was at the time of the marriage a practising homosexual, a condition which he concealed from the Petitioner, who was completely unaware of this side of his nature.

12 3. There is no evidence to indicate that at the time of the marriage the Respondent did not understand the nature, purpose or consequences of the marriage contract or that he was suffering at that time from any form of mental illness.

13 4. Shortly after the marriage the Respondent resumed his homosexual practices and the marriage has as a result irretrievably brokendown."

14 Apart from these specific findings of fact the learned trial Judge, in reviewing the evidence, accepted both the evidence of the Petitioner as being entirely truthful and, clearly, also accepted the findings with regard to his examinations and interviews of the consultant psychiatrist who gave evidence before him. Having made these findings of fact the learned trial Judge identified the legal question before him in the following terms:

"The question of law which arises in this case is as follows. Can a petitioner who has contracted a marriage with someone of strongly homosexual inclinations but whose marriage is in all other respects valid obtain from the Court an annulment of that marriage when the Petitioner was unaware at the time of the marriage of those inclinations on the part of his or her intended spouse?"

15 The learned trial Judge decided this question of law which he had formulated in the negative and, having so done, expressly refrained from making any finding as to whether the Respondent was at the time of the marriage incapable by virtue of his homosexual nature of forming or maintaining a normal marital relationship with the Petitioner. He therefore dismissed the Petition. Against that decision the Petitioner appealed to this Court, the grounds of such appeal both being against the finding by the learned trial Judge that there was no evidence to indicate that at the time of the marriage the Respondent did not understand the nature, purpose or consequences of the marriage contract,and against the finding by the learned trial Judge that no grounds of nullity exists in law when the Respondent was at the time of the marriage incapable by virtue of his homosexual nature of forming or maintaining a normal marital relationship with the Petitioner. The Respondent was, again, not represented at the hearing of this appeal which was served upon him and, accordingly, the Court has not had the benefit of any submissions made on his behalf or of any submissions challenging the validity of submissions which were carefully and fully presented on behalf of the Appellant and Petitioner.

16 I am satisfied that this appeal should be allowed upon the grounds that the incapacity of one of the parties, by virtue of a homosexual nature, to form or maintain a normal marital relationship with the other party is a valid ground for nullity, and that on the facts and evidence as accepted by the learned trial Judge the only reasonable conclusion which can be drawn is that the Respondent in this case was so incapable.

17 The learned trial Judge in arriving at this conclusion of law reviewed a number of decisions leading to a contrary conclusion which had been reached by his colleagues in the High Court, and found himself unable to follow them, for reasons which he set out. Those decisions are:

R.S.J. v. J.S.J., 1982 ILRM, decision of Barrington J.;

D. v. C., 1984 ILRM, decision of Costello J.;

McD. (Orse. O'R.) v. O'R, unreported, 26th January 1984, decision of Hamilton J.;

W. v. P., unreported, 7th June 1984, decision of BarringtonJ.;

M.E. v. A.E., unreported, 8th May 1987, decision of O'HanlonJ.;

D.C. (Orse. D.W.) v. D.W., 1987 ILRM, decision of BlayneyJ.

18 In addition, the decision of the learned trial Judge on the questions arising in this case, wouldappear to be in conflict with the decision in the case of B. v.M. which was unreported but decided on the 27th March 1987 by Barrington J., and with the decision of F. v. F., unreported, 22nd June 1988 of Barren J., and with the decision of W. (Orse. C.) v. C. of the 17th February 1989 of Barren J.

19 Since the delivery of the judgment by Keane J. in the present case, it was considered by Lardner J. in the case of R.T. v. V.P. (Orse.T.), unreported, delivered on the 30th July 1989, and he declined to follow it. It also would appear to be inconsistent with, though not expressly mentioned in, the decision of MacKenzie J. in C. (Orse. G.) v. C., unreported, but delivered in October 1989.

20 The reasons for the conclusion reached by the learned trial Judge in the Court below may thus be summarised.

21 1. The provisions of the Marriage Law (Ireland) Amendment Act 1870 and, in particular, of Section 13thereof which provides that the Court for Matrimonial Causes and Matters shall proceed and act and give relief on principles and rules which "in the opinion of the said Court shall be as nearly as may be conformable to the principles and rules on which the Ecclesiastical Courts of Ireland have heretofore acted and given relief", prohibit this Court from now adding a ground of nullity to the law which did not exist prior to 1870.

22 2. That a ground for a decree of nullity consisting of the incapacity of a person to form and sustain a lasting marital relationship with the other party to the marriage is a new or additional ground for nullity and as such prohibited by the Act of 1870.

23 3. Even if an incapacity to form and sustain a proper marital relationship with the other party to the marriage which is derived from an identifiable mental or psychiatric illness is a permissible development of the law of nullity, that development cannot permissibly be extended to an incapacity arising from a homosexualnature.

24 4. The decisions allowing this particular ground of nullity are, in short, an unconstitutional legislation by theCourts.

25 In reaching these particular conclusions the learned trial Judge appears to have relied on an assertion that the onus of proof on a Petitioner seeking a decree of nullity on any grounds is a very high onus, it being necessary to establish the appropriate facts beyond a reasonable doubt and that from this principle dealing with the burden of proof there can be construed a particular restriction on the development of the legal principles applicable to the grounds of nullity.

26 In the course of a judgment which was dissenting with regard to the reasons contained in it, though concurring in the result of the appeal, delivered by Kenny J. in the case of S. v. S. in this Court on the 1st July 1976, which is unreported, he stated as follows:

"The law administered in the ecclesiastical courts in Ireland was not the general canon law of Europe as it existed...