F(P) v O'M(G) Otherwise F(G)
| Jurisdiction | Ireland |
| Judge | Mr. Justice O'Higgins |
| Judgment Date | 26 March 1999 |
| Neutral Citation | [1999] IEHC 2 |
| Docket Number | No. 1996 7 M |
| Court | High Court |
| Date | 26 March 1999 |
[1999] IEHC 2
THE HIGH COURT
BETWEEN
AND
Citations:
B (A) V B (E) 1994 2 FLR 36
S V K 1993 1 FLR 18
M (BJ) V M (C) 1996 2 IR 575
J (M) V J (C) UNREP MCKENZIE 21.2.1991 (EX-TEMPORE)
O'N (M) (ORSE O'C) V O'C (B) 1996 1 IR 208
Synopsis
Family
Nullity; informed consent; petitioner's wife engaged in affair with third party before and after marriage; petitioner would not have consented to marriage had he known; whether consent of petitioner not informed; whether non-disclosure of inappropriate behaviour prior to or during courtship not a ground for nullity.
Held: Petition refused.
F. v. O'M. - High Court: O'Higgins J. - 26/03/1999
While the Court accepts the evidence that the petitioner would not have married the respondent had he known of her affair with another man the evidence did not go so far as to establish that his consent to marriage was not full, free and informed.
Mr. Justice O'Higginsdelivered the 26th day of March 1999.
The Petitioner and Respondent went through a ceremony of marriage according to the rites of the Roman Catholic Church in County Dublin in December 1987. Following the marriage they lived together in County Dublin. They have one child who was born in September 1989. After the breakdown of the relationship proceedings for judicial separation were commenced in the Circuit Court in Dublin on 17th May, 1995. Nullity proceedings were commenced by petition dated 31st January, 1996. By Order of the Master of the High Court dated 16th October, 1996 seventeen issues were Ordered to be tried. However, in the course of the hearing it was indicated by Counsel for the Applicant that he was relying on one ground only. That ground concerned whether, in the circumstances of the case, the Petitioner gave full free and informed consent to themarriage.
Seventeen witnesses in all were called, and the case lasted over a period of eight days. A great deal of the evidence is concerned with different versions of events givenby the witnesses as to matters that occurred after the marriage took place, and is directed to issues of credibility. In those circumstances, it is unnecessary to review in detail the evidence that has been given or analyse the marriage history at any length
The couple met in 1984 when P.F. was twenty and G.O'M. was twenty-one. They had a happy and relatively uneventful courtship. They commenced having sexual intercourse about six months after they met. They became engaged at Christmas of 1986 and were married in December 1987 They purchased a house in the summer of 1987. P.F. lived there and G.O'M. joined him at weekends. They were, by any standards, a very good looking couple. He was a member of a successful business family and she had an outgoing vivacious personality. The marriage was initially very happy but Mr. F. suspected a relationship between G.O'M. and a certain Mr. K. for whom she had worked prior to the marriage and for whom she continued to work after she became pregnant. A child was born in September 1989. It is unnecessary in these proceedings to analyse the history of the marriage as the issue in this case is to whether G.O'M. was having an affair with Mr. K. at a time when she was engaged to Mr. F., and, if there was such an affair, whether there was full and free consent to the marriage on the part of Mr. F. It is fair to say, however, that his suspicions about her relationship with Mr. K. cast some cloud on the marriage, and G.O'M. regarded P.F. as being jealous and over-possessive. There are allegations and counter-allegations of sporadic unpleasant scenes in the marriage which G.O'M. attributed to his excessive drinking and staying out late. In 1991 they moved house to an area not far away in south County Dublin. G.O'M. says that her husband's conduct deteriorated and that he frequently came home in the early hours of the morning. However, there were good times in the marriage even then. In the month of August 1993, Mr K's wife phoned G.O'M. and Mr. F. to tell them that she suspected her husband Mr. K. was having an affair with .G.O'M. It is alleged also that she sent nasty communications to G.O'M. and to the neighbours concerning herhusband's suspected adultery with G.O'M.. Around this time both parties sought medical help and G.O'M. volunteered to sever any contact with Mr. K.. However, after a successful few months, things began to deteriorate again and the relationship was stormy and unhappy. Mr. F. moved out of the marital bedroom sometime between September 1994 and January 1995 and lived in the attic. He eventually left the house in October 1995. He commenced proceedings for judicial separation in the Circuit Court in May and the grounds were, inter alia, the adultery of his wife with Mr.K..
The contention of the petitioner is straight forward. He claims that during the time of his engagement to G.O'M. she was involved in an affair with Mr. K.. Had he known this he would not have married G.O'M.. In the circumstances he claims that his consent to the marriage was not fully informed.
The Petitioner relies on five main pieces of evidence to support the allegations that he makes. They are as follows:
1. The evidence of Mr. K. (neighbour).
2. The evidence of Mr. T.
3. The evidence of Mrs. K.
4. The alleged admission by Mr. K..
5. The answer filed in the pleadings in the applications for judicial separation.
It should be borne in mind that all allegations of impropriety are vigorously and persistently denied by G.O'M. (subject to one matter, to which Shall refer later) and any impropriety is denied by Mr. K.. The question as to whether Mr. K. and G.O'M. were having an affair during the currency of the marriage and/or up to recent times is irrelevant to any issue which the Court has to determine save insofar as the question of credibility arise.Moreover, the allegations have to be placed in the context where the uncontradicted evidence of several witnesses is to the effect that during their engagement and up to, and for some time after the marriage G.O'M. showed every sign of being totally committed to and in love with the Petitioner in this case.
Mr. K. was a neighbour of the parties from 1987 for a period of years. He was sub-poenaed to Court. Between June and December before the wedding he was returning from work one evening and he saw G.O'M. embracing and kissing on the mouth a man whom he subsequently identified at the wedding as being Mr. K.. He put the incident out of his mind until the wedding day. This incident is denied vehemently by both G.O'M. and Mr. K.. Because of the suggestion that it was impossible to see through the window from the location where Mr. K. was, I was invited by the parties to visit the location myself. A visit to the location confirmed that it is quite possible to see through the window as sworn to by Mr. K.. It is submitted that Mr. K.'s evidence should be disregarded because of the length of time that has elapsed since the incident alleged, the fleeting opportunity for observation and the inherent dangers involved in visual identification. Moreover, Mr. K. is a friend of the Petitioner, P.F.
Mr. K. impressed me as being a careful, a truthful and a slightly reluctant witness and I accept his evidence as being correct notwithstanding the caution with which I have to approach it.
Mr. T. lived four or five doors away from the parties from August of 1987 until 1990. His wife was expecting a child in November 1987 and most evenings he wouldtake his dog for a walk, sometimes early in the evening or otherwise late. As he was walking on the road he noticed a gentleman who used to go into the F's house. After a few times he knew him to be Mr. K.. On one or two occasions when he was walking past the F's house, he noticed a man, whom he subsequently identified as Mr. K., coming towards him. When Mr. K. saw him he would turn around and walk back to where he had parked his car which was some distance away from the F's house. On one occasion he saw the gentleman turning around and going back into the F's house and Mrs. F received him at the door as far as Mr. T. knows. These incidents occurred from September 1987 and lasted until 1990. He knew Mr. K. prior to seeing him in there. He never saw the car parked at the driveway to the house but parked sixty to a hundred yards away. He gave evidence of seeing the car in mornings and that he adverted to it because he had seen it there on previous evenings. This occurred on occasions when Mr. F. was away. Both Mr. K. and G.O'M. deny any visits during the time in question (other than one at Christmas time when Mr. F. was present). It was suggested to Mr. T. that his evidence was incorrect and that he was motivated by bad feeling against Mr. K. because of previous business dealings. Mr. T. denied this and pointed out that on an occasion when he met G.O'M. and Mr. K. in a public house that he had an amicable conversation with them. The evidence of Mr. T. is most unlikely to be mistaken. It is either a fabrication or the truth. I believe it to be true. The evidence of stealth in parking the car away from the entrance to G.O'M's house and the evidence of the car being seen in the night-time and the following morning is suggestive of Mr. K. staying overnight and it suggestive of an affair. However, the evidence of Mr. T. does not establish on the balance of probabilities anything other than one visit prior to the date of the wedding. He merely stated that he thought the incidents started from September onwards. There is no evidence of parking the car overnight prior to the date of the wedding.
Mrs. K. was married to Mr. K. but is now separated. She blames G.O'M. for the breakdown of her marriage. It is...
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