FML v an tÁrd Chláraitheoir

• Jurisdiction: Ireland
• Court: High Court
• Judge: Mr. Justice Lynch
• Judgment Date: 02 March 1984
• Neutral Citation: 1984 WJSC-HC 1399
• Date: 02 March 1984
• Docket Number: No. 4463P/1983

L & L v REGISTRAR GENERAL OF MARRIAGES

BETWEEN:

(F.M). L. AND (A). L.

Plaintiffs

and

AN tARD CHLARAITHEOIR NA mPOSADH (THE REGISTRAR GENERAL OFMARRIAGES)

Defendant

1984 WJSC-HC 1399

No. 4463P/1983

THE HIGH COURT

Subject Headings:

MARRIAGE: nullity

1 Judgment of Mr. Justice Lynchdelivered the 2nd day of March, 1984

2 The plaintiffs claim in this case is for a declaration that the marriage celebrated between them on the 5th September, 1979 is a valid and lawful marriage and that the defendant do permit the registration thereof and register the same in the Register of Marriages.

THE FACTS

3 1. The first named plaintiff married a Miss O'C on the 26th August, 1972 and that marriage was duly registered in the Register ofMarriages.

4 2. On the 4th August, 1978 a Papal dispensation was granted in respect of the said marriage of the 26th August, 1972 the effect of which was so far as the Roman Catholic Church is concerned to release the parties from the bonds of the said marriage and thus to entitle either party to remarry. The said Papal dispensation and its effect in the law of the Roman Catholic Church is however irrelevant to the issues which I have to decide. Indeedthe letter dated the 22nd August, 1978 notifying the first named plaintiff of the dispensation contains the following paragraph:

"This Papal dispensation does not purport to affect the civil status of the marriage in question. Should you wish to contract a further marriage in the Church, you alone will be responsible for the civil effects of such marriage. We would suggest that you would be well advised to take competent advice on this aspect of thematter."

5 3. On the 5th September, 1979 the first named plaintiff went through a ceremony of marriage with the second named plaintiff in the Roman Catholic Church in the Parish of Rolestown in the County of Dublin. The plaintiffs did not seek to have the said marriage registered in the Register of Marriages at that time.

6 4. On the 15th October, 1980 a decree of nullity was made by the High Court in respect of the said marriage of the 26th August, 1972 between the first named plaintiff and the said Miss O'C by reason of the impotence of the said Miss O'C. Following the said decree of nullity the plaintiffs sought to have registered their said marriage of the 5th September, 1979 in the Register of Marriages.

7 5. The defendant refused to register or permit the registration of the said marriage of the 5th September, 1979 on the grounds that at thedateof its celebration the first named plaintiff was already duly and properly registered in the Register of Marriages as being married to the said Miss O'C.

8 6. On the 20th October, 1983 a daughter was born to the plaintiffs. The birth of the said daughter was duly registered in the Register of Births with the plaintiffs referred to as parents and by their married names but this registration did not amount to any admission by the defendant as to the validity of the plaintiffs marriage of the 5th September, 1979 as no such question arose or was adverted to on the registration of the said birth. Pending the birth of their said daughter the plaintiffs commenced these proceedings by the issue of the Plenary Summons on the 28th June, 1983.

THE LAW

9 During the course of the trial of the action I was referred to the following authorities:

10 Usher .v. Usher (1912) 2 I.R. 445:

11 P. .v. P. (1916) 2 I.R. 400:

12 Newbold .v. Attorney General (1931) P. 75

13 Inverclyde .v. Inverclyde (1931) P. 29

14 McM .v. McM and McK .v. McK (1936) I.R. 177:

15 The Constitution Article 41 Section 3:

16 Clarke .v. Clarke (1943) 2 A.E.R. 540:

17 Mason .v. Mason (1944) N.I.134:

18 Dredge .v. Dredge (1947) 1 A.E.R. 29:

19 Deleneville .v. Deleneville (1948) p.100:

20 R .v. Algar (1954) 1 Q.B. 279:

21 Wiggins .v. Wiggins (1958) 2 A.E.R. 555.

22 It is clear from the foregoing authorities that the marriage between the first named plaintiff and Miss O'C was voidable rather than void by reason of the impotence of the said Miss O'C. The real question for decision by me is as to the effect of the decree of nullity of the 15th October, 1980 on such a voidable marriage. P. .v. P.. Newbold .v. Attorney General and Mason .v. Mason are clear authorities for the proposition that such a marriage on the pronouncement of the decree of nullity becomes absolutely void ab initio or in other words that the decree operates in accordance with its express terms. The decree of nullity in this case dated the 15th day of October, 1980 is as follows:-

"And the Judge having found that the marriage between thepetitioner"and the respondent has not been consummated and that such non-consummation was due to the impotence of the respondent by his final decree ordered that the marriage had and solemnized on the 26th day of August, 1972 between the petitioner and the respondent be...