K. (McC.) v McC

• Jurisdiction: Ireland
• Judge: O'Hanlon J.
• Judgment Date: 16 March 1982
• Neutral Citation: 1982 WJSC-HC 2200
• Court: High Court
• Docket Number: No.26M/1980
• Date: 16 March 1982

1982 WJSC-HC 2200

THE HIGH COURT

No.26M/1980

K. v. McC.

BETWEEN

M K (otherwise M McC)

Petitioner

-and-

F McC

Respondent

1 Judgment of O'Hanlon J. delivered the 16th March, 1982.

2 The Petitioner in this case asks the Court to decree that her marriage to the Respondent is null and void. Both parties were legally represented at the hearing, but neither in the Answer filed in the proceedings nor in the conduct of the case did the Respondent contest the claim, and it is apparent that a nullity decree is keenly desired by both parties. Indeed it would appear that the husband's lack of consent was relied upon in nullity proceedings before the Ecclesiastical Courts, which resulted in the making of a decree of nullity of marriage by Birmingham Metropolitan Tribunal on the 5th November, 1980. It is also important to note that the matter caused some difficulty to the Ecclesiastical Courts, since an affirmative decision in favour of the petition was given by The Dublin Regional Marriage Tribunal, followed by a negative decision given by the National Marriage Appeal Tribunal of Ireland, before the ultimate and binding decision was given by the third Tribunal to deal with the case.

3 The facts of the case are not in dispute and they reflect an unfortunate situation which must have arisen in relation to very many marriages in this country where the moral code has hitherto rested on a strong bedrock of religious belief.

4 Before summarising the relevant evidence, it is important to make the comment that I found the evidence of all the witnesses - the Petitioner and her mother, the Respondent, his mother and sister - completely credible and trustworthy. While the Petitioner and the Respondent are of one mind in seeking the relief referred to in the Petition I am satisfied that there is no collusion between them to act from improper motives or to deceive the Court in any way as to the true facts of the case in an effort to achieve release from a contract which is burdensome to both of them.

5 The Petitioner was born in August, 1953, and the Respondent in August, 1951. When they first met, while on holidays in the West of Ireland, the Respondent was in rather poorly-paid employment as a storeman, and the Petitioner was still a school-girl, about to embark on her last year at school. This was in 1970. They became friendly and in the following year, after the Petitioner had completed her Leaving Certificate, they associated with each other on a fairly regular basis in 1971 and 1972. It was described as being a case of a group of friends going around together rather than a close personal relationship between two people, and both parties said they never contemplated marriage at that stage nor was the subject ever discussed between them. The Petitioner secured a position in the Bank, early in 1972, with a better income than that of the Respondent, who had moved into different employment and taken a drop in salary in the hope of improving his prospects of progress to better things in the future.

6 Sexual intercourse took place between the parties in the Summer of 1972; both testified that this was the one and only occasion on which it took place before their marriage, and both were stunned by the later discovery that the Petitioner had become pregnant as a result of this single episode.

7 The Petitioner was then just 19 years of age and the Respondent just 21. The first to suspect that something was amiss was the Petitioner's mother, and when pregnancy tests revealed that her suspicions were well-founded, a series of harrowing scenes took place in both households. The Petitione's mother, to whom the Petitioner was very closely attached by bonds of affection and dependence, became terribly distressed; she told the Petitioner that she would have to marry the Respondent or leave home altogether. Her father, who was in poor health, having suffered two strokes, and with continuing high blood pressure, was even more agitated. The Petitioner described the situation in her home at the time as "tense and disastrous" her mother was "in bed, crying and broken up. - She said, 'You are going to have to get out or get married' - I was in a state of shock."

8 At the same time, stormy scenes were taking place in the Respondent's home. His father refused to speak to him or have anything to do with him. His mother told him he could not stay on in the house."The trend was: 'You are to get married - no options open - no advice by anyone - I had nowhere to go.""I was told I would have to get married. I was led to believe there was no other option open to me. I cracked up under pressure - acted irresponsibly." The situation in the Respondent's home was so bad that he had to leave home and go to live with a friend who later acted as best man at the wedding.

9 In the meantime, the two sets of parents met in the Petitioner's home, neither Petitioner nor Respondent being present or consulted in any way, and the decision was taken that the Respondent would have to marry the Petitioner as quickly as possible, before her pregnant condition became obvious to everyone. She was told by her mother to go and arrange it with a priest. She obeyed this directive, without communicating in any way with the Respondent. The priest asked her why she was in such a hurry to get married, and when she explained that she was pregnant he made no further comment but arranged for the marriage to take place at an early date.

10 The Respondent took no part in the arrangements for the wedding. He had to be put under great pressure to get the wedding ring, and arrived late for the ceremony. At that time he was earning only £15 per week, and he was not in a position to support a wife, nor had he done anything about providing a home for them after the marriage. After a honeymoon spent in a friend's house, and characterised by lack of affection and harmony between the husband and wife, they were taken in by his sister to live with her until they could provide a home of their own.

11 There followed a year spent in Scotland. The parties had marital relations on a number of occasions but their general relationship towards each other was deteriorating all the time. The Petitioner suffered a miscarriage only two weeks after the marriage had taken place and there were no children born to them thereafter. They separated in or about the month of February 1975 and have not lived together since that time.

12 The Respondent said in evidence: "I was told our parents had agreed we were to be married. I felt trapped - no way out - if they had sent the present case is duress. There is a good deal of authority in support of the proposition that duress in matrimonial causes is dealt with in the same way and is subject to the same rules as in the law of contract generally, and that to avoid a marriage contract or any other contract on grounds of duress there must be something in the nature of actual violence or threats of violence to the person, i.e., threats calculated to produce fear of loss of life or of bodily harm. (Co. Litt. 253b).

13 In Szechter v. Szechter. (1970) 3 A.E.R. 905, at p.915, Sir Jocelyn Simon P. concluded his judgment by stating:

"It is, in my view, insufficient to invalidate an otherwise good marriage that a party has entered into it in order to escape from a disagreeable situation, such as penury or social degradation. In order for the impediment of duress to vitiate an otherwise valid marriage, it must, in my judgment, be proved that the will of one of the parties thereto has been overborne by genuine and reasonably held fear caused by threat of immediate danger, for which the party is not himself responsible, to life, limb or liberty, so that the constraint destroys the reality of consent to ordinary wedlock. I think that in the instant case that test is satisfied."

14 In Szechter, a...