L.B. v T.MacC.

• Jurisdiction: Ireland
• Judge: Mr. Justice Kearns
• Judgment Date: 06 March 2009
• Neutral Citation: [2009] IESC 21
• Docket Number: Appeal No. 8/2005
• Court: Supreme Court
• Date: 06 March 2009

[2009] IESC 21

THE SUPREME COURT

Kearns J.

Macken J.

Finnegan J.

Appeal No. 8/2005

B (L) v MacC (T)

(Matrimonial)

BETWEEN

L.B.

PETITIONER/APPELLANT

AND

T.MacC.

RESPONDENT

F (P) v O'M (G) (ORSE F (G) 2001 3 IR 1 2000/9/3366

CONSTITUTION ART 41.1.3

S v S 1976-1977 ILRM 156

MOSS v MOSS (ORSE ARCHER) 1897 1 P 263

WAKEFIELD v MACKAY 1807 1 HAG CON 394 1 PHILLIM 134N 161 ER 593

O'M (M) (ORSE O'C) v O'C (B) 1996 1 IR 208

F (P) v O'M (G) (ORSE F (G)) 2001 3 IR 1

Abstract:

Family law - Annulment - Psychological maturity of the respondent - Exaggerations in curriculum vitae - Article 41 of Constitution - Whether respondent had personality disorder such that marriage should have been annulled

Facts: The appellant sought to appeal a refusal of the High Court to grant an annulment of the petitioner’s marriage to the respondent. The parties separated in 1997. The petitioner had alleged that the respondent had misrepresented fundamental facts and that he suffered from psychological maturity and under-development of character. She alleged, in particular, that he was incapable of managing financial affairs and that he had exaggerated his professional and financial dealings, including in the context of his Curriculum Vitae (C.V.). The High Court had held that the totality of the evidence had not disclosed personality traits outside of the norm as to constitute a personality disorder.

Held by the Supreme Court per Kearns J. (Macken & Finnegan JJ concurring), that the trial judge was entitled to assess certain assertions made by the respondent in respect of exaggerations made in his CV. The evidence came nowhere to establishing that the respondent lacked capacity to contract to a valid marriage. The constitutional protection afforded to marriage entailed that stronger evidence was needed to demonstrate such a lack of capacity. The appeal would be dismissed.

Reporter: E.F.

Mr. Justice Kearns

Judgment delivered by Kearns J. [nem diss]

1 This is an appeal from the refusal of the High Court (O'Higgins J.) to grant an annulment of the petitioner's marriage to the respondent. The parties were married on the 5^th May, 1993 according to the rites of the Church of Scotland in Glasgow. They subsequently had two children, A.MacC, born in May, 1994 and S.MacC, born in September, 1997. The petitioner is an Irish citizen and the respondent is a citizen of the United Kingdom and is from Scotland. At the time of the marriage, the petitioner was domiciled in Ireland and the respondent was domiciled in Scotland. After the marriage, the petitioner lived and cohabited with the respondent at an address in Glasgow and also in a rural part of the south of Ireland.

2 The parties separated in 1997 whereupon the respondent commenced judicial separation proceedings. It was agreed that those proceedings should be adjourned pending the outcome of this case. On 4^th May, 2000, the parties entered into an agreement dealing with many of the issues in the judicial separation proceedings, including arrangements for the custody of the children. The learned High Court judge was satisfied that there was no question of any collusion between the parties. Apart from nominating a solicitor for the purpose of the serving of documents, the respondent has chosen to take no part in these proceedings.

3 Paragraph 7 of the petition dated 12^th May, 1999 stated that:-

"Your petitioner's consent to the marriage was not fully informed and was obtained by misrepresentation of fundamental facts and fraud on the part of the respondent in respect of his personal circumstances, his family circumstances, his character and his intentions."

"The respondent lacked capacity to marry in that he suffered from psychological immaturity and under-development of character to such an extent that he was incapable of maintaining a normal marital relationship with your petitioner and was pathologically given to deception and concealment in relation to his circumstances, intentions and emotions in such a way as to wholly prevent and undermine the development of any proper matrimonial relationship."

Paragraph 8 of the petition further asserted that:-

4 The misrepresentation and fraud alleged against the respondent in relation to his personal circumstances, his family circumstances, and his professional circumstances, include assertions that:-

5 (a) The respondent represented himself to the petitioner as a man of substantial wealth and position in society. He concealed from the petitioner that he was chronically indebted and incapable of managing his own financial affairs.

6 (b) The respondent represented to the petitioner that he was the owner of a substantial home which he proposed to be the family home but which was, in fact, encumbered with debt to such an extent that he was obliged to sell it within a year of the marriage.

7 (c) The respondent wholly misrepresented to the petitioner the extent of his status as a partner in a Scottish business partnership from which, owing to his inability to commit himself to work and to further his own financial interests, he was unable to derive an income in any way adequate to meet his own financial commitments.

8 (d) The respondent concealed from the petitioner the fact that demands were made by his business partners that he should improve his performance and invest in his partnership and concealed also other circumstances which led to the collapse of his partnership in the year following the marriage.

9 (e) The respondent represented to the petitioner that he was the son of a happy and functional family and that the petitioner would be part of this extended family life. However, after the marriage, the petitioner never met any members of the family apart from his parents with whom the respondent had an unusual and secretive relationship.

10 (f) The respondent represented himself as someone who was outgoing, honest and interested in establishing and sustaining a matrimonial relationship with the petitioner. However, after the purported marriage, the petitioner discovered that the respondent was dishonest both in his business and personal dealings, untrustworthy, given to practising deceptions on a routine basis, and incapable of addressing social and economic realities on any realistic basis.

11 (g) The respondent, instead of acting as a normal breadwinning member of the family, took every opportunity to avail of the petitioner's resources and to become financially dependent upon the petitioner and avoided his financial and family responsibilities to a wholly unwarranted extent.

12 (h) The respondent continually incurred indebtedness in a reckless and irresponsible way without any regard to his capacity to defray such debts.

13 (i) Following the birth of A.MacC, the respondent demonstrated little or no interest in sustaining a sexual relationship and drank excessively and remained secretive about his personal feelings, emotions and activities.

14 (j) The respondent demonstrated complete emotional immaturity and incompatibility with the petitioner.

15 While the inferences drawn from the facts as found by the learned High Court judge are under attack in this appeal, there is no suggestion that the primary facts as found by the learned High Court judge were in any way incorrect. The following summary of the evidence in the High Court therefore borrows heavily from the judgment of O'Higgins J. delivered on 20^th December, 2004.

16 The petitioner is a professional person with a practice in the south of Ireland. She became National President of a voluntary organisation for business and professional people and through that organisation met the respondent in 1988. A relationship between the parties did not develop until June, 1992 and the parties became engaged in December, 1992 and were subsequently married in Scotland in May, 1993. At the time of the marriage the respondent was a partner in a Scottish business but he was in dispute with that firm and left the practise in 1994. He had bought a house in Scotland in 1991 or 1992 but he had to sell it in November, 1994 to cover debts incurred by him and of which the petitioner was unaware. The petitioner gave evidence that the respondent had never told her of his financial difficulties or the facts of his professional dispute.

17 Subsequent to the marriage, the respondent was far from successful in his financial and business dealings. On the contrary, he was a considerable financial burden to the petitioner and a constant drain on her financial resources. The difficulties became apparent at an early stage of the marriage. Contrary to the expectations of the petitioner that the respondent's family would pay for the wedding celebrations, the petitioner had to pay herself both for the wedding celebrations in Scotland and for the celebrations subsequently held in Ireland. The petitioner had understood from the respondent that he was a member of a close - knit family, but subsequent to the marriage she discovered that the respondent did not appear to have any close relationships with his extended family other than with his parents.

18 The parents of the respondent spent the first Christmas after the marriage in Ireland and the petitioner returned with the respondent to Glasgow after Christmas in the expectation of Hogmanay celebrations with the respondent's extended family. However, these celebrations never occurred and, with the exception of one couple, the parties had no further contact with the respondent's extended family.

19 Making the best she could of things, the petitioner subsidised the rental of office space for the respondent in Dublin while he sought work and resided in an apartment owned by her parents. She supported him generously and financially through a number of unsuccessful business enterprises....