McK. v McK

• Jurisdiction: Ireland
• Judgment Date: 18 October 1936
• Date: 18 October 1936
• Court: High Court (Irish Free State)

McM. v. McM. and McK. v. McK.

McM

and

McM

and

McK

and

McK

Husband and wife - Marriage - Nullity of marriage - Impotence of petitioner - When a sufficient ground for declaration of nullity - Existence of other circumstances - Conduct of the respondent - Repudiation of contract -"Justa causa" - Whether impotence renders the marriage void or voidable - Pyschological or neurotic impotence - Wilful and persistent refusal or invincible repugnance to the other spouse - How far a sufficient ground for a declaration of nullity.

A decree for nullity of marriage cannot according to the principles of the Ecclesiastical Law as administered in the Matrimonial Court be granted to the petitioner on the ground merely of the petitioner's own impotence; but, if a petitioner can in addition to his own impotence satisfy the Court that there has been and is conduct on the part of the respondent which has destroyed the verum matrimonium, as, by a genuine and deliberate repudiation of the marriage contract and its obligations, the Court mayex justa causa grant the relief.

Dicta of Sir J. Nicholl in Norton v. Seton, 3 Phill. 147, and of Warren J. in A. v. A. sued as B., 19 L. R. Ir. 403, applied.

McM. v. McM.

A marriage was celebrated in 1927, the parties being Roman Cstholics. The parties lived together, without having consummated the marriage, until 1931. In that year, the petitioner, who was the husband, sought and obtained from the Archbishop of Tuam, permission, on the grounds of his own impotence, to live apart from the respondent, pending his taking proceedings in the Courts of the Church. No such proceedings were taken. In the same year, 1931, the respondent left the petitioner by reason of his personal violence towards her, and refused to return because she feared further violence. In the year 1934 the petitioner started the present proceedings seeking a declaration of nullity on the grounds of his own impotence and of the repudiation of the contract by the respondent. The respondent entered an appearance to, but refused to defend, the proceedings —her attitude being that she was content that the petitioner should obtain any redress to which he was entitled, but that she would not repudiate the marriage for reasons of conscience, until set aside by the tribunal of the Church. At the trial, the petitioner was found to be impotent at the date of the marriage.

Held that the respondent had not repudiated the contract, and that consequently the petitioner could not rely on his own impotence to have the marriage annulled, and the petition must accordingly be dismissed.

McK. v. McK.

A marriage was celebrated in August, 1932, and the parties cohabited until December, 1934. During that period the marriage was not consummated, for, despite the repeated efforts of the husband, who was admittedly potent the wife repelled any attempt at consummation, without any apparent reason. In the year 1935 the wife brought a petition for nullity grounded on her own impotence and on repudiation by the husband, the respondent. The respondent, who remained anxious to uphold the marriage, defended the proceeding, denying repudiation, and claiming that the petitioner left him in December, 1934, without just cause, and counterclaiming for restitution of conjugal rights. It was contended for the petitioner that she was neurotic and had an invincible repugnance to the respondent amounting to paralysis of her will so that she was unable to consummate the marriage with him. On medical inspection, the petitioner was found to be perfectly formed and apta viro: there was no suggestion of neurosis or hysteria or of any physical defect suggesting incapacity of any kind.

Held that the non-consummation of the marriage was due to the wilful and persistent refusal of the petitioner to have the marriage consumated and the petition must consequently be dismissed.

Napier v. Napier, [1915] P. 184 applied. G. v. G., [1924] A. C. 349considered.

Two Petitions for nullity of marriage on the ground of impotence.

McM. v. McM.

In this case the petition, which was dated the 3rd November, 1934, set out that on the 1st of August, 1927, in the U. church at D. a ceremony of marriage took place between the petitioner M. L. McM. and M. M. the respondent, setting out her address and description; that at the date of the said marriage the petitioner and the respondent were both domiciled in Saorstát Éireann; éireann; that they were then, and had been since the said marriage, domiciled in Saorstát Éireann; éireann; that the said marriage was never consummated; that the reason why the said marriage was not consummated was that the petitioner was impotent; that the impotency continued; that from and shortly after the said marriage the petitioner resided in the same house with the respondent at D., and subsequently at R., down to the month of July, 1931; since the latter date the petitioner and respondent had lived apart; the petitioner and respondent respectively then resided at E. and C. where they were school teachers; that there was no connivance or collusion directly or indirectly between the petitioner and the respondent or any other person whatever in reference to the subject-matter of the petition or in relation to the proceedings to be had thereunder or to the relief sought. The petitioner then prayed that the Court might be pleased to declare that the ceremony of marriage celebrated on the 1st day of August, 1927, between the said M. L. McM. and the said M. M. was null and void, and that the said M. L. McM. was free from all bond of marriage with the said M. M.

An affidavit of the same date was sworn by the petitioner and it was in identical terms with the petition, and the petitioner further deposed that he believed the averments contained in the petition to be true. The citation was issued on the 12th November, 1934, and served on the respondent on the 19th November, 1934. A notice of appearance was entered to the citation on the 22nd November, 1934, but no defence or answer thereto was filed.

On application of the petitioner, pursuant to notice of motion, dated the 16th January, 1935, the Master made an order on the 23rd January, 1935, appointing medical inspectors to examine the petitioner with a view to reporting as to whether he was potent or impotent.

The petition, as well as that of McK. v. McK., was heard by Hanna J. without a jury, it being heard on the 24th and 25th June, 1935, and that of McK. v. McK. on the 1st, 2nd, 3rd and 27th July, 1935. The further facts are set out sufficiently for the purpose of this report in the judgment of Hanna J. post.

McK. v. McK.

In this case the petition, which was dated the 15th April, 1935, set out that on the 17th August, 1932, at the church at B. a ceremony of marriage took place between the petitioner and B. McK., setting out his address; that at the time of the said ceremony the petitioner was a spinster and second cousin of the said B. McK. and the petitioner's

maiden name was M. McK.; that at the respective dates of the marriage and the petition, the domicile of the petitioner and the said B. McK. was Saorstát Éireann; éireann;that the petitioner lived in the same house with the said B. McK. after the said ceremony at C. until on or about 7th December, 1934; that the petitioner was at the time of the said ceremony and had been ever since wholly unable to consummate the said marriage by reason of the malformation or frigidity or impotence of her parts of generation, or hysteria, or from some other physical cause, the exact nature of which was to the petitioner at the time unknown; that the said malformation or frigidity or impotence or other physical cause affecting the parts of generation of the petitioner and rendering her incapable of consummating the said marriage was wholly incurable by art or skill and would so appear upon inspection; and the petition concluded with an allegation of no collusion and a prayer in similar terms to those of the petition ofMcM. v. McM.

The petitioner applied to the Court by notice of motion, dated 7th May, 1935, for an order decreeing her such sum or sums by way of alimony pendente lite as to the Court might seem just, and that the petitioner's costs in the cause up to, and including, the notice of motion should be taxed and be paid by the respondent to the petitioner, and that the future costs of the petitioner, to be incurred in the cause, be taxed de die in diem. The notice of motion was grounded on affidavit in which the petitioner referred to herself as the lawful wife of the respondent, referred to the marriage ceremony, exhibited the marriage certificate, and set out the various sources of income of the respondent and averred that she had no adequate means for her support. The respondent privately offered £3 per week alimony pendente lite, which was accepted by the petitioner.

By Answer, dated the 10th May, 1935, the respondent B. McK. admitted certain of the facts and matters set out in the petition, but denied that the petitioner was at the time or ever had been wholly or at all unable to consummate the said marriage for any of the reasons alleged by her, or for any other reason, known or unknown to her; he also denied that the alleged impotency was, if it existed, wholly incurable by art or skill; and further denied that he had, for the reasons alleged or for any reasons, repudiated the said marriage, as alleged or at all. The respondent further averred that since the 17th August, 1932, the date of the said marriage, the petitioner without any just cause refused and still refused to cohabit with the respondent, or to render him his conjugal rights, and that since the 7th December, 1934, the petitioner without any just cause had left the house and home of the respondent and had and still refused to live and cohabit with him. The respondent then prayed that the Court might be pleased to reject the prayer of the petitioner's said petition, and that it...