N. (Otherwise K.) v K

• Jurisdiction: Ireland
• Judge: HEDERMAN J.,FINLAY C.J.,Henchy J.,McCARTHY J.,GRIFFIN J.
• Judgment Date: 01 January 1986
• Neutral Citation: 1985 WJSC-SC 2585
• Date: 01 January 1986
• Court: Supreme Court
• Docket Number: [1983 No. 37 M]

1985 WJSC-SC 2585

THE SUPREME COURT

Finlay C.J.

Henchy J.

Griffin J.

Hederman J.

McCarthy J.

234/84

N (OTHERWISE K) v. K

thus be

N. (OTHERWISE K.)

v.

K.

Citations:

B V D UNREP MURNAGHAN 20.6.73

CONSTITUTION ART 41

CONSTITUTION ART 41.3

DPP (NI) V LYNCH 1975 AC 653

GRIFFITH V GRIFFITH 1944 IR 35

HIRAMI V HIRAMI 1983 4 FLR 232

K (ORSE MCC) V MCC 1982 ILRM 277

K V K UNREP O'KEEFFE 16.2.71

MARRIAGE ACT 1972

MATRIMONIAL CAUSES & MARRIAGE LAW (IRL) (AMDT) ACT 1870 S13

MCK V MCK 1936 IR 177

MURRAY V IRELAND & AG 1985 IR 532 1985 ILRM 542

N (ORSE K) V K 1986 ILRM 75

O'CONNOR RECENT DEVELOPMENTS IN IRISH LAW OF NULLITY 1983 5 DULJ 168

S V O'S UNREP FINLAY 28.2.79

SCOTT V SEBRIGHT LR 12 PD 21

SINGH V SINGH 1971 2 WLR 964

SZECHTER (ORSE KARSOV) V SZECHTER 1971 2 WLR 170

USSHER V USSHER 1912 2 IR 445

Synopsis:

HUSBAND AND WIFE

Marriage

Nullity - Wife's petition - Pre-marital pregnancy - Parental insistence on marriage - Consent - Duress - Docile acquiescence by girl aged 19 years - Presumption of valid consent - Rebuttal - Onus of proof - Subjective test of voluntary consent - Inference from facts - Plaintiff establishing absence of consent - Decree granted - Decision of High Court (31/7/84) - reversed - (234/84 - Supreme Court - 15/11/85).

|N. v. K.|

WORDS AND PHRASES

"Duress"

Marriage - Nullity - Consent of wife - Docile acquiesence - Parental pressure - Absence of threat to life, liberty or limb - Decree granted - (234/84 - Supreme Court - 15/11/85).

|N. v. K.|

1 JUDGMENT delivered on the 15th day of November 1985by FINLAY C.J.

2 This is an appeal from the decision of Carroll J. dismissing a petition for a decree of nullity. The Petitioner is the "wife" and the Respondent is the "husband". The Respondent did not resist the petition but gave evidence at the trial. He did not appear nor was he represented on the hearing of the appeal. The learned trial Judge held that there was no collusion. The grounds on which nullity was sought were that the Petitioner was induced to go through the ceremony of marriage by such threats and duress as made the marriage void for absence of real consent.

Facts as found by the learned trial Judge

3 The material facts found by the learned trial Judgewhich are clearly supported by the evidence, may thus besummarised.

4 The Petitioner was aged 19 and the Respondent aged 20 when they went through a ceremony of marriage on the 15th February 1979.

5 They had met in August 1978, immediately after the Petitioner had by mutual agreement broken off an engagement which was the culmination of a three-year friendship, on the grounds that she and her boyfriend, who was approximately her own age, were too young to marry.

6 The Petitioner and Respondent went out on a casual basis and in November 1978 the Petitioner who was then a virgin was persuaded on one occasion to have sexual intercourse. Shortly afterwards the parties ceased to meet each other.

7 By Christmas 1978 the Petitioner realised that she was pregnant, informed her parents who were both extremely upset, and shortly afterwards was brought by her father to visit the home of the Respondent. On their arrival the Respondent was absent, the Petitioner was put intoone room and her father interviewed the Respondent's parents elsewhere informing them of the pregnancy and stating that there were only two alternatives: an abortion or marriage. He dismissed a suggestion of a third choice: that the Petitioner should keep the baby and remain unmarried, stating that if there was a baby there had to be a father. The Petitioner was not present at this discussion, but the learned trial Judge held that she was probably informed by her father of it on the way home after this meeting.

8 The Respondent on his return to the house was informed of the purpose of the visit by his parents and by the Petitioner's father, and then went in to see the Petitioner. What then occurred is thus related in the judgment of Carroll J.:

"When the Respondent came home he was faced in the kitchen with the news. He said he went into the sittingroom and spoke to the Petitioner who was upset and crying. According to his evidence she said:"What will we do?", and he said to her: "I suppose we will get married, it is all we can do", and then he came out and told the Petitioner'sfather they would marry. The Petitioner does not recall this conversation, but I am satisfied it happened in substance."

9 The wedding took place five to six weeks later, all the arrangements having been made by both sets of parents without the intervention of the parties or any interest displayed by them in these arrangements. The parties lived together in the Respondent's family home for about three months after the marriage ceremony, and then the Petitioner returned home on her own. The Respondent came to live with her for a very short time prior to the birth of the baby but left again before the actual birth which occurred on the 14th August 1979, and thereafter ceased to live with the Petitioner or visit her.

10 The parties met by chance approximately 12 months later and decided to try living together again in a rented house. This experiment lasted only for about three months, and the parties have not since had any significant contact with each other, or lived with each other. The Petitioner instituted these proceedings in November 1983.

Inferences drawn by the learned trial Judge from the facts as found

11 The following material inferences were drawn by Carroll J. from the facts as found by her. In one or two instances these conclusions were challenged on the hearing of the appeal, but I am satisfied that they are supported by the evidence and must be accepted by this Court.

12 2 "(1) The Petitioner is a quiet, unassertive girl. She was brought up strictly but was always obedient to her parents.

13 (2) The Petitioner said there was no question of having the baby at home without being married and I accepted this. I am satisfied that at that stage there was only one outcome contemplated by the Petitioner's parents, and that was marriage.

14 (3) The parties would not have got married but for the pregnancy.

15 (4) The Respondent was completely immature and unsuited for marriage. He had no job and no means of supportinga wife and child.

16 (5) The Petitioner was little more than a schoolgirl. She did not see any alternative to getting married. She would not consider an abortion. If she did not get married she believed she would get no support from her parents and would have to leave home.

17 (6) She acquiesced in her parents" wishes from the start. They said marriage was the best thing and she thought they knew what wasbest.

18 (7) She got no counsel or advice on what alternatives she did have, such as adoption or bringing up the child as a single parent.

19 (8) The shock of discovering she was pregnant probably put her into a state where she could not think clearly."

The law

20 The submissions on behalf of the Petitioner in the High Court and in this Court were largely based on the decision of O'Hanlon J. in M.K.(McC) v. McC. 1982 ILRM 277.

21 Carroll J., with one reservation, was prepared toaccept the principles laid down in that decision, but distinguished the instant case from it on the facts. I also am satisfied that the principles laid down in that case are correct. The reservation of Carroll J., which I share, but which does not, in my view, affect the outcome of this case, was that she was not prepared to follow the view that the fact that a decree of nullity had been granted by the ecclesiastical courts of the Catholic Church in McC. v. McC.was a factor to be considered in the decision of the Court.

22 It may well be that the seeking of such a decree soon after a purported marriage and some time before the petition for nullity in the civil courts could, in certain cases, be accepted as evidence corroborating the allegation of an absence of real consent.

23 O'Hanlon J. in his judgment, however, based this conclusion on the provisions of section 13 of the Matrimonial Causes and Marriage Law (Ireland) Amendment Act 1870. The reference in that section to "the principles and rules which the ecclesiastical courtsof Ireland have heretofore acted on and given relief" must, in my view, be taken to refer to the ecclesiastical courts in Ireland established and in operation prior to 1870 and cannot be taken to refer to the current decisions of ecclesiastical courts of the Catholic Church in Ireland. Whilst, therefore, it is true that many of the principles and rules governing the decisions of these ecclesiastical courts coincide with the principles and rules governing decisions in the High Court and in this Court, the fact of such an ecclesiastical decree of nullity cannot of itself be a contributing factor to our decisions.

24 The fundamental ratio decidendi of the decision in McC. v.McC. appears to me, however, to be a rejection of the earlier decisions which restricted the concept of duress in nullity to threats of physical harm or threats falsely based, of other harmful consequences. That decision I accept.

25 The entry into of a valid marriage is not only the making of a contract but is also in law the acquisition of a status. The status thus acquired and the relatedconcept of a family receives special protection from the provisions of the Constitution. Furthermore, the provision of the Constitution prohibiting the enactment of legislation permitting the dissolution of a valid marriage makes the contract of marriage absolutelyirrevocable.

26 Consent to the taking of such a step must, therefore, if the marriage is to be valid, be a fully free exercise of the independent will of theparties.

27 Whilst a court faced with a challenge to the validity of a marriage, based on an absence of real consent, should conduct its enquiry in accordance with defined legal concepts such as duress or, what has been...