P.F. v G. O'M. (otherwise G.F.) (Nullity: Consent)

• Jurisdiction: Ireland
• Judge: Mrs Justice McGuinness
• Judgment Date: 28 November 2000
• Neutral Citation: [2000] IESC 81
• Court: Supreme Court
• Docket Number: [S.C.,Record No. 160.99
• Date: 28 November 2000

[2000] IESC 81

The Supreme Court

Murray, J.

McGuinness, J.

Geoghegan, J.

Record No. 160.99

F (P) v. O'M (G) (ORSE F(G))

Between

P.F.

Appellant/Petitioner

and

G. O'M. (Orse G. F.)

Respondent

Citations:

HAY V O'GRADY 1992 1 IR 210

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

S V S UNREP SUPREME 1.7.1976 1976/9/1287

BRIGGS V MORGAN 1820 3 PHILL ECC 325

MOSS V MOSS (ORSE ARCHER) 1897 P 263

N (ORSE K) V K 1985 IR 733

MURRAY V IRELAND 1985 IR 532

B (D) (ORSE O'R) V O'R 1991 1 IR 289

J (M) V J (C) UNREP MCKENZIE EX-TEMP 21.2.1991

G V BORD UCHTALA 1980 IR 32

CONSTITUTION ART 41.3

R V MILLIS 10 CL & F 534

USHER V USHER 1912 2 IR 445

C (ORSE R) V C 1921 P 399

NAPIER V NAPIER 1915 P 184

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

D V C 1984 ILRM 173

F (U) (ORSE C (U)) V C (J) 1991 2 IR 330

CONSTITUTION ART 41

FAMILY LAW (DIVORCE) ACT 1996

SHATTER FAMILY LAW 189–190

SWIFT V KELLY 1835 3 KNAPP 257

WAKEFIELD V MCKAY 1 PHILLIM 134

EWING V WHEATLEY 2 HAGG CONS 175

SULLIVAN V SULLIVAN 2 HAGG CONS 238

BISHOP ON MARRIAGE & DIVORCE (1891) (NEW YORK)

CONSTITUTION ART 41.3.1

F V L (ORSE F) 1991 1 IR 40

MATRIMONIAL CAUSES & MARRIAGE LAW (IRL) (AMDT) ACT 1870 S27

Synopsis

Family Law

Grounds of nullity of marriage; respondent had conducted a sexual relationship with another both prior to and after her marriage to petitioner; petitioner would not have consented to marriage had he known of affair; High Court had refused petition for a decree of nullity; petitioner appeals; whether non-disclosure of unfaithfulness before or during marriage is capable of vitiating full, free and informed consent to marriage such as to sustain a decree of nullity; High Court had exercised its discretion not to make an order as to costs; respondent cross-appeals as to costs; s. 27, Martrimonial Causes and Marriage Law (Ireland) Amendment Act, 1870.

Held: Appeal dismissed; cross-appeal dismissed.

P.F. v. G. O'M - Supreme Court: Murray J., McGuinness J., Geoghegan J. - 28/11/2000 - [2001] 3 IR 1

The petitioner had sought a decree of nullity in respect of a marriage entered into with the respondent. The petitioner contended that the respondent had an affair with a third party both before and during the marriage and that had he known of this he would not have married the respondent and thus his consent to the marriage was not full, free and informed. In the High Court Mr. Justice O'Higgins held that while the it was accepted that the petitioner would not have married the respondent had he known of her affair with another man the evidence did not go so far as to establish that his consent to marriage was not full, free and informed. The petitioner appealed to the Supreme Court. Mrs. Justice McGuinness, delivering judgment (nem. diss.) held that adultery, being misconduct during the course of marriage, was a ground for judicial separation but not a grounds for nullity. The formulation of an informed consent put forward by the petitioner would appear to cover almost any situation involving a lack of relevant information at the time of the marriage concerning the conduct, character or circumstances of the respondent. The grounds for a grant of nullity could not be extended to cover concealed misconduct and other forms of misrepresentation. The appeal would be dismissed. The High Court order making no order as to costs would be upheld.

1 Judgment of Mrs Justice McGuinness delivered the 28th day of November 2000 [Nem Diss]

2 This is an appeal from the judgment and order of O' Higgins J. made on the 26th March 1999 whereby the High Court Judge refused the petition for a decree of nullity presented by the Petitioner. Having heard Counsel on both sides O' Higgins J. made no order as to costs. The Respondent has cross appealed on the issue of costs only.

3 The Petitioner and the Respondent went through a ceremony of marriage according to the rites of the Roman Catholic Church in December 1987. Following the marriage they lived together in Co. Dublin. They have one child who was born in September 1989 and the Petitioner commenced proceedings for judicial separation in the Circuit Court in Dublin on the 17th May 1995. The parties have lived separate and apart since in or about October 1995. The Petitioner commenced his nullity proceedings by petition dated 31st January 1996. By order of the Master of the High Court dated 16th October 1996 seventeen issues, a number of which related to the capacity of the parties to enter into and sustain a normal marriage relationship, were ordered to be tried. However, in the course of the hearing in the High Court it was indicated by Counsel for the Applicant that he was relying on one ground only. That ground concerned whether, in the circumstances of the case, the Petitioner gave a full free and informed consent to the marriage. This was also the sole ground upon which the appeal before this Court was argued.

The evidence

4 The learned High Court judge heard extensive evidence from seventeen witnesses over a period of eight days. As he pointed out in his judgment (at pages 1 to 2) a great deal of the evidence was concerned with different versions of events given by the witnesses as to matters that occurred after the marriage took place. This evidence was largely irrelevant to the actual grounds for nullity. It was directed to issues of credibility. The relevant evidence is summarised in the judgment of O' Higgins J. at pages 2 to 3 of his judgment as follows:-

"The couple met in 1984 when P.F. was 20 and G.O'M was 21. They had a happy and relatively uneventful courtship. They commenced having sexual intercourse about six months after they met. They became engaged at Christmas 1986 and were married in December 1987. They purchased a house in the summer of 1987. P.F. lived there and G.O'M joined him at weekends. They were, by any standards, a very good looking couple. He was a member of a successful business family and she had an outgoing vivacious personality. The marriage was initially very happy but Mr F. suspected a relationship between G.O'M and a certain Mr K. for whom she had worked prior to the marriage and for whom she continued to work after she became pregnant. A child was born in September 1989. It is unnecessary in these proceedings to analyse the history of the marriage as the issue in this case is as to whether G.O'M was having an affair with Mr K. at the time when she was engaged to Mr F. and, if there was such an affair, whether there was full and free consent to the marriage on the part of Mr F. It is fair to say, however, that his suspicions about her relationship with Mr K. cast some cloud on the marriage, and G.O'M regarded P.F. as being jealous and over-possessive. There are allegations and counter-allegations of sporadic unpleasant scenes in the marriage which G.O'M attributed to his excessive drinking and staying out late. In 1991 they moved house to an area not far away in South County Dublin. G.O'M says that her husband's conduct deteriorated and that he frequently came home in the early hours of the morning. However, there were good times in the marriage even then. In the month of August 1993, Mr K's wife phoned G.O'M and Mr F. to tell them that she suspected her husband Mr K. was having an affair with G.O'M. It is alleged also that she sent nasty communications to G.O'M and to the neighbours concerning her husband's suspected adultery with G.O'M. Around this time both parties sought medical help and G.O'M volunteered to sever any contact with Mr K. However, after a successful few months, things began to deteriorate again and the relationship was stormy and unhappy. Mr F. moved out of the marital bedroom sometime between September 1994 and January 1995 and lived in the attic. He eventually left the house in October 1995. He commenced proceedings for judicial separation in the Circuit Court in May and the grounds were, inter alia, the adultery of his wife with Mr K.

The contention of the Petitioner is straightforward. He claims that during the time of his engagement to G.O'M she was involved in an affair with Mr K. Had he known this he would not have married G.O.'M. In the circumstances he claims that his consent to the marriage was not fully informed."

5 Throughout the trial both the Respondent and Mr.K. denied in evidence that they had any sexual relationship either before or after the marriage.

6 The learned judge then goes on to analyse the evidence in regard to the wife's relationship with Mr.K. in considerable detail. At page 12 of his judgment he reaches the following conclusion on the evidence:

"The cumulative effect of the findings of fact in relation to the five matters mentioned above lead me to the firm conclusion that the Respondent had an affair with Mr.K. before and after the marriage."

7 There is no doubt that there was sufficient evidence before the High Court judge- evidence which he had heard with great patience and analysed with care-to enable him to reach this conclusion. The Respondent has not appealed against it. In any event, this Court would not in any way interfere with his conclusion on the evidence. (Hav v. O'Grady [1992]IR 210)

8 Having surveyed the law which had been opened to him, and in particular the judgment of Blayney J, in this Court in the case of M.O'M (orse O' C) v B.O' C [1996] 1 IR208,O' Higgins J. concluded:-

"In my view, the failure to disclose factual information concerning the wilful conduct of one of the parties is not the type of circumstances contemplated in the decision of Blayney J. The nondisclosure of inappropriate behaviour prior to or during the courtship is not a ground for nullity. In my view, it is not incumbent on the parties to give a history of their good or bad behaviour prior to getting married in order to contract a valid marriage. In this case the parties had a courtship which...