P v P

• Jurisdiction: Ireland
• Judgment Date: 25 June 1916
• Date: 25 June 1916
• Court: King's Bench Division (Ireland)

P.

and

P.

(By Amendment M'D.

and

P.).

K. B. Div.

Appeal.

CASES

DETERMINED BY

THE KING'S BENCH DIVISION

OF

THE HIGH COURT OF JUSTICE IN IRELAND,

AND ON APPEAL THEREFROM IN

THE COURT OF APPEAL,

AND BY

THE COURT FOR CROWN CASES RESERVED.

1916.

Nullity of Marriage — Impotence of Husband — Decree of Nullity — Marriage void ab initio — Right of Wife to recover Money paid in Consideration of Marriage — Money spent by Husband — Money applied by Husband to pay off Charge on his Lands — Merger — Right of Wife to stand in shoes of Chargeant paid off.

Where a decree of nullity of marriage is pronounced by the Court on the ground of the impotence of one of the parties, the marriage is null and void ab initio.

Prior to, and in contemplation of, an intended marriage between the plaintif, then M. M'D, (the intended wife), and the defendant, T. P. (the intended husband), a sum of £475 was paid by the plaintiff to the defendant as her marriage portion, and it was agreed that £400 of this sum should be applied in paying off a charge of that amount on the defendant's lands. A ceremony of marriage subsequently took place between the plaintiff and the defendant. Shortly after the ceremony the defendant paid off the charge of £400 out of the £475. The balance of that sum was spent by him while the plaintiff and defendant were living together. Some years after the ceremony the plaintiff presented a petition to the King's Bench Division (Matrimonial) asking for a declaration of nullity of marriage on the ground of the impotence of the defendant. She subsequently issued the writ in the present action, describing herself as M. P. and a married woman, and claiming to recover the sura of £475 as money received by the defendant for her use, a claim being subsequently added that the plaintiff was entitled to a charge on the defendant's lands for £400. After the issue of the writ, but before the action came on for trial, an order was made by the King's Bench Division declaring that the form of marriage “was and is null and void,” on the ground of the impotence of the defendant. The plaintiff then, by leave of the Court, amended the writ of summons by describing herself as M. M'D. and a spinster.

Held, by the Court of Appeal, affirming the decision of the King's Bench Division, that the plaintiff was entitled, as upon a consideration that had failed, to be repaid by the defendant the sum of £400, and was entitled to stand in the place of the chargeant whose charge upon the defendant's lands had been paid off, and that the plaintiff had a good charge on the said lands for this sum of £400.

Held also, that as the effect of the decree of nullity was to make the marriage void ab initio, the plaintiff was to be treated as having been a feme sole at the date of the issue of the writ, and that the amendment of the writ was properly allowed.

Held, by the King's Bench Division, that as regarded the sum of £75 paid to and expended by the defendant while the plaintiff lived with him as his wife, this was a concluded transaction which ought not to be disturbed.

Motion for judgment or a new trial.

On the 17th February, 1909, the plaintiff, then Mary Anne M'D,———had gone through a ceremony of marriage with the defendant, Timothy P——. On the 13th January, 1915, the plaintiff presented a petition to the King's Bench Division (Matrimonial) praying to have the marriage annulled on the ground of the impotence of the defendant. The writ in the present action was issued by the plaintiff on the 2nd February, 1915, and in it she was described as Mary Anne P——, and a married woman. The claim endorsed on the writ was for the sum of £475, being moneys paid to and received by the defendant for the use of, and on behalf of, the plaintiff.

On the 11th May, 1915, a decree was pronounced by the King's Bench Division (Matrimonial) in the following terms:—

“The judge being of opinion that it was needful in the administration of justice that the evidence in this cause should be taken in camera, and having taken the oral evidence of the witnesses produced on behalf of the said petitioner … and on behalf of the said respondent, and having heard counsel thereon on behalf of the said petitioner and the said respondent, found:—1. That at the date of the ceremony of marriage between the petitioner and respondent, the respondent was, and still is, incapable of the act of generation. 2. That said incapacity cannot be removed or cured by art or skill. 3. That the petitioner is a virgin. 4. That at the date aforesaid she had not and still has not any impediment on her part to the consummation of the marriage. And thereupon the judge in open Court by his final decree pronounced and adjudged that the form of marriage between the petitioner and the said Timothy P——was and is null and void, and that the petitioner (Mary Anne P———, otherwise M'D——) is free from all bond of marriage with the said respondent (Timothy P———).”

On the 2nd June, 1915, the writ of summons in the present action was, by leave of the Court, amended by describing the plaintiff as Mary Anne M'D———, and a spinster. On the same day a statement of claim was delivered, which set out:—1. That in the month of February, 1909, an agreement was entered into between the plaintiff and the defendant, whereby the plaintiff, at the request of the defendant, agreed to marry the defendant, the said marriage to be binding and effectual and capable of consummation, and in consideration of the said marriage the plaintiff agreed to pay to the defendant the sum of £475 as her marriage portion. 2. That the defendant, on the 17th February, 1909, went through a ceremony of marriage with the plaintiff in fulfilment of the said agreement, and immediately prior to the ceremony and in pursuance of the agreement mentioned in paragraph 1, the plaintiff caused to be paid to the defendant, out of the plaintiff's moneys, the sum of £375 in cash, and in the month of August, 1910, the plaintiff caused to be paid to the defendant the further sum of £100, out of the plaintiff's moneys, making in all £475, in accordance with the agreement mentioned in paragraph 1 of the statement of claim. 3. That on the 11th May, 1915, by a decree pronounced in a suit instituted against the defendant by the plaintiff, entitled “In the High Court of Justice in Ireland, King's Bench Division (Matrimonial),” between Mary Anne M'D———(falsely called P———), petitioner, and Timothy P——, respondent, the said ceremony of marriage mentioned in paragraph 2 was declared null and void on the ground of impotence on the part of the defendant, and his incapacity to consummate the same. By paragraph 4 the plaintiff claimed payment of the said sum of £475 as money received by the defendant for the use of the plaintiff.

The defendant delivered a defence which, in addition to formal traverses of the averments in the statement of claim, and a plea of the Statute of Frauds, set out, as further and alternative defences, that, admitting for the purposes of such defences that the defendant did receive the said sum of £475, he gave good and valuable consideration to the plaintiff therefor; that the giving to and actual receipt by him of the said sum constituted in law a good and valid gift of the same; that the said sum was agreed to be paid to the defendant in consideration of the celebration between the plaintiff and the defendant of a lawful marriage, and that the marriage was a lawful marriage, and the plaintiff became upon the time of the celebration of the said marriage the lawful wife of the defendant, and continued so down to the 11th May, 1915, the date when the decree in the matrimonial cause was pronounced; that the marriage between the plaintiff and defendant was not a void marriage, but a marriage voidable at the election of the plaintiff; that the sums of £375 and £100 were paid to the defendant by the plaintiff absolutely, without reserving any estate, right, or interest therein for the plaintiif. Paragraph 11 alleged that the sum of £100 paid by the plaintiff to the defendant in the month of August, 1910, was paid over to the defendant absolutely by the plaintiff, although the plaintiff at the said date alleged that the marriage between the plaintiff and the defendant had not been consummated. Paragraph 12 was as follows:— “The defendant further says that, prior to the date of the marriage between the plaintiff and defendant, the plaintiif was informed by the defendant that the defendant's sister was, under the will of the defendant's father, entitled to a charge of £400 as her portion upon the farms of the defendant, and upon the treaty for the marriage between the plaintiff and defendant it was agreed between the plaintiff and defendant that the said portion of £400 payable to the defendant's sister should be paid to the defendant's sister, and discharged out of the said sum of £475, the plaintiff's marriage portion, and the said portion of £400 was, with the knowledge of the plaintiff, in pursuance of the said agreement, paid by the defendant to the defendant's sister out of the said respective sums of £375 and £100, when the same were paid by the plaintiff to the defendant.”

The plaintiff in her reply joined issue on the defence, and further pleaded, in reply to paragraph 11, that at the time of the payment of the said sum of £100 she did not know that the defendant was incapable of consummating the marriage; and in reply to paragraph 12 she denied that the sum of £400 was to her knowledge paid to the defendant's sister out of the said sums of £375 and £100, and that if so applied it was not in pursuance of any agreement to which the plaintiff was a party. She further submitted that the allegations in the said paragraph furnished no defence to the plaintiff's claim.

The action was tried before Kenny J., without a jury, at Clonmel Assizes, on the 7th July, 1915. The material portion of the plaintiff's evidence was as follows:— “My father died several years...