R.T. v V.P. (v.T.)

• Jurisdiction: Ireland
• Court: High Court
• Judgment Date: 01 January 1990
• Docket Number: [1987 5M]
• Date: 01 January 1990

R.T. v. v. P. (orse. v. T.)

R.T.

Petitioner

and

V.P. (Orse. V.T.)

Respondent

[1987 5M]

High Court

Husband and wife - Marriage - Nullity - Capacity - Compatibility - Husband's petition - Petition on grounds of respondent's incapacity due to disease of mind - Denial of this ground by respondent - Respondent supported claim for decree on grounds of incompatibility of parties at time of marriage - Whether parties had psychological or psychiatric defect - Whether established principles of common law could be applied to new cases - Whether such development of law improper exercise of legislative function - Whether same principle applied to impotence at time of marriage as ground for nullity as to incapacity to form caring relation ship at time of marriage- Standard of proof- Whether difficulty in establishing incapacity to form caring relation ship justified lowering standard of proof - Whether incapacity to form caring relation ship will generally be in cases where serious mental illness or serious personality disorder established - Whether there might be exceptions where onus of proof could be discharged without serious mental illness or serious personality disorder - Whether onus of proof discharged - Matrimonial Causes and Marriage Law (Ireland) Amendment Act, 1870 (33 & 34 Vic., c. 110), s. 13.

Evidence - Admissibility - Hearsay - Psychiatric evidence - Evidence given by psychiatrist regarding person he never met - Whether such evidence inadmissible.

The parties had married in March, 1984. The petitioner was a widower whose wife had died in 1983. His wife had not worked and the marriage had been very happy. The respondent had lived with a man for some years and had had a child by him but he had died in 1981. The parties were neighbours and a relationship developed after the petitioner had been widowed. A sexual relation-ship continued up to the date of their marriage. The honeymoon was a success. On their return home the respondent started to work in a demanding job requiring long working hours including nights and week-ends. In April, 1984, the respondent had an abortion which upset the petitioner very much. About this time they also had a disagreement about the times and hours the respondent was absent at work. At the end of May the respondent showed signs of illness and strange behaviour. She went to see a consultant psychiatrist and was admitted subsequently to hospital. She returned home in September but did not want to discuss what she wanted to do. She spent most of the time in bed and during the summer did not return home until the small hours of the morning on several occasions. The parties had a row on one such occasion and the petitioner asked the respondent to leave and she left with her child. Several attempts at reconciliation failed.

Dr. Behan, consultant psychiatrist on behalf of the petitioner, stated that he thought that the petitioner was confused by the loss of his first wife at the time of the marriage and failed to understand the respondent and that he was emotionally needy and vulnerable to the respondent at the time. Except in the sexual area the marriage did not work. This witness also gave evidence concerning the respondent. Counsel for the respondent objected to this evidence as hearsay as the witness had never met or examined the respondent.

Dr. Fahy, who gave psychiatric evidence on behalf of the respondent, considered that there was no indication of anything of a disturbed nature in the relationship prior to the marriage. He did not consider the respondent to be suffering from a serious psychotic illness of a chronic nature; considered her capable of sustaining a proper emotional relationship and said that the breakdown of the marriage had been caused by incompatibility between the parties. Dr. Fahy also examined the petitioner and found that he was capable in the ordinary sense of entering into a marriage at the time of his marriage to the respondent. Both parties, in his view, had entered the marriage under a serious misperception as to their suitability but that this did "not imply that either of them had anything basically psychologically or psychiatrically wrong with them".

It was submitted on behalf of the petitioner that the respondent suffered from a degree of mental disorder, namely a propensity to cyclical mood swings and Dr. Behan's evidence was relied upon on this respect. The petitioner also submitted that the parties were incompatible at the time of their marriage and that this alone was a ground for a decree of nullity. It was submitted on behalf of the respondent that she did not suffer from any mental illness or personality disorder but that there was a fundamental incompatibility between the parties such as to amount to an incapacity to maintain a normal marriage relationship and that it was open to the court to decree nullity.

Held by Lardner J., in dismissing the petition, 1, that the common law had developed by the application of established principles to new cases and this judicial activity properly exercised was not an impermissible assumption of the legislative function. Accordingly, a serious incapacity at the time of the marriage to form or maintain a caring marital relationship was an incapacity so fundamental to the existence of a valid marriage, and was so analogous to the physical incapacity of impotence at the time of the marriage, that it was therefore a proper ground for a decree of nullity.

• G. v. G. (1871) L.R. 2 P. & D. 287; Dicta of Kenny J. in S. v. S. (Unreported, Supreme Court, 1st July, 1976); M.E. v. A.E.[1987] I.R. 147; D.C. (D.W.) v. D.W.[1987] I.L.R.M. 58 and W. v. P. (Unreported, High Court, Barrington J., 7th June, 1984) considered. R.S.J. v. J.S.J.[1982] I.L.R.M. 263 and D. v. C.[1984] I.L.R.M. 173 followed. U.F. (U.C.) v. J.C. (Unreported, High Court, Keane J., 24th May, 1987) not followed.

2. That neither of the parties had anything psychologically or psychiatrically wrong with them but having regard to their personalities and temperament they were not well matched or easily compatible and incompatibility in this regard meant difficulty or inability to get on together amounting to mutual intolerance.

3. That the difficulties of proof involved in cases where an incapacity lo form a caring marital relationship is claimed cannot lower the standard of proof which is to establish the case to a high degree of probability.

Dicta of Kenny J. in S. v. S. (Unreported, Supreme Court, 1st July, 1976) applied.

4. That the evidence fell far short of proving the necessary incapacity before a decree of nullity could be granted.

Per Lardner J.: An expert witness might give his opinion upon facts which are either admitted, or proved by himself, or other witnesses in his hearing at the trial, or were matters of common knowledge; as well as upon a hypothesis based thereon, but evidence in relation to a respondent whom he had never met or examined was inadmissible as being based on hearsay.

Cases mentioned in this report:—

B. v. M. (Unreported, High Court, Barrington J., 27th March, 1987).

C(H) v. C. [1921] P. 399; (1921) 90 L.J.P. 345; 125 L.T. 768 sub. nom. Colman (orse Hankey) v. Colman 37 T.L.R. 759.

D.C. (D.W.) v. D.W. [1987] I.L.R.M. 58.

D. v. C. [1984] I.L.R.M. 173.

M.E. v. A.E. [1987] I.R. 147.

U.F. (U.C.) v. J.C. (Unreported, High Court, Keane J., 24th May, 1989).

G. v. G. (1871) L.R. 2 P. & D. 287; 40 L.J.P. & M. 83; 25 L.T. 510; 20 W.R. 103.

R.S.J. v. J.S.J. [1982] I.L.R.M. 263.

McM. v. McM. [1936] I.R. 177.

Napier v. Napier [1915] P. 184; (1915) 84 L.J.P. 177; 113 L.T. 764; 31 T.L.R. 472; 59 Sol. Jo. 560.

R. v. Turner [1975] Q.B. 834; [1975] 2 W.L.R. 56; [1975] 1 All E.R. 70; (1975) 118 S.J. 848; 60 Cr. App. R. 80; [1975] Crim. L.R. 98.

S. v. S. (Unreported, Supreme Court, 1st July, 1976).

W. v. P. (Unreported, High Court, Barrington J., 7th June, 1984).

Matrimonial Petition.

The petition filed in the High Court on the 12th February, 1987, and the citation dated the 25th February, 1987, claimed a decree of nullity on the grounds of the respondent's incapacity due to her mental state and defect of personality to form and sustain a normal marriage relationship. By notice of motion dated the 13th October, 1988, the petitioner sought an order amending the citation. The High Court (Lardner J.) granted liberty to amend the citation on the 21st October, 1988. The citation was amended on the 9th November, 1988, and sought a decree of nullity on the grounds that due to the respective personalities, states of mind and mental conditions of the petitioner and respondent they were unable to enter into and sustain a normal functional marriage relationship with each other. The petition was amended accordingly.

The respondent's amended answer was filed on the 9th December, 1988, and agreed that by virtue of the respective personalities, states of mind and mental conditions of the petitioner and respondent they were unable to enter into and sustain a normal marriage relationship with each other but denied incapacity due to her mental state and defect of personality to form and sustain a normal marriage relationship.

The facts of the case have been summarised in the headnote and are set out fully in the judgment of Lardner J. infra.

The case was heard by the High Court (Lardner J.) on the 31st May and 1st June, 1989.

Cur. adv. vult.

Lardner J.

The petitioner claims a decree of nullity of his marriage with the respondent on the ground that at the time, by reason of her mental state and defects in her personality both before and at the time of the marriage, the respondent was suffering from such disease of the mind that she was incapable of maintaining and sustaining a normal marriage relationship. The respondent by her answer denies that she was incapable of maintaining or sustaining a normal marriage by reason of any such disease or defects of personality. During the hearing she has submitted by her...