S (H) v S (J)

• Jurisdiction: Ireland
• Court: Supreme Court
• Judge: FINLAY C.J.,McCarthy J.,O'FLAHERTY J.,EGAN J.
• Judgment Date: 03 April 1992
• Neutral Citation: 1992 WJSC-SC 950
• Docket Number: 26/91
• Date: 03 April 1992

1992 WJSC-SC 950

THE SUPREME COURT

Finlay C.J.

Hederman J.

McCarthy J.

O'Flaherty J.

Egan J.

26/91

S (H) v. S (J)

BETWEEN

H. S.

Petitioner

and

J. S.

Respondent

Citations:

DALRYMPLE V DALRYMPLE 1811 2 HAGG CR 54

ORLANDI V CASTELLI 1961 SC 113

MCM V MCM 1936 IR 177

RSC O.36 r4

Synopsis:

MARRIAGE

Nullity

Petition - Grounds - Immaturity - Civil marriage - Wife aged 21 years - Foreign husband - Concealment from wife's family - Intention of parties to facilitate early divorce - Petition dismissed - (26/91 - Supreme Court - 3/4/92)

|H. v. S.|

1 JUDGMENT delivered on the 3rd day of April 1992by FINLAY C.J.

2 This is an appeal by the Petitioner against the dismiss, by order of the High Court of the 19th December 1990, made by Carroll J., of her petition seeking a declaration of nullity of a purported marriage entered into between the Petitioner and the Respondent on the 9th August1989.

3 By order of the Master dated the 13th December 1989, the questions to be tried on the hearing of the petition were as follows:

4 2 "1. Did the parties fail to understand the true nature, purpose, requirements and consequences of a normal maritalrelationship?

5 2. Did the parties intend to sustain or enter into a lasting marital relationship, and did they lack the ability to sustain or maintain or enter into such a relationship?

6 3. Did the Petitioner suffer from a level of immaturity which prevented her from giving a true or valid consent to the purportedmarriage?

7 And such further or other question or questions as to the trial judge shall seem fit."

8 The Petition was heard on oral evidence and the Respondent did not appear and did not call any witness. The hearing took place on the 12th December 1990, and reserved judgment was delivered by Carroll J. on the 19th December 1990.

9 In the course of that judgment the learned trialjudge answered the questions submitted to her pursuant to the order of the Master, as follows:

10 2 "1. The answer to that is that there is no evidence to prove that either party did not know what are the aspects of a normal marital relationship. The Petitioner grew up in a happy loving home with the example of her parents before her and had the benefit of a normal secondary education. I have no evidence as to what the Respondent's understanding was about a normal marital relationship.

11 2. They did not intend to sustain a lasting marital relationship if things did not work out between them. There is no evidence that either party lacked the ability to sustain or maintain or enter into a lasting marital relationship. By all accounts they are both young, sexually active, attractive people. Their different backgrounds and nationality are not a bar to a normal marital relationship.

12 3. In my opinion the Petitioner did not suffer from a level of immaturity which prevented her giving a true and valid consent. She was twenty-one at the date of the marriage.She had been earning her living since leaving school and performed well at her job. She had been out with lots of people. She decided to have a sexual relationship with the Respondent and to renew it a year later. She wanted her own way and she got it. She could not be described as mature but that is not the criterion. Her immaturity was not of such a degree as to interfere with her ability to form a marriage contract. So the answer to the question is no."

Grounds of appeal

13 The grounds of appeal were as follows:

14 2 "1. That the learned trial judge did not give proper weight or consideration to the evidence of the Plaintiff/Appellant and the witnesses called by the Plaintiff/Appellant.

15 2. That the learned trial judge erred in fact and in law in holding that the Petitioner/Appellant intended to enter into a valid civilmarriage.

16 3. That the learned trial judge erred in fact in holding that the Petitioner/Appellant intended to obtain a divorce only in theevent of her marriage not working out satisfactorily.

17 4. That the learned trial judge erred in fact and in law in failing to find that the Petitioner/Appellant suffered from a level of immaturity which prevented her giving a true and valid consent to the said marriage.

18 5. That the learned trial judge erred in fact and in law in failing to find that the Petitioner/Appellant lacked the capacity to enter into a lasting marital relationship.

19 6. That the learned trial judge erred in fact and in law in failing to find that the parties did not understand the true nature or purpose, requirements and consequences of a normal maritalrelationship."

20 As these grounds indicated, a very substantial part of the submissions made on the appeal on behalf of the Petitioner were really directed towards the findings made by the learned trial judge of fact, and the inferences which she drew from them. In particular, it was submitted that the learned trial judge had failed to have any regard to the evidence of the doctor who was called in the case, and also that the emphasis which she placedon various aspects of the case was in error.

21 In addition, however, it was submitted that once the learned trial judge found as she did that the parties "did not intend to sustain a lasting marital relationship if things did not work out between them", as a matter of law it was submitted that the marriage was anullity.

22 I have carefully considered these submissions and I have come to the following conclusions. Firstly, to deal with the issue of law raised though not, strictly speaking, within the grounds of appeal, I am satisfied that the contention that a party entering into a contract of marriage with the intention, whether expressed or not, of terminating that marriage by divorce at a later stage should both the parties to it not want it to continue, is entering into a valid marriage according to the law of Ireland, and cannot, upon subsequent proof of that attitude or intention be entitled to a declaration of nullity.

23 There are a great number of persons whose religious convictions or moral code would raise no bar to obtaining a divorce in an appropriate jurisdiction in the event of a marriage not proving to be successful, and it cannot, in my view, be said that such persons by reason of that particular belief, and even by reason of an expressed intention that in the event of the marriage not working out a divorce would be availed of, have not entered into a valid marriage.

24 With regard to the other issues concerning the findings made by the learned trial judge, it is necessary, I think, to quote them in their essence. In the course of her judgment Carroll J. stated asfollows:

"While the case was made in court that they married only to get divorced when he came to the States, I do not believe it can be reduced to such simplistic terms. From several things she said, I am of opinion that the reality was different. When talking about the ceremony, she said she wanted him to me an what he was doing. She didsay he knew what he was doing although he did not understand the words. She also said she hoped they would go together for a long time and if it at all worked out they would be really married, meaning in a Catholic church. She reckoned if they got married in a registry office she could get divorced. She now sees it as a rash decision."

25 I am quite prepared to accept that they agreed to marry on the basis that they would divorce if it did not work out. Indeed in the petition the reference is to obtaining a divorce if so required. I do not believe that they married only on the understanding that they would never have sexual intercourse and that the sole purpose was for him to go to the States and that when they got there they would divorce. I believe that the Petitioner was infatuated with the Respondent. He was prepared to follow her and live with her. He was prepared to marry her if divorce was an option. She was prepared to marry him with the possibility of divorce but she hoped it would go on a long time and eventually they would really get married in a Catholic church.

26 .......

27 The marriage before the Registrar was a civil marriage. That civil marriage cannot be considered a nullity because of the Petitioner'sreligious beliefs. If she intended to consent to a civil marriage her religious beliefs do not enter into it. In my opinion she intended to enter into a valid civil marriage which would enable her to claim the Respondent in the United States as her husband. She wanted him with her and I have no doubt she wanted to continue the sexual relationship with him. She made an irresponsible decision. Whilst it was presented in court as an impulsive decision, she had to wait a week to carry it out and therefore had a week to reflect. She was infatuated - but infatuation which results in marriage is not a ground for nullity. An agreement to divorce if things do not work out is not a ground for nullity. Immaturity is not a ground for nullity unless it exists to such a degree as to prevent a person giving full consent. Notwithstanding the Petitioner's irresponsibility, she was capable of contracting a valid marriage. There was no incapacity to form and sustain a normal marriage relationship. Nothing Dr. _________ said makes me believe the reality of the situation was other than I have described above."

28 I am satisfied that the findings of fact made in this portion of the judgment which I have quoted wereall well supported on the evidence before the learned trial judge. The whole case turned, of course, on the attitude and real understanding of the Petitioner. It seems to me extremely improbable that any court could reach any decision on the question of the nullity of this marriage with safety, based on the Petitioner's account of what she thought or believed the Respondent's understanding or attitude was. Undoubtedly, that belief and his statements, in so far as the Petitioner gave evidence of them, form part of the historical background of the...