S v S

• Jurisdiction: Ireland
• Judge: HENCHY J.,GRIFFIN J.,KENNYJ.
• Judgment Date: 01 January 1977
• Neutral Citation: 1976 WJSC-SC 1287
• Date: 01 January 1977
• Court: Supreme Court

1976 WJSC-SC 1287

THE SUPREME COURT

HENCHY J.

GRIFFIN J.

KENNY J.

(1-1975)

S v. S

S.

v.

S.

1 HENCHY J.DELIVERED THE 1st JULY 1976.

2 The short-lived marital union between the parties in this case was but a marriage in name only. It does not seem to have been supported by any emotional or other affinity on the part of the husband.

3 The marriage took place in July 1969. They had met two years earlier at a dance. The friendship that sprang up between them ripened quickly into intimacy. For a year and a half they went out together every night of the week. Then, for six months before the marriage, they saw each other every night of the week except Tuesday and Thursday - omitting those nights because they felt they were seeing too much of each other. They also used to go away on camping weekends, and on those weekends they had sexual intercourse with coitus interruptus on about twenty five occasions. There is nothing in the evidence to suggest any lack on his part before the marriage of emotional or sexual commitment to her.

4 The marriage proved a sad anti-climax for the wife. As a husband he turned out to be cold, unaffectionate, alienated. Themarriage was never consummated. They had an eight-day honeymoon in Ostend, but, although they slept in the same bed, he showed a total sexual disinterest in her. It was the same story when they returned from the honeymoon to the matrimonial home where they slept in the samebed.

5 For six months they lived together in disharmony, and then he left her for good. His sexual disinterest in her was apparently no perverse affectation. The wife says she once tried to get him to effect sexual intercourse with her, but he proved unresponsive. Shortly after the marriage he told her that he had no affection for her, that in fact she revolted him, that he had no interest in founding a family, that the marriage was a mistake, and that the only reason he went through with it was because the arrangements were too far advanced and he was too much of a coward to break off the engagement.

6 What the wife discovered after the marriage was that some weeks before the marriage he had met the woman with whom he has since gone to live (and whom, for convenience, I shall refer to as the other woman). The wife learned from him that both before and after the marriage he had sexual intercourse with the other woman. According to the wife, he claimed to have spent the night before the marriage with the other woman and to have had sexual intercourse with her that night. It appears to be the fact that shortly after returning from the honeymoon, he started to go out at night with this woman. Headmitted to the wife that he was in love with the other woman. Before he turned his back on this pseudo-marriage in January 1970, by leaving to go off to live with the other woman, he disclosed that the other woman had been expecting a child by him and had just then "lost it inEngland".

7 In the High Court, where this petition by the wife for annulment of the marriage was dismissed by Murnaghan J., the case for the wife was put on the basis that she had been induced by fraud to marry the husband. The trial judge rejected that submission. So would I. Undoubtedly, if the wife had known of the husband's relations with the other woman, or of his emotional and sexual attitude to herself, she would not have married him. But that is a far cry from saying that the marriage was born of fraud. We have had only the evidence of the wife. We have no reliable insight into the mental processes that prompted the husband to go through with this marriage to a wife whom he did not love and who, in fact, revolted him. We only have his statement later to the wife that he lacked the courage to call off the marriage at that late stage. There is no evidence that the husband made any overt misrepresentation before the marriage, and such silence or non-disclosure as is to be attributed to him could not, without indulging in pure speculation, be said to amount to a misrepresentation of the true state of things from his point ofview.There is no doubt but that the wife entered into the marriage on the inducement of a concealed falsity, but that falsity (by which I mean falsity as to emotional and sexual capacity on the part of the husband) may or may not have been known to the husband at the time of the marriage. For all we know, he may have genuinely believed or hoped that he would be able to make the marriage a success. Because of that, fraud must be discounted.

8 In this Court the wife's case has been argued primarily on the basis that the marriage should be annulled because of the husband's sexual impotence vis-à-vis her.

9 The husband has not taken any part in these proceedings, so we have only the wife's version of things. However, there is no suggestion of collusion, and the trial judge, who saw and heard the wife in the witness box, apart from expressing doubt as to the correctness of her version of one conversation she had with the husband, does not question her veracity.

10 I find the evidence coercive of the conclusion that while the husband's failure to consummate the marriage was not due to any general sexual incompetence - his previous sexual relations with the wife and his sexual relations with the other woman are proof of that - it was the result of an obliteration of his sexual capacity with her from the time of the marriage or, possibly from the time shortly beforethe marriage when he became intimate with the other woman. This incapacity would seem to have been a corollary of his attachment to the other woman. If it is not viewed as a genuine incapacity, and not an affected and willed abstention, this husband of twenty three would have to be credited with powers of sexual restraint with this wife of twenty-two who shared his bed nightly, which are completely belied by his sexual activity otherwise - with herself before he had met the other woman, and with the other woman before, during and after the period of six months when he lived with the wife.

11 The evidence given by the wife does not, to me, give a picture of a man who was perversely and willfully living out a resolution not to have sexual relations with her. I find no suggestion that he was subjugating his libido to his will. On the contrary, her evidence conveys an impression of a total absence of libido on his part towards her during the period when they lived together. For example, when she tells of an effort she made to get him to have sexual intercourse with her, she does not say that he in any way repulsed her advances. She simply says that "it was no good". Her evidence shows that he made clear to her that he had no affection for her, that she "made him sick". His failure to consummate the marriage would seem to have been a part of that revulsion. We have no medical or other expert evidence to identify the psychological or other factors that producedhiscondition, but the condition itself seems to have been one of sexual impotence in relation to the wife during the period when they lived together ostensibly as husband and wife.

12 That being so, the matrimonial law governing the position is not in doubt. Where a husband, while not generally impotent, is unable to consummate the marriage because of impotence vis-à-vis the wife (or impotentia quoad...