U.F. (Otherwise U.C.) v J.C.

• Jurisdiction: Ireland
• Judgment Date: 01 January 1991
• Date: 01 January 1991
• Docket Number: [1987 No. 39M; S.C. No. 229 of 1989]
• Court: Supreme Court

High Court

Supreme Court

[1987 No. 39M; S.C. No. 229 of 1989]

U.F. (Orse. U.C.) v. J.C.

U.F. (orse. U.C.)

Petitioner

and

J.C.

Respondent

Cases mentioned in this report:—

Briggs v. Morgan (1820) 3 Phill. Ecc. 325.

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

C. (orse G.) v. C. (Unreported, High Court, MacKenzie J., October, 1989, ex tempore).

C. (orse H.) v. C. [1921] P. 399; (1921) 90 L.J.P. 345.

Cuno v. Cuno (1873) 2 H.L. Sc 300.

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

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

E.P. v. M.C. [1985] I.L.R.M. 34.

F. v. F. (Unreported, High Court, Barron J., 22nd June, 1988).

Griffith v. Griffith [1944] I.R. 35; (1944) 78 I.L.T.R. 95.

K. v. K. (Unreported, High Court, O'Keeffe P., 16th February, 1971).

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

M. (orse O.) v. O. (Unreported, High Court, Hamilton J., 26th January, 1984).

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

Maher v. The Attorney General [1973] I.R. 140; (1973) 108 I.L.T.R. 41.

M. (orse G.) v. M. [1986] I.L.R.M. 515.

Napier v. Napier [1915] P. 184; (1915) 84 L.J.P. 177; 113 L.T. 764.

N. (orse K.) v. K. [1985] I.R. 733; [1986] I.L.R.M. 75.

P.C. (orse O'B.) v. D.O'B. (Unreported, High Court, Carroll J., 2nd October, 1985).

R.M. v. M.M. (1941) 76 I.L.T.R. 165.

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

R.T. v. V.P. (orse V.T.) [1990] 1 I.R. 545.

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

Swift v. Kelly (1835) 3 Kn. 257.

The Queen v. Millis (1843) 10 Cl. and F. 534.

The State (Nicolaou) v. An Bord Uchtála [1966] I.R. 567; (1966) 102 I.L.T.R. 1.

Ussher v. Ussher [1912] 2 I.R. 445; (1912) 46 I.L.T.R. 109.

W. (orse C.) v. C. [1989] I.R. 696.

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

Family law - Husband and wife - Nullity - Petitioning wife - Husband's inherent and unalterable homosexual nature - Petitioner unaware of respondent's homosexuality at time of marriage - Whether petitioner can obtain annulment when marriage is in all other respects valid - Incapacity due to mental illness - Whether mental illness a necessary precondition to relief - Fraud or mistake as a ground for annulment - Analogy between the question of impotence and the incapacity to enter into and sustain a proper marital relationship - Burden of proof required of petitioner - Whether relevant to determination of permissible grounds for nullity - Matrimonial Causes and Marriage Law (Ireland) Amendment Act, 1870 (33 & 34 Vict., c. 110), s. 13 - Courts (Supplemental Provisions) Act, 1961 (No. 39) - Constitution of Ireland, 1937, Articles 15.2.1, 41.3 and 50.

Petition.

The relevant facts have been summarised in the headnote and appear fully in the judgment of Keane J., post.

The petitioner issued a petition on the 25th November, 1987. She was given liberty to issue a citation on the respondent on the 11th December, 1987. The respondent did not enter an appearance at any stage of the proceedings. The matter came before the Master of the High Court on the 15th June, 1988, pursuant to notice of motion of the 10th May, 1988, seeking an order fixing the time and mode of trial and settling the issues. The petition came on for hearing before the High Court (Keane J.) on the 2nd May, 1989.

The petitioner appealed against the judgment and order of the High Court to the Supreme Court and the appeal was heard on the 26th June, 1990.

The petitioning wife and respondent husband were married when they were 20 and 22 years of age respectively. There was one child of the marriage. The petitioner presented a petition to the High Court seeking a declaration that the marriage was null and void on the ground that at the date of the parties' marriage and prior and subsequent thereto, the respondent was a homosexual and had homosexual relationships and by reason of his homosexual nature and temperament lacked the capacity to form or to maintain a normal marital relationship with the petitioner and/or was unable to understand fully the nature, purpose and consequence of the marriage contract.

The parties had normal sexual relations with each other before their marriage and the petitioner did not suspect her husband's homosexual nature. The respondent had a very close friendship with another man, B., which the petitioner was uneasy about. In addition the petitioner alleged that the respondent deliberately picked rows with her so that he could use it as an excuse to sleep in a different bedroom. On one occasion the respondent insisted on giving B. a lift to the airport when he was going on holiday. The respondent went with B. the night before his departure on holiday and stayed overnight. Following this incident the petitioner then left the matrimonial home with her son. The petitioner confided her problems in a woman friend, M.C., who also knew the respondent and M.C. told her that the respondent had been a homosexual for many years.

When the petitioner confronted the respondent with this he admitted the truth of the matter. He did not enter an appearance to the proceedings and intimated through his solicitor that he did not wish to defend the petition.

Held by Keane J., in refusing the petition, 1, that the petition had been presented in good faith by the petitioner without any element of collusion with the respondent.

2. That the respondent was at the time of the marriage a practising homosexual, a condition which he concealed from the petitioner who was completely unaware of this side of his nature.

3. That both the petitioner and the respondent were at the time of the marriage intelligent adults who fully understood the nature, purpose and consequence of the marriage contract and neither of whom was at the time of the marriage suffering from any form of mental illness.

4. That no finding would be made as to whether the respondent was at the time of the marriage incapable by virtue of his homosexual nature of forming or maintaining a normal marital relationship with the petitioner, since no such ground of nullity existed in our law.

5. That the facts of the case did not entitle the petitioner to succeed on any ground of fraud or mistake.

Ussher v. Ussher [1912] 2 I.R. 445 applied. M. (orse. O.) v. O. (Unreported, High Court, Hamilton J., 26th January, 1985) and S. v. S. (Unreported, Supreme Court, 1st July, 1976) distinguished.

Per curiam: That to formulate new grounds for nullity in the manner suggested in recent decisions of the High Court constituted an impermissible assumption of the legislative functions which Article 15, s. 2, sub-s. 1 of the Constitution vested exclusively in the Oireachtas.

Maher v. The Attorney General [1973] I.R. 140 and M. (orse. G.) v. M. [1986] I.L.R.M. 515 applied.

Per curiam: That the development by the courts of the law of nullity in a fragmented and ad hocfashion was particularly undesirable and that it was unsatisfactory that questions of status should be shrouded in uncertainty.

Upon the petitioner's appeal to the Supreme Court from the judgment and order of the High Court, it was

Held by the Supreme Court (Finlay C.J ., Griffin, Hederman, McCarthy and O'Flaherty JJ.), in allowing the petitioner's appeal and granting a decree of nullity, 1, that the capacity of one of the parties, by virtue of a homosexual nature, to form or maintain a normal marital relationship with the other party was a valid ground for nullity.

2. That, on the facts and evidence as accepted by the learned trial judge, the only reasonable conclusion which could be drawn was that the respondent in this case was incapable of forming such a relationship.

3. That the trial judge's finding that the only circumstance to which the courts could or should have regard in framing new rules for the application of the jurisdiction of nullity was advances made in psychological medicine, was a misinterpretation of the dicta of Kenny J. in S. v. S. (Unreported, Supreme Court, 1st July, 1976), and constituted an unsound principle with regard to the jurisdiction of the courts in nullity cases.

• S. v. S. (Unreported, Supreme Court, 1st July, 1976) explained and R.S.J. v. J.S.J. [1982] I.L.R.M. 263 applied.

4. That the analogy drawn between the question of impotence and the incapacity to enter into and sustain a proper marital relationship would appear to be valid not only in cases where that incapacity arose from psychiatric or mental illness so recognised or defined, but also in cases where it arose from some other inherent quality or characteristic of an individual's nature or personality which could not be said to be voluntary or self-induced.

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

5. That the recognition by psychiatrists of the exitence of a homosexual nature and inclination, which was not susceptible to being changed, made it a necessary and permissible development of the law of nullity. That, in certain circumstances, the existence in one party to a marriage of an inherent and unalterable homosexual nature could form a proper legal ground for annulling the marriage at the instance of the other party to the marriage in the case, at least, where that party had no knowledge of the existence of the homosexual nature.

• N. (orse K.) v. K. [1985] I.R. 733 approved.

6. That the issue of the onus of proof necessary for a petitioner to establish the facts in a claim for nullity based on any grounds was not relevant to a determination of what the permissible grounds for nullity were.

7. That as the petitioner had established the ground of nullity, no question arose as to the onus of proof.

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

Per McCarthy J.: That the burden of proof required of a petitioner for nullity of marriage was the balance of probabilities.

Dictum in N. (Orse. K.) v. K.[1985] I.R. 733 explained.

Per McCarthy J. Quaere whether a contract of marriage may be validly entered into by a man and woman in the hope that their relationship...