UR v or

• Jurisdiction: Ireland
• Judge: Mr. Justice Binchy
• Judgment Date: 24 February 2021
• Neutral Citation: [2021] IECA 55
• Docket Number: Record No. 2019/225
• Year: 2021
• Court: Court of Appeal (Ireland)

Between/

A R

Petitioner/Appellant

and

D R

Respondent

[2021] IECA 55

Costello J.

Haughton J.

Binchy J.

Record No. 2019/225

THE COURT OF APPEAL

Marriage – Decree of nullity – Evidence – Appellant seeking a decree of nullity in respect of the marriage entered into by the parties – Whether the appellant had sufficient evidence to establish a prima facie case

Facts: The appellant appealed to the Court of Appeal from a decision of Reynolds J in the High Court whereby, by order made on 11th April 2019, she refused the petition of the appellant for a decree of nullity in respect of the marriage entered into by the parties on 5th July 1995. The appellant advanced 18 grounds of appeal. Eight of these concern allegations that the trial judge, in one way or another, did not afford the appellant a fair trial (ground numbers i, ii, iii, iv, v, xi, xvi and xvii). The appellant claimed, inter alia, that the trial judge displayed hostility and bias towards the appellant by interrupting her, by refusing to allow the appellant to adduce evidence of certain matters and by making comments critical of the appellant for bringing the proceedings. Three of the grounds were concerned with interactions that the respondent had with the medical examiner appointed by the High Court to examine the parties, and his initial refusal to attend for examination (ground numbers vii, viii and ix). Two of the grounds were concerned with complaints the appellant had about the conduct of the respondent in procedural matters leading up to the hearing of the petition (ground numbers xii and xiii). In ground number vi, the appellant claimed that the trial judge failed to give adequate reasons for distinguishing the proceedings from cases relied upon by the appellant. In ground number x, the appellant complained that the judge involved herself in ancillary relief matters, which formed no part of a nullity application. Two of her grounds, xiv and xv, related to errors of fact in the judgment of the trial judge. In ground number xviii, the appellant claimed that the trial judge erred in her interpretation of the motivations of the parties in the proceedings.

Held by Binchy J that his decision in this appeal had been arrived at on the basis of evidential shortcomings in the appellant’s case; she advanced two grounds for her petition, duress and capacity, but she did not have sufficient evidence to establish even a prima facie case under either heading. In Binchy J’s view, the conclusions that the trial judge reached on the evidence were not just correct, but inevitable, and she was correct to dismiss the petition. Binchy J held that this appeal too must be dismissed.

Binchy J held that as the respondent had been entirely successful in this appeal, his provisional view was that the respondent was entitled to his costs both in the Court of Appeal and the High Court.

Appeal dismissed.

UNAPPROVED

JUDGMENT of Mr. Justice Binchy delivered on the 24 ^th day of February 2021

1 . This judgment concerns an appeal from a decision of Reynolds J. in the High Court whereby, by order made on 11th April 2019, she refused the petition of the appellant for a decree of nullity in respect of the marriage entered into by the parties on 5th July 1995.

2 . The appellant, who represents herself in these proceedings, advances two grounds for the petition. The first is that the appellant claims that the respondent subjected her to duress to such an extent that their marriage took place without her full free and independent consent. While I explain later her grounds for this claim in more detail, in general terms she claims that at the time that she married the respondent, she was under his control, and by reason of his manipulative behaviour, she had been left isolated from friends and family overseas (“OS”). The appellant's second ground for this petition is that at the time that they married, the respondent lacked the capacity to enter into and sustain a caring and considerate marital relationship by reason of the fact that he was and is in some way mentally unstable, and also by reason of the fact that he is or was either homosexual or bisexual.

3 . The parties met OS in 1993, when they were living in the same apartment complex. The appellant says they met in December 1993, and that they became romantically involved from St. Stephen's Day, 1993. The respondent says they began going out in or about November of 1993, and they started living together in January 1994, when he moved in to the appellant's apartment. This was not denied by the appellant. In March /April of 1994, the respondent had to return home to Ireland (both parties are Irish nationals) in order to regularise his entitlement to live and reside OS. This took a little longer than expected, and while there is some disagreement between the parties in relation to the nature of the communications between them during this period, nothing turns on that for the purposes of these proceedings. The respondent returned to OS in or about May or June of 1994 and while there is also some disagreement regarding the precise circumstances in which he re-commenced living with the appellant following upon his return to OS (this is described at paras. 20–22 below), nothing of significance turns on that issue either. What is beyond any doubt is that not very long after the respondent returned to OS the parties were living together, as a couple, in the appellant's apartment OS.

4 . In her grounding affidavit, the appellant claims that the respondent proposed marriage to her within two months of their meeting. The appellant claims that she declined his proposal at that point. In his replying affidavit, the respondent denies asking the appellant to marry him within that period, and on his version of events he claims that he asked the respondent to marry him “sometime” in 1994 which on this version of events would have been prior to their return to Ireland for a summer holiday in 1994. The parties agree that they travelled together to Ireland for holidays during the course of which the respondent asked the appellant's father for her hand in marriage, to which he agreed (or, on the appellant's version of events, to which he replied that this was a matter for the appellant). In any case, what appears to be common ground is that the parties were engaged to be married, at the latest, from this time onwards, which was sometime in mid-1994. Following their engagement, the appellant and her family made all the wedding arrangements, and she also chose her own engagement ring.

5 . The parties married in Ireland on 5th July 1995 and honeymooned in Ireland. There are two children of the marriage, A, a daughter born OS on 21st June 1997 and B, a son born in Ireland on 26th June 2002. The parties had returned to live in Ireland in 1998. Unfortunately, relations broke down over the years, and the parties separated in September 2008. In October 2009, the respondent instituted proceedings in the Circuit Court seeking a decree of judicial separation. The appellant, who was a litigant in person in these proceedings, at that time was represented by solicitors and counsel. Her solicitors entered an appearance and delivered a defence on her behalf, by which the appellant admitted the marriage. By order made on 13th July 2011, the Circuit Court granted a decree of judicial separation and, inter alia, ordered that the parties would have joint custody of the dependent children, and further ordered that the children should reside with the respondent, with the appellant to have access to the children as provided for by the order of the Circuit Court.

6 . From the time of the parties' separation to the time that the order of the Circuit Court was made, the children had been residing with the appellant pursuant to an order of the District Court, with the respondent having access. There have also been several other proceedings between the parties arising out of the breakdown of the marriage. These include an application brought by the appellant to have the children admitted to wardship, apparently on the basis that the appellant claimed that the respondent had told B to jump from a first floor window while he was staying with the appellant during holiday access, an allegation the respondent denies. This application was brought before the High Court on the same day that the appellant issued her petition for nullity. The High Court refused the application.

7 . There are a few other matters that form part of the background that merit mention, although they are not directly relevant to the issues requiring determination. The first is that some years before the parties met, in 1987, the appellant's brother in law had been murdered OS. This tragedy obviously had a significant impact on the appellant's family, and although she did not mention it in either her grounding affidavit or her replying affidavit, the appellant claims, by way of submission, that it left her a vulnerable person. Secondly, the appellant made an attempt on her own life around 1991, before she went OS. It became a matter of some controversy in the proceedings how the respondent became aware of this event. The appellant maintains she herself told the respondent, and he claims he was told by her sister. This was the subject of a heated exchange with the trial judge to which I refer below. Finally, around April 2000, following their return to Ireland, the appellant was the victim of a bad assault, as a result of which she developed post-traumatic stress disorder, in respect of which she required counselling. The appellant also had a miscarriage around this time, which she blames on the assault, although the respondent says the medical advice at the time indicated otherwise. The appellant discovered quite late in life that she suffers from a learning disorder, but has learned to overcome it to the extent of being able to study...