Ussher v Ussher

JurisdictionIreland
JudgeK. B. Div.
Judgment Date20 April 1912
CourtKing's Bench Division (Ireland)
Date20 April 1912
William Arland Ussher, Petitioner;
Mary Ussher, Otherwise Caulfield, Respondent (1).

K. B. Div.

CASES

DETERMINED BY

THE KING'S BENCH DIVISION

OF

THE HIGH COURT OF JUSTICE IN IRELAND,

AND ON APPEAL THEREFROM IN

THE COURT OF APPEAL,

AND BY

THE COURT FOR CROWN CASES RESERVED.

1912.

Marriage law — Marriage of Roman Catholics by Roman Catholic priest — Two witnesses, as required by decree of Council of Trent and decree “Ne Temere,” not present — One of the parties a Protestant within previous twelve months — Conditional marriage — 19 Geo. 3, c. 13 (Ir.) — 7 & 8 Vict. c. 81, s. 326 & 27 Vict. c. 90, s. 11, sch. — 33 & 34 Vict. c. 110, s. 39.

A marriage solemnized in Ireland by a Roman Catholic priest, between two Roman Catholics, according to the ritual of the Roman Catholic Church in use in Ireland, but in the presence of only one witness, is by the law of the land valid, although it may not be valid by the law of the Roman Catholic Church, by reason of there not having been present two witnesses in addition to the priest, as required by the decree of the Council of Trent, “De Reformatione Matrimonii,” and the decree “Ne Temere.”

Such marriage is valid, notwithstanding that one of the parties had been a Protestant within the preceding twelve months.

The words in the Irish ritual, “If Holy Church will it permit,” do not make the marriage contract conditional upon the marriage being in accordance with the law of the Roman Catholic Church.

A marriage effected in accordance with the law of the land, and followed by cohabitation, is not invalidated by the fact that such marriage is void by the law of the Roman Catholic Church, and that the parties, had they known this, would not have entered into the marriage contract.

Motion to set aside judgment. The action was brought for the purpose of obtaining a declaration that what purported to be a marriage celebrated between the petitioner and the respondent on the 24th April, 1910, did not constitute a lawful or valid marriage, and that the same was null and void.

The petition set out as follows:—

“1. That your petitioner on the night of the 24th day of April, 1910, at the hour of 10 p.m., or thereabouts, in a bedroom in your Petitioner's house at Eastwell, aforesaid, he being then a

member of the Roman Catholic Church, went through a ceremony of marriage with one Mary Caulfield, now falsely called Mary Ussher, then resident at Eastwell, aforesaid, and also a member of the Roman Catholic Church.

“2. The said ceremony was performed by the Rev. Joseph Fahy, Parish Priest of Killalaghtan and Kilrickill, and purported to be performed in accordance with the rites and ceremonies of the Roman Catholic Church, in the presence of one Agnes Kavanagh, no other person being present or witnessing the said ceremony.

“3. Your petitioner says that the said marriage was null and void by reason of the fact that only one witness to the same was present, and that the said ceremony was not carried out or solemnized in accordance with the rites, regulations, and ceremonies of the Roman Catholic Church, or according to the law.

“4. That at the time of the said ceremony hereinbefore mentioned, and at the present time, your petitioner and the said Mary Caulfield had and have their domicile in Ireland.

“Your petitioner therefore prays that this honourable Court will be pleased to decree:—That the said ceremony of the 24th day of April, 1910, did not constitute a lawful or valid marriage between your petitioner and the said Mary Caulfield, and that the same is null and void.”

The answer of the respondent set out:—

“1. That the respondent admits the facts and matters set out in paragraphs 1 and 2 of the petition, save that she denies that she is now falsely called Mary Ussher, and asserts that she is now legally and properly called Mary Ussher, being the lawful wife of the petitioner.

“2. That the respondent denies that the said marriage was null or void by reason of the fact that only one witness to the same was present, or for any other reason whatever, and the respondent also denies that the said ceremony was not carried out and solemnized in accordance with the rites, regulations, and ceremonies of the Roman Catholic Church, and the respondent further denies that the said ceremony was not carried out or solemnized according to law.

“3. That the respondent says that the said ceremony which was solemnized on the 24th April, 1910, as mentioned in the petition, constituted a valid marriage, and that the respondent is by virtue thereof the lawful wife of the petitioner.

“4. That from the date of the said marriage the petitioner has cohabited with the respondent, and there has been issue born of the said marriage one child, Kathleen Mary Ussher, born the 15th day of January, 1911.

“The respondent prays:—(1) That this honourable Court may be pleased to declare that the said ceremony of the 24th April, 1910, constituted a lawful and valid marriage between the petitioner and the respondent; (2) That the petition may be dismissed.”

The reply of the petitioner was as follows:—

“1. Save as admitted in the answer of the respondent he joins issue.

“2. The alleged contract of marriage was not accompanied by a valid religious ceremony as required by law.

“3. The alleged contract of marriage was subject to and upon the express condition that the same should be according to the rite of the Roman Catholic Church.

“4. The alleged contract of marriage was subject to and upon the express condition that the Roman Catholic Church should permit of the same being effectual as a valid marriage.

“5. The alleged contract of marriage was made upon the faith and belief that the same was one which would be valid as a Roman Catholic Sacrament of marriage and binding according to the law of the Roman Catholic Church, and was never intended to have any other legal operation or effect.

“Wherefore the petitioner prays as before.”

The action was tried before Kenny, J., with a special jury of the county of the City of Dublin on the 18th and 19th December, 1911. There were only two witnesses examined, both on behalf of the petitioner. At the conclusion of the petitioner's case the jury, with the consent of both sides, found a verdict as follows:— “That on the 24th day of April, 1910, a religious ceremony purporting to be a marriage according to the form and rites of the Roman Catholic Church between petitioner and respondent, they both being Roman Catholics, was celebrated by the parish priest of the parish where both parties resided, at the petitioner's house, but in the presence of only one witness, and that the parties afterwards cohabited.” The jury were discharged after having found this verdict, and the legal arguments proceeded before Kenny, J. He reserved judgment, and delivered it on the 17th January, 1912, holding the alleged marriage to be a valid one. The facts of the case are fully set out in the judgment.

Kenny, J.:—

The object of the petition in this suit is to obtain a declaration from the Court that a ceremony purporting to be one of marriage, which was performed on the 24th April, 1910, did not constitute a lawful or valid marriage between the petitioner and the respondent and that the same is null and void. The grounds stated in the petition for impeaching the alleged marriage are, that only one witness to the ceremony was present, and that the latter was not carried out or solemnized in accordance with the rites, regulations, and ceremonies of the Roman Catholic Church or according to law. The answer of the respondent asserted that the said ceremony constituted a valid marriage and that the respondent by virtue of it was the lawful wife of the petitioner. It stated that from the date of the alleged marriage the petitioner had co-habited with the respondent and that there had been issue one child, born on the 15th January, 1911—and it denied that the ceremony was not carried out and solemnized in accordance with the rites, regulations, and ceremonies of the Roman Catholic Church—or that it was not carried out or solemnized according to law.

In reply to the respondent's answer, the petitioner made the case that the alleged contract of marriage was a conditional one; that it “was subject to and upon the express condition that same should be according to the rite of the Roman Catholic Church”; and that “the Roman Catholic Church should permit of the same being effectual as a valid marriage”; and that the said contract “was made upon the faith and belief that the same was one which would be valid as a Roman Catholic sacrament of marriage and binding according to the law of the Roman Catholic Church, and was never intended to have any other legal operation or effect.”

The practical legal results of granting the prayer of the petition are obvious. The petitioner's child will be bastardized, and her mother degraded. In the eyes, however, of the Roman Catholic Church the child and mother do not now occupy, and have not since the date of the said ceremony occupied, any position different from this. The law of the Church is not in controversy. It is regulated by one of the decrees of the Council of Trent,—adopted in the sixteenth century and promulgated in this country in the year 1830—and by the recent decree known as the decree Ne Temere, issued in August, 1907, by the Sacred Congregation of the Council with the authority of the present Pope. To the latter decree I need not more particularly refer, inasmuch as the provisions of that of the Council of Trent are those that are relevant to the question I have to consider. Both decrees purport to have been directed against what the Church styled “the rash celebration of clandestine marriages,” and very clear and distinct language is used for the purpose of indicating the safeguards for publicity and proof of marriage which the Church regarded as essential, and the penalties that would be incurred by a disregard of those safeguards. The decree of the Council of Trent...

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