'When Divorce is Away, Nullity's at Play': A New Ground for Annulment, its Dubious Past and its Uncertain Future
| Author | Fergus W. Ryan |
| Position | LL.B. (Hons.) (T.C.D.), Ph.D. candidate, Trinity College, Dublin |
| Pages | 15-36 |
'When
Divorce
is
Away,
Nullity's
At
Play
'WHEN
DIVORCE
IS
AWAY,
NULLITY'S
AT
PLAY':
A
NEW GROUND
FOR
ANNULMENT,
ITS
DUBIOUS
PAST
AND
ITS
UNCERTAIN
FUTURE
FERGUS
W.
RYAN*
1982
saw the
introduction
in
Ireland
of
an
entirely
new
ground
upon
which
a
civil
marriage
may
be
avoided
and
thus
declared
a
nullity.
This
ground,
which
masquerades under
a
number
of
titles,
centres
broadly
on
the
absence
of
the
psychological
or
emotional
capacity
of
a
prospective
spouse
to
enter
into
and
sustain what
is
variously
called
a
"normal"
or
"caring
and
considerate"
marital
relationship.
(For
the
purposes
of
brevity
it
shall
be
referred
to
herein
as
'the
new
ground'.)
It
is
remarkable
not
merely
for
its
content but
more especially
for
its
unusual
origins.
The
new
ground
-
unprecedented
in
the
common
law
world
at
least'
-
is
the
creature
of
judicial
rather
than
legislative
intervention,
the
product
of
a
controversial
analogy
with
non-
consummation
as
a
ground
for
the
avoidance
of
a
marriage.
As
a
study
of
what
is
often
dubbed
'judicial
activism'
the
story
of
the
law's
developments
in
this area
should thus
be
one
of
relevance
not
alone
to
family
lawyers
but
to
jurists
at
large.
Yet,
just
as
its
origins pose
difficult
questions
about
the role
of
judges
in
the
development
of
law,
so
too
does
its
substantive content
raise complex
issues
concerning
the
dynamics
of
marriage,
and
most
pertinently,
the
appropriateness
of
legal
responses
to
incidents
of
marital
dysfunction.
In
particular
there
is
cause
for some concern
that
the
new ground
has
confounded
psychological
incapacity
with
inter-
LL.B. (Hons.)
(T.C.D.),
Ph.D.
candidate,
Trinity
College,
Dublin.
I
am
indebted
to
Professor
William
Duncan
for
his
invaluable comments
and
advice
on
an
earlier incarnation
of
the
present
text.
All
errors,
misquotes
and
omissions,
however,
are
entirely
my
own.
1
Although
it
does
have
a
Roman
Catholic
Canon
Law
analogue.
See
Canon
1095(c)
of
the
Code
of
Canon
Law,
which
applies
where
a
party
is
unable
to
fulfil
the
'essential obligations
of
marriage'.
1998]
Trinity
College
Law
Review
personal
incompatibility, thereby sundering
the
very
delicate
balance
which
ought
exist
between
defects
which
render
a
putative
marriage
null and
void
(or voidable) and
those which
arguably
warrant
its
dissolution.
As
the
dust
settles
in
the
aftermath
of
the
recent
divorce
referendum,
it
is
perhaps
timely
that
we
look
again
at
this
new
and
controversial
basis
for
the
annulment
of
marriage.
Before
doing
so,
however,
it is
necessary
briefly
to
outline
some
general
points
about
the
concept
of
legal
nullity
as
applied
to
marriage.
Nullity
of Marriage:
Some
General
Remarks
Prior
to
1870,
legal
responsibility
for
matters
matrimonial
lay with
the
Ecclesiastical
Courts
of
the
then
established
Church
of
Ireland.
Following
upon
the
disestablishment
of
the
latter
church
in
1869,
the
latter's
jurisdiction
passed
to
the civil
courts,
initially
the Court
for
2
Matrimonial
Causes
and
Matters and
then
to the
High
Court
of
Justice.
3
This
jurisdiction
has
recently
been
extended
to
the Circuit
Court.
4 One
aspect
of
the
jurisdiction
transferred
was
the
ability
to
make
a
declaration
that
a
putative
marriage, although
duly
solemnised,
was
in
fact
null
and void
for
all
legal
purposes.
The
word
'declaration'
is
used
deliberately
in
this
connection.
It
is
not
by the
hand
of
the
court
that
a
marriage
is
rendered
invalid.
It
is,
rather,
the
absence
of
some
feature
deemed
to
be
essential
to
the
formation
of
a
valid marriage
which
is
fatal.
By
contrast
with
a
decree
of
divorce -
where
the
court
actively
moves
to
terminate
an
otherwise
valid
and
subsisting
marriage
-
an
annulment
involves
the
simple
declaration
that
due
to
the
presence
of
a
fundamental
defect,
a
putative
marriage
never
existed,
despite
an
ostensibly
sound
marriage
ceremony.
The
alleged defect,
however, must
have
existed
at
the time
of
the
marriage
ceremony.
A
defect
which comes
into
being
subsequent
to
the
marriage
ceremony
will
not
be
actionable
in
this context.
2
Matrimonial
Causes
and
Marriage
(Amendment) Act,
1870.
3
Judicature
(Ir.)
Act,
1877,
1924,
Courts
Act,
1961.
4
Family
Law
Act,
1995
s.38(2)
-
the
court
can
also
make
a
declaration
as
to marital
status
under
s.29.
5
Napier
v.
Napier
184.
Although
see
A.
O'H.
v.
F.
in
which
this
criterion seems
to
have
been
unwittingly
ignored.
[Vol.
I
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