High Court of Ireland Decisions

1. Three motions in this nullity suit came before this Court. The first motion was an appeal from the Order of the Master made under Order 36, Rule 4 and Order 70, Rule 32 of the Rules of the Superior Courts on 17th April, 1996 appointing Dr. Gerard Byrne as medical inspector for both parties in the above entitled action.

2. The second motion was a motion for directions and orders under Order 70 of the Rules. This motion was brought by the Petitioner, adopting a belt and braces approach, in case the Appellant should succeed in her contention that the Master had no jurisdiction to make the Order appointing a Consultant Psychiatrist as a medical inspector in a contested application. The Petitioner's "fall-back position" is that the High Court itself at least has the power to make such an appointment and should do so in the circumstances of this case.

3. The third motion was in respect of an Order for alimony pendente lite and while all three motions were more or less heard concurrently, this aspect was resolved after some airing before the Court and an Order was made by the Court on foot of agreement between the parties.

4. The parties went through a ceremony of marriage in a Roman Catholic church in Dublin on 9th September, 1978. Both are Irish citizens and of Irish domicile. They have lived together at four addresses in Dublin and three children were born to them, namely D.S. on 23rd June, 1979, E.S. on 6th December, 1980 and H.S. on 4th March, 1989.

5. An answer strongly contesting the contents of the petition has been filed. The issues fixed by the Master to be tried involve matters not only of capacity to give consent but also include at least six issues concerning the capacity of the psyche of one or other or both of the parties to enter into and sustain a normal marital relationship.

6. I propose to deal in sequence with each proposition put forward by the Appellant (who is the Respondent wife) and then to set out the refutation thereof contended for by the Petitioner. I shall refer to the "husband" as "the Petitioner" and the "wife" as "the Appellant" for the sake of clarity. I might add that "when a marriage has been celebrated in a proper forum between apparently competent partners, there is a presumption of law in favour of its validity" (per Griffin J.) in N. (orse. K.) -v- K ., 1986 I.L.R.M. 75 at page 89. The onus of proof is on the Petitioner to satisfy the Court which approaches claims for annulment cautiously and scrutinises the evidence carefully for it is not "a Court of convenience to release ill assorted spouses from a marriage bond because it has become irksome to one, if not to both" (Hanna J. in McM. -v- McM. , 1936 I.R. 177 at 187). A marriage may be void because of:-

7. In addition, two grounds only render a marriage voidable, namely, the inability of either party to consummate the marriage and the inability of either party to enter into and to sustain a normal marital relationship. A voidable marriage may be subject to approbation in that grounds for annulment may exist but it may be refused where a petitioner has acted in such a way as to accept the validity of the marriage. Ratification, likewise, can be invoked where a marriage is allegedly void for want of consent. This may seem illogical but in a marriage void for want of consent and in a voidable marriage, a party can by his or her conduct prevent such a marriage from being annulled. In the present case, there are three children and it may be that these will be regarded as "walking ratifications" of the marriage. The Appellant also relies on the constitutional protection of marriage of which she can avail unless and until the marriage is declared null and void. Since the scope of nullity on grounds of incapacity has been widened, it would seem that the Court should consider whether the Petitioner's approbation would render the granting of a decree of nullity unjust and that the Court should also take into account lapse of time as a factor in applying the doctrines of approbation and ratification.

8. Another factor in the background is the extent to which the Court should rely on the evidence of a Consultant Psychiatrist. There are obvious perils in relying on psychiatric evidence which at least to some extent may be based on second-hand accounts by others given in interviews about the Petitioner or the Respondent. In some unopposed nullity cases, the Consultant Psychiatrist gives an opinion verging on the ultimate issue which the Court is going to have to decide, namely, whether one or other of the parties suffered from such illness at the time of the ceremony of marriage as to be incapable of entering into and sustaining a viable marital relationship. In some ways, the new ground of nullity is comparable to impotence. Impotence had to be incurable if a petition for nullity was to succeed. Thus, it may be that it becomes relevant to consider whether the party alleged to be afflicted with illness is constitutionally incapable, either through his or her own efforts, or with the aid of medical treatment, or both, of bringing about such an improvement in the situation as to make for the possibility of a viable marriage. The Court may have to explore not only the capacity of the party to enter into the appropriate marital relationship but also the party's capacity to sustain this relationship. Indeed, it may well be that a party who was incapable at the time of the marriage of forming a meaningful marital relationship, may, with medical help, stand a realistic prospect of being cured so that the capacity to form the required relationship may be restored or acquired. On the other hand, the affliction may have brought about such an irretrievable breakdown of the marriage that even if the party's condition is ameliorated, nevertheless the marital relationship is irredeemably destroyed. With these types of issues in the background to the contentions in this application, there seems to be much to be said for the Courts having the assistance of an independent psychiatric assessor. In view of the strong public interest which the State has in the preservation of existing marital unions, it may be that in an appropriate case, much consideration will have to be given to the prospect of curative treatment. There is also the peculiar anomaly that a party may be able to obtain a decree of nullity because of the existence of an incapacitating antecedent illness but will be denied relief if the illness causing the inability came after marriage.

9. I quote the useful history of the office of Master of the High Court from Jane Barron & Margo Ford's "Practice and Procedure in the Master's Court" , page 1:-

10. S.I. No. 15 of 1986 contains the Rules of the Superior Courts which were made in December 1985 with the concurrence of the Minister for Justice on 17th January, 1986.

11. The relevant rules for this appeal are as follows:-

12. At page 18, he went on to say:-

13. He concluded at page 28 by saying:-

14. The Petitioner's response to the suggestion that the Master was acting outside his powers is that he was exercising a jurisdiction derived from the Ecclesiastical Courts and sanctioned by Statutes and Rules of Court and specifically that the provisions of Order 70, Rule 32(2) provide that the Master may appoint two medical inspectors to examine the parties. The Petitioner has no objection to the Court appointing two medical inspectors provided that they are independent and report to the Court. In this respect, my reading of the rules is that the purpose of appointing two medical inspectors was so that there would be a Gynaecologist and an Urologist or other appropriate doctor to conduct the respective examinations. I think that it is preferable that there should be one Consultant Psychiatrist so as to minimise the intrusion into the private lives of the parties and the stress of attending a psychiatric examination.

15. The law of nullity in Ireland has developed from the principles of the Canon Law. Since 1535, the Ecclesiastical Courts of the Church of Ireland continued broadly to apply the Canon Law principles. A fundamental principle involved was, and continues to be, that enquiry as to the validity of a marriage was more inquisitorial and less adversarial in nature than the usual case. Before 1st January, 1871, the Civil Courts in Ireland had no jurisdiction in matrimonial matters and suits for nullity of marriage had been dealt with solely by the Ecclesiastical Courts. With the disestablishment of the Church of Ireland and the coming into operation of the provisions of the Irish Church Act, 1869, with the passing of the Matrimonial Causes and Marriage Law (Ireland) Amendment Act, 1870, a Court for matrimonial causes and matters was established and the former matrimonial jurisdiction of the Ecclesiastical Courts was transferred to this new Court. Section 7 of the 1870 Act provided that from the 1st January, 1871 all jurisdiction now vested in or exercisable by the Ecclesiastical Courts in respect of " ... suits of nullity of marriage ... shall belong to and be vested in Her Majesty and such jurisdiction shall be exercised in the name of Her Majesty in a Court of record to be called the Court for Matrimonial Causes and Matters ". Section 13 of the Matrimonial Causes and Marriage Law (Ireland) Amendment Act, 1870 provided that in all suits and proceedings in the Court relating to matrimonial causes and matters, the Court should " ... proceed and act and give relief on principles and rules which, in the opinion of the said Court, shall be as nearly as may be conformable to the principles and rules on which the Ecclesiastical Courts of Ireland have heretofore acted and given relief. " It seems to stem from this that the procedure of a more inquisitorial type in operation before 1870 continues to entitle the Court to look for independent evidence of a probative nature to assist in the determination of key facts as to whether a marriage is valid and subsisting or null and void. Thus, the Master and the Court have power, under the statutes above and the statutes authorising the making of the Rules, and the provisions in Order 70, Rule 32 to appoint a medical examiner, including a Psychiatrist or a Psychologist, when grounds of impotence or incapacity are raised; and both Master and Court have such power whether or not the making of such Order is opposed.

16. In my view, the Master had jurisdiction to make the Order appointing the Consultant Psychiatrist as medical inspector for both parties. Incapacity can be construed as covering psychological as well as physical incapacity. The ground of incapacity formerly on occasion involved a finding that such a feeling of revulsion existed in the psyche quoad hunc or quoad hanc that a marriage was never consummated physically.

17. I am reinforced in this conclusion having read the file in an unreported case in 1971, C.D. -v- E.D. , which was a case in which the marriage was declared null and void by reason of the Petitioner's impotency quoad hanc. It is clear from Dr. Fahy's report that the incapacity was of the mind and not of the body. Master O'Leary had refused to appoint a Psychiatrist as an inspector but had appointed a Gynaecologist and a Surgeon. Henchy J., on appeal, on 21st June, 1971 varied the Master's Order by substituting a Psychiatrist for the Surgeon and ordering:-

18. I understand that the practice has been to adapt the forms in the rules to take account of a Psychiatrist rather than a Surgeon or Urologist making the inspection. This is a sensible adaptation of the forms which are intended as guidelines.

19. As for the word "inspection", while it may mean literally to look at, it seems to me that a gynaecological or urological examination would probably be tactile as well as visual and, accordingly, "inspection" has a wide connotation and includes interview, although not including any invasive test procedures or treatment.

20. It was submitted on behalf of the Appellant that even if the Master had such a jurisdiction, he should have exercised his discretion in favour of the Appellant by refusing to appoint a medical doctor to carry out a psychiatric examination of the Appellant. The contention was made on the authority of Anderson -v- Irwin , a case in the Northern Ireland Court of Appeal before Curren and McVeigh L.J.J., 1966 N.I.L.R. 156, that the Petitioner in this case had more than adequate means by which to conduct his case without the necessity of procuring an Order to require the attendance of the Appellant at a psychiatric examination. In Anderson's case, the Plaintiff declined to submit to examination by a Surgeon acting on behalf of the Defendant unless he received an undertaking that his hospital records and x-rays would not be made available to the Surgeon. The Surgeon refused to examine the Plaintiff unless he was allowed to refer to the records and x-rays. In the High Court, Sheil J. refused an application to stay the proceedings until the Plaintiff had submitted himself for examination and the hospital records and x-rays had been made available to the Surgeon. The Court of Appeal held that while it was settled practice in such cases that a Plaintiff must submit to a medical examination on behalf of the Defendant, there was no such practice with regard to making available hospital records and x-rays, and that as the Plaintiff's refusal to make available the hospital records and x-rays did not render it either impossible or impracticable for the Defendants to conduct their defence, the Court's discretion to stay the proceedings should not be exercised. In another Northern Ireland case, McDowell -v- Strannix , 1951 N.I.L.R. 57, Sheil J. was dealing with an action for damages for personal injuries in which the Plaintiff refused to submit to examination by the Defendant's medical adviser except on the terms that the medical adviser's evidence at the trial would be confined to the question of damages and that no evidence of any statement made by the Plaintiff to him relating to the issue of liability would be given. The Defendant had refused to agree to these terms and moved to stay the proceedings until the Plaintiff submit to a medical examination without imposing any such terms. Sheil J. held that since the proper function of a medical witness is to give expert evidence as to damages and not to give evidence as to liability, the terms were reasonable and the motion must be refused. At page 59, Sheil J. said:-

21. It was submitted on behalf of the Appellant that what the Petitioner was seeking here was analogous to the enquiry in respect of liability in the personal injury action in that the psychiatrist would have interviewed the Appellant on her life history with regard in particular to establishing her capacity to enter into the marriage. It was submitted that the onus of proof lies on the Petitioner and that by seeking such an Order the Petitioner was seeking to have a psychiatrist conduct an appraisal retrospectively of circumstances in and before the year 1978. The Petitioner's response to this is that in Anderson's case the Plaintiff did not refuse simpliciter to undergo a medical examination at the behest of the Defendant but rather was resisting the practice of making available hospital records and x-rays to the Surgeon nominated by the Defendant. The Petitioner responded that, in view of the issues, the Master had exercised his discretion appropriately in appointing an independent Consultant Psychiatrist for the purpose of inspection and report to the Court on the matters at issue in relation to the psyches of the parties at the time of the marriage. It was stressed that the peculiar expertise of a Psychiatrist was the very skill which would enable an evaluation to be made, for the benefit of the Court, of the state of the mind of each of the parties as of the date of the ceremony of the marriage. Anderson's case, being a personal injury claim in an adversarial action, differs from the present case in that the Defendant's Surgeon could examine Anderson and report without having sight of the hospital records and of the x-rays. In view of the issues involving the psyche which have been fixed by the Master, it seems that it was a proper exercise of discretion on the part of the Master to appoint a Consultant Psychiatrist to carry out an independent examination of the parties so that the Court may have the benefit of such a professional assessment before determining the issues. One advantage of having an independent psychiatrist's report is that it may obviate the need for a treating doctor to have to produce a report or to give evidence. This may prevent erosion of the trusting relationship between patient and own treating psychiatrist.

22. It was suggested on behalf of the Appellant that the appointment of a psychiatric medical inspector infringed the Respondent's right to privacy, being a personal right of a citizen, and was also an infringement of her right to marital privacy. Counsel relied on Kennedy -v- Ireland , 1987 I.R. 587 and McGee -v- Attorney General , 1974 IR 284. It was further submitted that the Master's Order would affect the Appellant's right to bodily integrity being a personal right. Counsel submitted that the Appellant was a woman with three children born of a marriage which at present enjoys the attributes of a constitutionally recognised family; a decree of nullity would affect how the Appellant was regarded by the community and would affect her self-esteem and her self-confidence as a person who had operated as, and been recognised as, a wife and mother for a long number of years and had been so regarded by the community. It was submitted that such a decree would have dire and severe financial consequences for the Appellant; and that to require the Appellant, a woman already undergoing medical treatment, to attend a strange psychiatrist for assessment at the request of her husband and not at her own behest, was invasive of her right to marital privacy. By way of response, the Petitioner submitted that the power to have a party to a nullity suit examined by a medical inspector for the purpose of the Court is analogous to the power of the President of the High Court in wardship proceedings to have the Respondent in a wardship suit medically examined. Such a medical inspection usually leads to an interview with a Psychiatrist and a report being filed for the attention of the President of the High Court. It was submitted that there was no authority for the proposition that the right to privacy was absolute or that the State by its laws was not entitled to control personal conduct where the common good or the protection of public order or morality necessitated such control. In Kennedy & Arnold -v- Ireland and the Attorney General , 1987 I.R. 587, it was made clear that the right to privacy was not an unqualified right but rather was subject to the constitutional rights of others and to the requirements of public order and the common good. At page 593, Hamilton P. said:-

23. It is inappropriate to compare the surreptitious and illegal interference with the telephone calls of Mr. Arnold and Ms. Kennedy with the appointment by the Master of the High Court in pursuance of his powers of an independent psychiatric inspector to examine both the Petitioner and the Respondent for the purpose of preparing a report on the issues fixed by the Master.

24. It is clear that the Court will not lightly order an examination which is unpleasant, painful or potentially dangerous (see Aspinall -v- Sterling Mansell , 1981 3 All E.R. 866 and Prescott -v- Bulldog Tools , 1981 3 All E.R. 869). However, there is no evidence that the Appellant would be put at risk by attending an interview. In any event, the Petitioner's submission is that the Order sought is for the appointment of the psychiatric inspector and that there is no mandatory requirement on a party to attend. Obviously, adverse comment may be made if a party refuses to attend, but this may well be subject to a reasonable explanation, for example, the recommendation of a person's treating psychiatrist in this respect. While I accept that a psychiatric examination may pry into a person's inner mind, I do not think that this necessarily constitutes an interference with a right to bodily integrity. If the Appellant gives evidence, then she could be subjected to vigorous cross-examination in respect of her past mental state. Such a course of questioning could hardly be objected to on the basis that it infringed a right to bodily integrity. The Court has the right to hear relevant and admissible testimony from witnesses. In the light of the issues, the appointment of an independent medical inspector with psychiatric skills would appear to be reasonable.

25. As for the argument based on marital privacy, since the thrust of the Petitioner's application is that the parties were never validly married, it would seem that marital privacy should not prevail as a bar to an enquiry as to the validity of the marriage, although if there is an issue of voidability then probably approbation and ratification become relevant.

26. It may seem distasteful that a person who is suffering from a condition which requires psychiatric treatment be put in the position that she must accept or decline to give an interview with a Consultant Psychiatrist. I do not think that she is protected by the privilege against self-incrimination which should be construed in a narrow sense in that the privilege should only operate to permit a witness in legal proceedings to refuse to answer questions when the answers may tend to incriminate her by exposing her to subsequent criminal proceedings.

27. The United States Supreme Court in Estin -v- Estin , 334 U.S. 541 at page 553 gave expression to the entitlement of a Petitioner in nullity proceedings where Mr. Justice Jackson stated:-

28. The Court has to investigate the status of this marriage and has the right to evaluate the testimony of relevant witnesses. The presentation of a psychiatrist's report based on interviews with the parties may indeed preclude the need for a vigorous cross-examination of the Appellant in this type of case. While I accept that it is open to the Petitioner to call evidence of doctors, relatives and other persons with knowledge of the personalities of each party prior to the wedding, nevertheless, I do not think that this should preclude, in the circumstances of this case, the making of an Order for the appointment of an independent Consultant Psychiatrist as a medical inspector. Accordingly, I am inclined to make an Order confirming the Order of the Master appointing the Consultant Psychiatrist as a medical inspector but I will hear the parties with regard to the terms of the Order, bearing in mind that it has been submitted on behalf of the Petitioner that the Appellant would not be compelled to attend such a psychiatric examination. Furthermore, Counsel for the Appellant previously indicated that submissions would be made, if necessary, in respect of the specific psychiatrist or psychiatrists to be appointed.

29. It is necessary that the situation be clarified in the light of this judgment so as to avoid the situation where the Registrar and psychiatrist or psychiatrists would be in attendance at a time and place if either or both of the Respondents do not intend to turn up for the appointment. Accordingly, I will hear submissions on the terms of the Order to be made.