THE HIGH COURT
MATRIMONIAL
1994 No. 93M

BETWEEN

J. S.
PETITIONER
AND
M. (KNOWN AS P.)   J. (FALSELY CALLED S.)
RESPONDENT

Judgment of Mr. Justice Lavan delivered the 10th day of December, 1997.

1.	I heard the evidence in this case on the 25th and 26th November, 1997 which concluded with submissions from Counsel on behalf of both parties whereupon I reserved my decision.
2.	The Petitioner and Respondent were married on 1st January, 1972 in a Roman Catholic Church in the province of Leinster.  There is issue of the said marriage, namely, D. born on the 6th May, 1973.  He is now 24 years of age and resides with the Petitioner.  The Petitioner was born on 10th July, 1945 and is 52 years of age.  The Respondent was born on 20th August, 1943 and is 54 years of age.
3.	The questions for determination by the Court are those set out in the Order of the Master of the High Court dated the 22nd November, 1995, namely, three in number together with a fourth question which I permitted to be added by consent on the 25th November, 1997.
4.	The petition issued on the 7th December, 1994, liberty to issue a Citation herein was granted by Order dated 22nd February, 1995.  Same dated 21st April, 1995 duly issued.  The Respondent filed an answer on the 18th July, 1995 whereby all reliefs as sought by the Petitioner were put in issue by the Respondent.
5.	I heard the Petitioner, J.S. and Dr. G. Byrne, Psychiatrist.  The Petitioner met the Respondent in 1969.  They became engaged during Easter of 1971 and were married on 1st January, 1972.  Both parties lived close to a country village.  The Respondent had been living at that time with both parents, two sisters and one brother.
6.	Shortly before Christmas 1971 the Respondent caused herself to be admitted to a psychiatric hospital some 13 miles distant from her home.  The Petitioner, by arrangement and agreement with her family, collected the Respondent for Christmas Day and she returned to hospital that evening until the 29th December, 1971.  Apart from his knowledge of this voluntary admission by the Respondent, the Petitioner was ignorant of the Respondent's prior admission to hospital for psychiatric treatment.  He had no knowledge that the Respondent was, immediately prior to the marriage, suffering from a medical condition.
7.	The Petitioner comes from a farming background and worked in mining abroad and in Ireland up to that time.  He comes from a family of 9 members and is the fourth youngest.  He inherited his share of his mother's estate which was valued at £39,000 and included 39 acres.
8.	The Petitioner stated that he was unaware of the Respondent suffering from any medical condition.  Post-marriage, the Respondent was hospitalised many times and for various lengths of time.  There was some dispute as to the actual number of admissions.  I am satisfied these were, at least 19 in number, and may indeed have been more.
9.	There was much evidence as to unhappy differences arising after 1st January, 1971 which I rely on only as it may enable me to determine the Respondent's medical condition immediately prior to the 1st January, 1971.
10.	Dr. G. Byrne gave evidence of obtaining 19 admission notes concerning the Respondent's admission.
11.	The Respondent was first admitted to her local psychiatric hospital on 16th August, 1967 to 2nd November, 1967.  The application was signed by her father and sought a Certificate and Order for reception and detention  as a temporary patient pursuant to Section 184 of the Mental Treatment Act, 1945.  The Certificate and Order are to be referred to for their full effect.  As a result the Respondent had a thyroidectomy.  The diagnosis was manic depressive psychosis and her treatment is fully set out in the hospital notes.  Sometime in 1969 the Respondent moved to England and took up employment.  One of her sisters was married and living in England.  On or about the month of January 1970, this sister caused the Respondent to be admitted to a psychiatric hospital for a period of some three months.  No records of this admission were available.
12.	The Respondent returned to Ireland and on the 7th July, 1970 she was admitted to her local psychiatric hospital until the 31st July, 1970 on a voluntary basis.  A similar diagnosis was again made.
13.	On the 17th December, 1970 the Respondent caused herself to be re-admitted until the 29th December, 1970 when she was discharged at her own request.
14.	Dr. Byrne gave evidence as to his opinion of the Respondent's condition upon her latter discharge.  As to the degree of her illness he viewed the diagnosis as being ominous.  He greatly doubted the Respondent's ability to know what she was doing, i.e., getting married in the light of what was not good progress.  At that date his view is that the Respondent lacked any insight into her condition.  She would not have understood the meaning of marriage.  She lacked any insight into her actions.  At that time she would have had a severe limitation in her ability to have a relationship and would have been unable to give effect to the marriage contract. 
15.	His conclusion was that:-

	"With regard to point 1, it is my opinion that the respondent, M.J., was suffering from a severe psychiatric illness at the time of her marriage to Mr. J.S., and that the form of that illness was depression occurring as part of a Schizo Affective illness and this pre-existed her marriage.  The presence of this depression and Schizo Affective illness rendered her incapable of entering into a marriage union.  It also rendered her incapable of forming and sustaining a normal marital relationship and incapable of understanding the true nature of a normal marital relationship.  With regard to point 2 of the Master's order, it is my opinion that M.J. could not make a true consent to the marriage because of the presence of the psychiatric illness referred to.  With regard to point 3, I do consider that Mr. J.S. was capable of making a true consent to the marriage to M.J., but that when he did so, he did not know the degree of incapacity of M.J. to either consent to the marriage to him or of her inability to discharge that contract of marriage subsequently due to the presence of her psychiatric illness."

16.	This witness was challenged as to his opinion.  Dr. Art O'Connor's view was put to him, yet he remained satisfied with his expressed views.  The Respondent then gave evidence.  She is, in the view of Dr. Byrne, a very nice woman.  She suffers from schizophrenia and appears to have been on treatment for this condition since 1967, but without doubt since 1970.  Given her unfortunate history, she is understandably a poor historian and has given an account to the doctors which is at variance with her evidence in Court and with the medical records.
17.	Her account of the post-marriage situation is contradictory of the Petitioner.
18.	Dr. Art O'Connor gave evidence on behalf of the Respondent.  His report is part of the record of this Court.
19.	He read the case papers, also Dr. Byrne's Report and letter, he consulted with Dr. Ann Jackson, Consultant at the Psychiatric Hospital now dealing with the Respondent.  Lastly, he interviewed the Respondent.
20.	He spoke with no person who knew the Respondent prior to her marriage.
21.	He felt unable to be definite as to what diagnosis could be made of the Respondent, pre-marriage.
22.	His view of Dr. Byrne's opinion was that it was too clear cut.  Dr. O'Connor's opinion was that in 1971 people, i.e. the family, felt that the Respondent was capable of giving a free consent.  He felt that the Respondent's family were happy with this situation.  Understandably he relied heavily upon the Respondent's stated history to him.
23.	As I understood from Dr. O'Connor's evidence, he is uncertain as to the Respondent's ability to consent to enter into marriage.
24.	It is to be noted that I did not have the benefit of evidence from the Respondent's two sisters and brother.  All are alive.  One lives in England and two in Ireland.
	ASSESSING THE EVIDENCE

25.	These cases are difficult.  The court is being asked to determine the existence of a psychiatric condition immediately prior to the 1st January, 1972.  All available evidence is material and ought to be before the Court.
26.	As to the expert evidence, both psychiatrists have appeared in a variety of cases over many years.  I accept both as giving their honest views on this difficult matter. 
27.	I accept the evidence of the Petitioner.  I have reservations as to the Respondent's evidence for reasons already stated.
28.	As between the two psychiatrists, I prefer Dr. Byrne's evidence.  Dr. O'Connor effectively conceded in the tenor, manner and content of his cross-examination that he is not certain either way as to the Respondent's condition immediately pre-marriage.
29.	I accept Dr. Byrne's opinion as expressed in his Report dated the 21st August, 1996 and his further opinion as expressed in his letter to the Master of the High Court dated the 26th May, 1997.  I accept that the Respondent was suffering from a severe psychiatric illness at the time of her marriage to the Petitioner and that the form of that illness was depression occurring as part of a schizo-affective illness which pre-dated the marriage.  This illness rendered the Respondent incapable of giving a true consent to the marriage.
30.	On the basis of the authorities relied upon by Counsel for the Petitioner, namely, N. (Orse. K.) -v- K, [1985] I.R. at 733; M.E. -v- A.E., [1987] I.R. at 147 and M. O'M (Orse. O'C) -v- B. O'C, [1996] 1 I.R. at 208.
31.	I am satisfied that the Respondent did not give a consent that was full, free and informed.
32.	In these circumstances I declare this marriage void.  Therefore the question of appropriation does not arise.