Supreme Court

M. O’M. (otherwise O’C.)
		(Plaintiff)

v.

B. O’C.
		(Defendant)

No. 194 of 1994
[18th of April, 1996]

Status: Reported at [1996] 1 IR 208

Hamilton C.J.	
I agree with the judgment about to be delivered by Blayney J.

O’Flaherty J.
I also agree with the judgment to be delivered by Blayney J.

Blayney J.
This is an appeal in a nullity suit against the decision of the High Court refusing to grant the relief sought.

The petitioner is the wife and the respondent is the husband. They were married on the 16th August 1985 in the Roman Catholic Church at C. Two children were born to the marriage: a son on the 6th August, 1987, and a daughter on the 8th December, 1988. Since in or around Christmas, 1989, the parties have been virtually separated though at the date of the hearing of the petition in February, 1994, they were both still living in the family home.

The wife presented her petition on the 20th June, 1990, and by order of the Master of the High Court made on the 10th April, 1991, it was directed that the following were the issues to be tried.

1.	Were the petitioner and the respondent able to enter into and sustain a normal functional lifelong marital relationship with each other by reason of their respective states of mind, mental conditions, emotional developments and personalities at the date of the marriage?
2.	Did the petitioner give a full, free and informed consent to the said marriage?
3.	Did the respondent give a full, free and informed consent to the said marriage?

While these were the issues directed to be tried, it is clear from the transcript of the evidence given at the hearing and from the judgment of the learned trial judge that the hearing in the High Court was concerned solely with the first and second issues. The learned High Court Judge did however express his view on the third issue also but it had never been contended by the husband that he had not given a full, free and informed consent to the marriage.

Having reviewed the facts and recited the medical evidence, the learned trial judge expressed the conclusion he had reached as follows:-

“The Court does not wish to apportion any blame. Indeed it would be impossible so to do. However, the Court is satisfied that both parties were capable of entering into, maintaining and sustaining a proper marriage relationship. Difficulties arose, particularly after the birth of the second child, …The petitioner has to satisfy me, at least as a matter of probability, that this marriage was null and void from its inception. I am not satisfied, as a matter of probability that such a case has been made out and in the circumstances refuse this petition.

I find that the petitioner and the respondent were able to enter into and sustain a normal functional lifelong marital relationship with each other. I also find that the petitioner gave a full, free and informed consent to the said marriage and that the respondent gave a full, free and informed consent to the said marriage.”

The notice of appeal sets out five grounds on which it is contended that the decision of the High Court should be reversed. The first four grounds are all concerned with the first issue, namely, whether the husband and wife were capable of entering into and sustaining a normal lifelong marital relationship. It is contended that they were incapable of doing so by reason of their substantially conflicting personalities, their perceptions of life and their immaturity at the date of the marriage; it was also contended that the learned trial judge failed to give due weight to the psychiatric and medical evidence to the effect that neither party was capable of entering and sustaining a normal marriage relationship with the other and gave undue weight and attached undue relevance to the statement made by Dr. O’S. that to grant a decree on the grounds of “personality complex” would result in chaos, so that the conclusion drawn by the learned trial judge was erroneous. On the second issue it was contended that the learned trial judge erred in law in holding that the wife gave a full, free and informed consent to the marriage in that there was uncontroverted evidence that the wife was unaware at the time of the marriage that the husband had attended a psychiatrist prior to the marriage and that she would not have agreed to marry him if she had known this.

Before dealing with the issues raised it is necessary to set out briefly the facts as found by the learned trial judge.

At the time of the marriage the husband was aged thirty seven and the wife thirty two. On leaving secondary school the husband had decided to become a priest. He spent one year in St. Patrick’s College, Maynooth, which he disliked, and six years in the seminary in C., where he was very happy. After ordination in 1972 he worked for four years as a curate but found the life lonely and difficult and he came to the conclusion that he had been mistaken in thinking that he had a vocation. At the suggestion of his Bishop lie went to D. for one year to get a post-graduate qualification in religious education and he then applied to be laicised. The laicisation process was commenced in 1976 and was not completed until 1981. In 1977, the husband commenced working as a teacher of religious education in a school in C. and still held that post at the date of the hearing in the High Court and in addition to teaching religious education he was also teaching media studies.

In 1976, the husband was sent by his Bishop to a psychiatrist, Dr. O’S., and the latter helped him through the difficult period while he was waiting for his laicisation to be completed. Between 1976 and 1982 the husband attended Dr. O’S, between three and six times each year, apart from 1978, when he saw him ten times.

The wife is a dental surgeon. She qualified about 1978 and in 1984 she was living and practising in the Midlands. Her parents lived in Cork.

The parties met at a night club in Cork some time early in 1984. They had an ordinary, uneventful courtship. They became engaged in January, 1985, and were married in August of the same year. They lived at first in the husband’s house. The wife sold her house in the Midlands. They then moved to a different house in C. The learned trial judge found the following facts in regard to the relationship of the parties in the early years of their marriage:-

“During the courtship, marriage and the honeymoon and indeed the first two years of the marriage the petitioner continued working in the Midlands and the respondent worked in Cork. This produced tensions because each left early in the morning and returned late in the evening and had very little time together. He wanted to establish a nuclear family but she wanted to spend every weekend with her parents and the rest of her family. They found this difficult. Their tiredness and their attitudes to the weekends produced tensions and stress. The first child was colicky, the result was that it was hard for the parents to get a full night’s sleep. The respondent was obsessive and brought his son to specialists when in the view of his wife their G.P. would have been adequate. There were scenes of violence which apparently were followed by scenes of regret. The petitioner complains that he did not want to go out anymore and that they had few visitors. He can lose his temper for the least thing. Once he blamed her for the camera not working and shouted at her. He abused her mother for putting wine in front of her when she was pregnant. He objected to his wife working, particularly having to travel the distance to and from work. She would not have married him if she had known that he had attended a psychiatrist for a protracted period during his laicisation. She agrees that he wanted to spend Christmas at his own home. However, she had a brother home from abroad and insisted on them going (where they had always gone) to her mother. She felt that she had an unfair share of responsibility for the children, home and house. She wanted a second child and she remembers getting an eternity (or possibly maternity) ring after the child’s birth and agrees there was a year of normality. He was studying for various degrees. He was not keen to bring the children to baby-minders. He was a very keen photographer. She objected to his activities in relation to photography. She also objected to him erecting an aerial which would take up most of the garden. He was very keen on radio. He had established a media course in the school. She also objected to him watching sport on television.”

The learned trial judge referred also to a row between the husband and his brother-in-law on Christmas Day in the home of his wife’s parents, as a result of which the husband was asked to leave the house. He was immediately contrite and tried to shake hands and did shake hands with some of the party. The wife told him she was leaving him. Six months later she instituted the present proceedings. The husband went back to see Dr. 0’S. in February, 1990. Dr. 0’S. also saw the wife. His view was that if he could exclude in the case of the husband “a psychosis of a paranoid nature” (which he subsequently did) he would recommend that they would both attend a professional for marriage guidance for a short while before deciding about the future of the marriage, but the wife was not interested in marriage counselling. She only went once or twice, while the husband went quite a number of times. The experts called were of the opinion that counselling might have worked and would have been a good option.

Having set out in his judgment the facts which I have summarised, the learned trial judge then went on to recite the expert evidence given by the medical witnesses: Dr. F., who was called by the wife, and Dr. O’S. and Mr. H., a senior clinical psychologist with the Southern Health Board in Cork, who were called by the husband. In addition to the oral evidence given by these witnesses, reports prepared by Dr. F., a letter written by Dr. O’S., and a report prepared by Mr. H. were admitted in evidence. A difficulty arises, however, in regard to how the Court should view the medical evidence as the learned trial judge did not expressly indicate what part of the evidence lie was accepting and what part he was rejecting. On behalf of the wife, Mr. Shatter submitted that the Court should assume that the learned trial judge accepted whatever evidence he did not actually reject, but it is not possible to approach the matter in this way as there was a clear conflict in some parts of the evidence. For example, on page 7 of his judgment the learned trial judge states that Dr. F. had expressed the opinion that the husband did not have the capacity, at the time of the marriage, “to sustain a valid marriage relationship” with the wife. And on p. 10 of his judgment, the learned trial judge cited the evidence of Mr. H. who had stated in regard to the husband that in his opinion there was “no evidence of a major personality disorder which would prevent him from either entering into or maintaining a normal stable relationship.” It is clear that the learned trial judge could not have accepted both these statements since they are so obviously conflicting. In the circumstances, the only way one can determine what evidence the learned trial judge accepted is to look at his conclusion and it is clear from this that he must have accepted Mr. H.’s evidence and rejected that of Dr. F.
		Or, to approach the matter in a different way, it seems to me that applying the principle laid down in Hay v. O’Grady correct test to apply to the conclusion reached by the learned trial judge on the first issue is to determine whether there was credible evidence to support it. If there was such evidence, then this Court cannot disturb the conclusion reached by the learned trial judge. And it seems to me that there was. Mr. H. who is a senior clinical psychologist, and whose qualifications as an expert were not questioned, gave clear evidence that in his opinion the husband was capable of entering into and sustaining a normal marriage relationship. There was also the evidence of Dr. O’S. which was cited by the learned trial judge at p. 9 of his judgment:- 

			“I think that personality complex as a ground for nullity results in chaos. If the parties here had worked at their marriage, they might not be here today. I felt a trained psycho-therapist was necessary because of subtlety which an ordinary counsellor might miss.”

Mr. Shatter in effect asked the Court to reject this evidence and prefer that of Dr. F., but that is the function of the court of first instance, which has seen and heard the witnesses and not the function of this Court. Once there is credible evidence to support the finding of the learned trial judge on the first issue, which in my opinion there is, this Court cannot disturb it. The fact that there may have been evidence which, if accepted by the learned trial judge, would have supported a contrary conclusion, is immaterial. The question to be considered is whether there is credible evidence to support the actual conclusion reached by the learned trial judge and I am satisfied that there was.

I now turn to the second issue, whether the wife gave a full, free and informed consent to the marriage. The point to be considered is a very net one but one of great difficulty. It is concerned solely with whether the consent given by the wife was an informed consent. It is not suggested that the wife’s consent was not freely given. The case being made by the wife is that it was not an informed consent because she had not been told by the husband that he had attended Dr. O’S. between 1976 and 1982 while his application for laicisation was being processed. The learned trial judge dealt with this issue in a single sentence at the end of his judgment:- 

“I also find that the petitioner gave a full, free and informed consent to the said marriage…”

The learned trial judge did not, however, point to any particular findings of fact as supporting this conclusion. Mr. Shatter submits that there is no evidence to support it but on the contrary that there was evidence which led inexorably to the opposite conclusion.

It seems clear from the decision of this Court in N (orse. K) v. K. [1985] I.R. 733 that for a marriage to be valid it is necessary that the consent of each spouse, in addition to being freely given, should be an informed consent. Finlay C.J. said in his judgment at p. 742:-

“Consent to the taking of such a step [i.e. entering into a valid marriage] must, therefore, if the marriage is to be valid, be a fully free exercise of the independent will of the parties.

Whilst a court faced with the challenge to the validity of a marriage, based on an absence of real consent, should conduct its enquiry in accordance with defined legal concepts such as duress or, what has been described by O’Hanlon J. as “the related topic of undue influence” (at page 281) these concepts and the legal definition of them must remain subservient to the ultimate objective of ascertaining, in accordance with the onus of proof, whether the consent of the petitioning party was real or apparent.”

	Griffin J. said in his judgment at p. 751:-

“It is therefore of the utmost importance that the contract of marriage should be entered into with the full and free consent of the contracting parties, and if, as the Chief Justice has stated in his judgment, the apparent decision to marry on the part of one of the parties has been caused to such an extent by external pressure as to lose the character of a fully free act of that party’s will, no valid marriage has taken place.”

Hederman J. said in his judgment at p. 753:-

“A personal and full internal and informed consent is essential to a valid marriage.”

McCarthy J. at p. 754 of his judgment refers to:- 

		“The need of a true voluntary consent, based upon adequate knowledge and freed from vitiating factors commonly described as undue influence or duress particularly those emanating from third
parties.”

On p. 755 of his judgment he said:-

“The test - whether or not each party to the contract brought an informed and willing consent to it - in my view, it is a subjective one, the burden of proving which lies upon the petitioner for a declaration of nullity.”

What has to be determined, accordingly, is whether the consent of the wife was an informed consent, a consent based upon adequate knowledge, and the test is a subjective one, that is to say, the test is whether this spouse, marrying this particular man, could be said to have had adequate knowledge of every circumstance relevant to the decision she was making, so that her consent could truly be said to be an informed one.

The wife relies on a single matter as establishing that she did not have adequate knowledge of all the relevant circumstances. The evidence relied on as supporting her case is contained in two answers which she gave in her direct evidence on the first day of the hearing:-

“81.Q.	What was your reaction to this when you heard that he had been attending a psychiatrist for seven years?
A.	I was completely stunned. It certainly, looking back, explained a lot that was unexplained previously. But it came as a complete surprise to me, I was given no inkling of that.
82.Q.	You have said you weren’t aware of this before the marriage, if this had been discussed with you before the marriage what would your attitude to marrying B.O’C. have been.
A.	I certainly would not have married him because those kind of psychiatric illnesses, you get remission but you never get a cure.”
B.	
The learned trial judge would appear to have accepted this evidence. He said at pp. 3/4 of his judgment in the course of setting out the facts of the case:-

“She would not have married him if she had known that he had attended a psychiatrist for a protracted period during his laicisation.”

Further, it is not denied by the husband that he did not tell the wife before they were married that he had attended Dr. O’S. .. between 1976 and 1982. So the issue comes down to this: Was this a relevant circumstance such that the failure to disclose it meant that the wife did not have adequate knowledge so that her consent lacked the quality of an informed consent? It seems to me that the answer must be that it was a relevant circumstance.

The test is subjective. Because of this, great weight must be attached to the wife’s evidence that had she known that the husband had attended Dr. O’S. for approximately six years she would not have married him. It is possible that another person would not have reacted in the same way, but this was the wife’s evidence of how she would have reacted if she had known and this was accepted by the learned trial judge. For her, accordingly, the fact that the husband had attended Dr. O’S. was a circumstance which would have influenced her in making up her mind. And it could not be said that it was not a circumstance of substance. Apart altogether from any question of psychiatric illness - and there was no evidence that the husband had ever suffered from such an illness - a person’s mental health or mental stability is obviously a matter of great importance and anything which might throw doubt upon it calls for serious consideration.

Because of this, the husband ought to have told the wife that he had attended Dr. O’S. His failure to do so deprived her of knowledge of a circumstance which was clearly relevant to the decision she was making.

For these reasons I would allow the wife’s appeal and declare that her marriage was null and void by reason of the fact that her consent to it was not an informed consent.