THE HIGH COURT
		                                                           CIRCUIT COURT APPEAL 
                                                                                                RECORD No. F26/1997
IN THE MATTER OF THE JUDICIAL SEPARATION AND FAMILY LAW REFORM ACT, 1989 
AND IN THE MATTER OF THE FAMILY LAW ACT, 1995 AND IN THE MATTER OF THE FAMILY LAW (DIVORCE) ACT, 1996
BETWEEN
D. McC. 
			APPLICANT
AND
E. C.
			RESPONDENT

JUDGMENT of Mr Justice McCracken delivered the 6th day of  July 1998.
	This is an appeal from a decision of His Honour Judge Harvey Kenny given at Castlebar on 6th November, 1997, whereby he dismissed the Applicant's claim for a decree of nullity.  I had the benefit of hearing considerably more evidence than was before the Circuit Court, and in particular I heard psychiatric evidence from two expert witnesses.
	The Applicant and the Respondent went through a ceremony of marriage on 11th February, 1994 and lived together until December 1994, when the Applicant left home.  The Applicant claims that, at the time of the marriage, neither he nor the Respondent gave their full free and informed consent to the marriage, and further at the date of the marriage each of them lacked the capacity to enter into and sustain a normal marital relationship with the other.  At the time of the marriage both parties were in their late twenties, and they each had a child from earlier relationships.
	The Applicant was born in a country town in Northern Ireland and was the eldest of four children.  From the age of six until he was about fourteen years of age he suffered serious sexual abuse and some physical abuse on a regular basis by his father.  His mother, who gave evidence before me, claims that she was unaware of the sexual abuse of the Applicant, but she herself suffered regular physical abuse from the Applicant's father, and finally left home with the three younger children when the Applicant was fifteen years of age.  The Applicant remained with his father, as he was at that time about to sit his O levels in school and his mother did not want to disrupt his education.  By this time, the sexual abuse had stopped, but the Applicant had got into the company of teenagers who drank regularly in a local park.  He did badly in his O levels and left school shortly afterwards and when he was seventeen he left home and went to live with his girlfriend.  By this time he was drinking heavily.
	His relationship with his girlfriend lasted on and off until January 1993, and there was a child of the relationship born in 1988.  This appears to have been a somewhat erratic and rather stormy relationship with the parties separating and coming together again on a number of occasions.
	The Applicant's relationship with his father was a strange one.  Despite the sexual abuse which he had suffered as a child, the Applicant stayed with his father until he was seventeen, and even after he left, he continued to have contact with his father, and in fact played in a band with his father for some time.  He had little or no contact with his mother for some years after she left.
	In 1990 the Applicant spent some time in a psychiatric hospital in Northern Ireland being treated for his alcoholism, but started drinking again a few months after leaving hospital.  By early 1992 he was drinking very heavily, had lost his job and was suffering from depression and felt suicidal.  He was persuaded to attend Alcoholics Anonymous and with their help he stopped drinking at the end of May 1992, and has kept off alcohol since that time.
	The Respondent did not have the same unhappy family situation as a child, but in her early teens she also began drinking, and quickly became an alcoholic.  By the age of seventeen she had a serious alcohol problem, and was admitted to hospital.  At nineteen years of  age she was also introduced to Alcoholics Anonymous, and stopped drinking.  She had a child when she was twenty-two, but managed to remain alcohol free until after her relationship with the Applicant ended.	
	Both the Applicant and the Respondent continued to attend Alcoholics Anonymous regularly, and in January 1993 they met at a weekend Convention of that organisation.  They appear to have been immediately attracted to each other, and after the Convention kept in touch by telephone and correspondence, although he was living in Northern Ireland and she was living in the West of Ireland at this time.  About this time, and  probably as a result of meeting the Respondent, the Applicant finally broke off his relationship with his partner in Northern Ireland.  In February 1993 he came to visit the Respondent at her home.  He claims that during that visit, which was only the second time they had ever met, the Respondent proposed to him.  She denies this, but I have no doubt that marriage was in both of their minds at a very early stage.  Several other weekend visits took place, and at the end of March 1993 they became formally engaged to be married.  The Applicant was working in Northern Ireland at this stage, but in June 1993 he left Northern Ireland and he came to live with the Respondent in her house.  In September of that year he got a job nearby, and he also began to perform music in pubs in the area in the evenings.
	The couple ultimately went through a marriage ceremony on 11th February, 1994.  It appears to have been a large wedding, which was paid for by the Respondent's mother and brother.  After the wedding, the relationship deteriorated fairly quickly and there were several violent incidents.  The Applicant also left the home on several occasions, although he always returned.  
	In September 1994, a further tragic incident took place.  The Applicant's former girlfriend, with whom his child was living in Northern Ireland, died tragically in a fire at her home.  After this the relationship between the Applicant and the Respondent deteriorated rapidly, and the Applicant finally left home in early December.  In all, the marriage lasted for just over nine months.  
	In evidence, the Respondent has said that at the time of the marriage the Applicant was very well, and has also said that the Applicant did not strike her as being a vulnerable person.  However, he did talk frequently of the inner baggage which he carried, and had a lot of books on healing the inner person and relating to abused children.  The Respondent blames the marriage breakdown largely on infidelity on the part of the Applicant, and also on disputes about money.
	Having heard both parties giving evidence, I have no doubt that the Applicant is, and probably always was, a very vulnerable person.  He impressed me as being very insecure and the type of person that would always seek somebody else to act as a crutch.  Evidence was also given by a Consultant Psychiatrist who stated that he presented as being immature, naive and showing poor judgment in relation to social and interpersonal situations, and further said that "he exhibited psychological vulnerability and dysfunction which can be understood in the light of his childhood and adolescent experiences of both physical and sexual abuse".
	Evidence was also given by a Consultant Psychiatrist on behalf of the Respondent who had seen the Respondent, and was of the view that, as at the time of the marriage she had been sober for ten years, she was perfectly capable of understanding the commitment necessary for a successful marriage, and that there were no psychiatric impediments to her marriage.  I accept his evidence, and insofar as the Respondent is concerned, although she reverted to alcohol for a time after the separation, I think that she was fully able to sustain a marital relationship.  She now appears, perhaps understandably, to be rather bitter and convinced of the Applicant's infidelity during the marriage.  I do feel, however, that she has little insight into the problems of the Applicant.
	The law as to circumstances giving rise to nullity has developed considerably over recent years.  In DC -v- DW (1987) ILRM 58 it was held by Blayney J. in a case where the petitioner was at the date of the marriage suffering from a psychotic illness and was unable to enter into and sustain a normal marriage relationship, nevertheless the petitioner could not rely on that ground as avoiding the marriage unless she could establish that the respondent had previously repudiated the marriage.  This was following a line of earlier authorities, most of which related to applications for nullity based on the impotence of the petitioner.  In the present case the marriage has certainly not be repudiated by the Respondent.
	The requirement for repudiation in cases such as the present one now appears to have been rejected by the Supreme Court.  In PC -v- VC (1990) 2 IR 91 at page 107, the Chief Justice said:-

	"In the present case while I have come to the conclusion that there were elements of emotional immaturity and psychological disorder on both sides which prevented the formation of a normal, viable relationship with each other, I would consider that these features and traits of character were much more marked in the case of the husband than in the case of the wife.  As there has been no repudiation of the marriage contract on her part at any stage but rather the strongest possible affirmation of it, can the husband rely on what is in large measure his own want of capacity?

	In my opinion, he can, primarily because of the fact that the want of capacity existed to some extent on both sides, as it did in BD -v- MC.  If necessary, however, I would also incline to the view that as both parties entered into the marriage contract innocently, in the sense that they were unaware that by reason of factors connected with the personality and psychology of each partner, it would be impossible for them to sustain a normal marital relationship for any length of time, the petitioner should not be denied a decree of nullity because the respondent wishes to hold him to the marriage bond". 
      
 	In my view this is the correct approach.  The earlier attitude was based on the premise that marriage is a contract, which it undoubtedly is, and that it should be treated in the same way as every other contract.  However, marriage is a very specific and unusual form of contract which involves complex human relationships.  The concept of nullity as it has been developed by the Courts is not a concept known to the ordinary law of contract.  If a person enters into a contract, which the party is unable to perform, there may still be a valid contract, and the other party may recover damages for breach of that contract.  However, the whole principle of nullity is based on the fact that there may be circumstances in which, although the contract was formally entered into, it was in fact totally void solely because one party was unable to perform the contract at the time it was entered into.  It is the whole essence of nullity that there never was a contract of marriage, the parties never were married, and no obligations arise on either side.  It is not a question of a breach of the contract of marriage, but of its existence, which is why the person whose marriage has been declared a nullity is free to re-marry.
	In the present case I am quite satisfied that the Applicant was extremely immature when it came to entering into close emotional relationships with other people.  He had had an appalling childhood, the memory of which he sought to lessen by the use of alcohol.  Unfortunately that use became an abuse and he became an alcoholic.  It is indeed accepted by the Respondent and by the Psychiatrist that an alcoholic ought not to make serious decisions or commitments for the first year or two after he stops drinking.  This is a rule of thumb which is applied to alcoholics who may have no problems other than their addiction, but the Applicant in this case had the combination of his addiction and his childhood abuse to cope with.  He in fact got engaged within a year of having stopped drinking, and got married within two years.  He had come from a very volatile and insecure relationship with another girl over a period of years during which, despite their having had a child, he was clearly not able to enjoy the type of relationship which marriage requires.  Indeed, he had never known or been in a home with a proper marriage relationship at all, as his father had sexually abused him and physically abused his mother for years.  I am satisfied that he did not fully understand the nature of a proper marriage, and certainly was incapable of entering into or sustaining a normal marital relationship with the Respondent.  Accordingly, I will grant a decree that the marriage entered into between the Applicant and the Respondent is null and void.