O’C. (M.) v. O’C. (M.) [2003] IEHC 48 (10 July 2003)
THE HIGH COURT ON CIRCUIT
SOUTHERN CIRCUIT
COUNTY OF CORK 
Record No.2003181 CA
BETWEEN
MO’C
APPLICANT
AND

MO’C
RESPONDENT
Judgment of Ms. Justice Finlay Geoghegan delivered on the 10th day of July 2003.

The appeal before me was limited to an appeal against the Order of the Circuit Court of 11 December 2002 dismissing the respondent's claim for a declaration that the marriage of the parties solemnised on the 29th of August 1994 is null and void. That claim was made by the respondent in the Circuit Court as a counterclaim to proceedings brought against him by the applicant under the Family Law (Divorce) Act 1996.

Subsequent to the Circuit Court hearing, and it was submitted by reason of the evidence given by a clinical psychologist during the Circuit Court hearing the respondent delivered without objection from the applicant and with the leave of the High Court an amended counter claim. The counter claim in its amended form pleaded, insofar as relevant:

"The marriage of the applicant and the respondent could not succeed by reason of a psychological incapacity/impediment or condition suffered by either or

-2-

both of the parties including immaturity such that neither could form and sustain a normal marital relationship with the others."

At the hearing before me the claim was further refined to rely exclusively upon the incapacity of the respondent to enter into and sustain a proper marital relationship. It was accepted that the respondent was not suffering from any psychiatric or mental illness but it was submitted  that he was at the time of the marriage suffering from a personality disorder such that he was incapable of entering into and sustaining a proper marital relationship.

The above ground was not a ground relied upon before the Circuit Judge. In the Circuit Court the claim to nullity was based upon duress and an absence of a full free and informed consent to the marriage by the respondent. This ground was not pursued before me.

The application of the respondent on appeal was opposed by the applicant.

THE FACTS

The respondent and the applicant each gave detailed evidence of their background, relationship prior to their marriage and up to their separation. This is well known to the parties and much of it not relevant to the issues which I have to decide. I am satisfied that each of the parties attempted to give their evidence in a truthful manner but their perception of events and explanations as to why they may have done certain things in the early nineties is undoubtedly coloured by their subsequent experiences and the benefit of hindsight. The essential chronology of events not in dispute is as follows.

The applicant and the respondent met in the autumn of 1992. Each-were very musical and immediately attracted to each other. The respondent had 

-3-

previously had at least three previous serious relationships. The applicant had had one previous serious relationship. They commenced having a full sexual relationship within a few weeks. They lived approximately twenty miles apart and the applicant spent a couple of nights a week in the respondent's house.

In the spring of 1993 the applicant became pregnant. The applicant was very upset at being pregnant without being married. In May 1993 the respondent purchased the applicant "a ring". It was perceived as an engagement ring. It is common case that there was no agreement to marry at that stage. The applicant commenced living full-time with the respondent in the summer of 1993. The relationship deteriorated. At the suggestion of the applicant's obstetrician the applicant and respondent attended Dr. Quayle a clinical psychologist in the summer of 1993. Dr. Quayle gave evidence before me.

In December 1993 their son was born. It is clear that each party has a considerable affection for and attachment to their son. In August 1994 the applicant and the respondent married in a catholic church. There is considerable dispute between the parties as to how they came to agree to marry and the extent to which the respondent participated in the planning for and organisation of the marriage ceremony and reception. It does not appear to me to be necessary for the issues which I have to determine to resolve those disputes.

Within approximately six weeks of their marriage there was what the respondent described as "a major blowout" when for no particular reason the respondent appears to have lost complete control of his temper, broke crockery and when the applicant came to calm him bit her hand. He now recalls saying at that time "now that's what marriage is all about" and experiencing a sense of being totally caged by the marriage.

-4-

The applicant and the respondent separated in the autumn of 1995. In the early autumn of 1996 the applicant applied to the relevant Roman Catholic Diocesan Tribunal for a decree of nullity of her marriage. In December 1996 following interviews with the applicant and the respondent, she was informed that the grounds upon which the validity of the marriage was to be challenged before the church tribunal were:

(a)	that the respondent suffered from a grave lack of discretion of judgment concerning the essential rights and obligations of marriage; and

(b)	that the respondent was unable to assume the essential obligations of marriage. A decree of nullity was subsequently obtained from the Roman Catholic Marriage Tribunal. A number of applications were made in the intervening years to the District Court. Evidence was not given of the nature of these applications. Ultimately in 1999 these proceedings were commenced by the applicant in the Circuit Court claiming divorce and consequentional orders. In response, as already stated, the respondent claimed a declaration of nullity.

THE LAW

There was no real dispute between counsel for the respondent and counsel for the applicant on the legal principles applicable to the issues which I have to determine. They appear to be the following.

A marriage is voidable by reason of the incapacity of one party. A decree of nullity may only be granted to a person upon the ground of his own incapacity if there has-been conduct on the part of the other spouse which amounts to repudiation of the marriage contract. The seeking of a decree of annulment in the Ecclesiastical courts of the Roman Catholic Church will amount to repudiation of the marriage (see

-5-

R (orse W) v. W (Finlay P. The High Court, Unreported, February 1980).

The grounds for nullity now include the fact that a person, at the date of marriage, lacked the capacity to enter into and sustain a proper or normal marital relationship. It is not necessary that such lack of capacity be by reason of psychiatric or mental illness. It may be caused by some inherent trait or characteristic in the personality of the person concerned, often referred to as a personality disorder. In U.F. (orse U.C.) v. J C. [1991] 2 I.R. 330 Finlay C.J. (with whom the majority of the Supreme Court agreed) stated

" ... the incapacity to enter into and sustain a proper marital relationship would appear to be valid not only in cases where that incapacity arose from psychiatric or mental illness so recognised or defined but also in cases where it arose, from some other inherent quality or characteristic of an individual's nature or personality which could not be said to be voluntary or self induced."

EXPERT EVIDENCE

Mr. Edward Hogan Clinical Psychologist was called to give evidence by counsel for the respondent. Mr. Hogan had first met the applicant and the respondent in 2002 and had interviewed each in the context of the Circuit Court proceedings. The assessment made by Mr. Hogan was on the basis of those interviews and the earlier facts as recounted to him by each of the parties. Mr. Hogan's considered view, albeit only from the position of having interviewed the parties in 2002 was that by reason of certain personality traits in the respondent which he identified in evidence he considered that there was "gravely absent" in him the capacity to sustain a normal marital relationship. He referred in particular to his self of obsession; a failure to 

-6-

develop "ego strength"; a lack of insight and a failure to take responsibility and accept blame Dr. Quayle Clinical Psychologist also gave evidence, called by counsel for the respondent. Dr. Quayle had seen each of the parties in July 1993. She had seen the applicant on at least two occasions one of which was with the respondent. She had seen the respondent on at least three occasions. She also saw the respondent again in November 1995 after the parties had separated. Dr. Quayle was initially asked to see the applicant in 1993 because her obstetrician was concerned about her emotional state. Dr. Quayle confirmed that in her view the applicant was at that stage very distressed at the thought of having a child without an engagement and marriage. Further that at that stage the respondent was adamant that he did not want to get married. Dr. Quayle stated she had ceased seeing the parties in 1993 as she believed that the applicant had hoped that Dr. Quayle would assist in helping the respondent to see his responsibility to get married. She stated that at that stage the applicant was anxious to get married and unable to accept that the respondent did not want to marry. She stated that at that stage the respondent was anxious to do the right thing and take responsibility for the child but not to marry. She was of the view at that time that neither party, in that context, was able to sustain a bond or marriage.

Dr. Quayle's assessment of the personality and capacity of the respondent to enter into and sustain a proper marriage relationship was based on her interviews with the applicant and respondent in 1993, the single interview with the respondent in 1995 and his account to her of his previous relationships. He had given to Dr. Quayle an account similar to that given in evidence of three prior relationships two of which ended with the termination of a pregnancy of his then female partner.

-7-

Dr. Quayle's assessment of the respondent was that he had a limited capacity to form and sustain an intimate relationship; also that he had a poor history in taking responsibility within a relationship and found it difficult to cope with the pressure and would give into pressure to be seen to be doing the right thing. It was her view as expressed in evidence that as a matter of probability in 1994 the respondent lacked the capacity to enter into and sustain a proper marital relationship.

CONCLUSIONS

The applicant and respondent were married in a Roman Catholic Church in 1994. The applicant repudiated the marriage by the claim made by her in 1996 to the Roman Catholic Marriage Tribunal for a decree of nullity. Accordingly the respondent is entitled to seek a decree of nullity from this court based upon his own incapacity to enter into and sustain a proper or normal marital relationship.

Whilst this court will of course take into account the expert evidence given by the clinical psychologists it is in the final analysis for this court to decide on the basis of all the evidence adduced in court whether the respondent has established that he was incapable at the time of his marriage of entering into and sustaining a proper marital relationship by reason of incapacity attributable to some inherent quality or characteristic. See P.C. & C.M. (orse C) The High Court, Laffoy J Unreported 11th January 1996 at p. 26. Further the appropriate standard of proof to be discharged by the respondent is proof on the balance of probabilities.

I have concluded on the basis of the evidence given by the respondent, by the applicant and of the evidence of the two clinical psychologists that as a matter of probability the respondent, in August 1994 did lack the capacity to enter into and

-8-

sustain a proper or normal marital relationship by reason of a personality disorder. Neither clinical psychologist heard the evidence of the other. I was struck by the similarity of the assessments made by each as to the particular personality traits of the respondent which each considered prevented him from having the capacity to enter into, a proper or normal marital relationship. Further those personality traits appear to me to be inherent characteristics of the respondent's personality which must be considered a personality disorder and to have been borne out by the evidence given by the respondent and to a lesser extent by the evidence of the applicant.

Accordingly I will vary the Order of the Circuit Court so as to grant to the respondent the decree of nullity and remit the proceedings to the Circuit Court to deal with all other issues relating to the parties' son and any property issues outstanding.