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High Court of Ireland Decisions |
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You are here: BAILII >> Databases >> High Court of Ireland Decisions >> O'S. v. W. (Orse. O'S.) [1989] IEHC 14 (25 July 1989) URL: http://www.bailii.org/ie/cases/IEHC/1989/14.html Cite as: [1989] IEHC 14 |
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1987/41 M
PETITIONER
RESPONDENT
Judgment of Mr. Justice Costello delivered the 25th July, 1989.
The petitioner married his wife on 28th September, 1985. They lived together for only about eleven months. On 3rd December, 1987 he petitioned this court for a decree of nullity pleading that he "did not fully and freely consent to the marriage to the respondent in that he entered into the said marriage under duress". The petition has not been defended and I am satisfied that there is no collusion between the parties.
The petitioner was born on 18th October, 1951 and so was nearly 34 years old when he married. His wife was 29. He had left school at the age of 16 and has had steady employment as a truck driver for a number of years. His wife was a shop assistant. He had known her for five years before they married and had been engaged to her for three. They both attended a pre-marriage course in January/February, 1985 and during it the petitioner formed doubts as to the wisdom of the marriage which he did not then convey to the respondent. All the arrangements for the wedding were made by the respondent but about three months before it was due to take place the petitioner-expressed to her the doubts he was experiencing. She made light of his worries and did not take them seriously. About two months before the wedding he was more definite and he told her that he wanted to call the wedding off. She was very upset at this attitude and insisted that the marriage should go ahead. She called to see his mother and told her she intended to consult a solicitor if the petitioner did not go ahead. He himself consulted a solicitor who told him that his fiancee might have a legal claim against him if what he had done had affected her mentally. Reluctantly he decided to go ahead with the marriage, but he told his brother-in-law at a party given by some of his friends a few days before the wedding that he didn't want to go through with it. His attitude, he explained, was that he did not wish to marry her and that he no longer loved her.
The marriage, not surprisingly, was not a success. The petitioner and his wife rowed frequently, and after some months they slept in separate rooms. The following August his wife left him and they have not lived together since. He has brought this application not because has any present intention to re-marry but because he did that he ever- should have married and he thinks that should be annulled.
I have of course great sympathy for the predicament in which the petitioner now finds himself (and also for his wife) which I cannot allow to influence my decision - that must be arrived at by the application of legal principles to the facts of this case. The law of duress in the law of nullity has been developed in this country in recent years, most notably by M.K. (McC).v. F.McC. (1982) ILRM 277 and N (otherwise K).v. K (1986)ILRM 75 It is now well established that to obtain a decree the ground of duress it is not necessary to establish that something in the nature of actual violence or threats of violate calculated to produce fear of loss of life or bodily harm. As pointed out by the Chief Justice in the latter case (at p. 82) the consent to marriage must
"be a fully free exercise of the independent will of the parties. Whilst a court faced with a challenge to the validity of a marriage, based on the absence of real co:7sent, should conduct its inquiry in accordance with defined legal concepts such as duress .... 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".
I think the evidence in this case falls short of what the law requires before a marriage can be annulled on the ground of duress. The petitioner at the time of the marriage was a mature intelligent adult. He suffered from no psychiatric illness or personality disorder. He obtained the opinion of a psychiatrist for the purposes of this case whose testimony, which I accept, was to the effect that he tends to have problems with decisions of any importance, changing his mind again and again, and often after taking a decision, regretting it again. The respondent's reaction to the doubts he expressed to her about going on with the marriage was a natural one.
The petitioner, who gave his evidence very fairly without any deliberate attempt to exaggerate what occurred, told me that he had fears that she might kill herself or that she might have a mental breakdown if he did not go on with the wedding, and that these were factors which influenced his decision. But there is very little objective evidence to justify either of these fears and I cannot think that the petitioner entertained them to any considerable extent. There is no evidence that she was a domineering sort of woman and whilst he took the threat of legal proceedings sufficiently seriously to cause him to consult a solicitor the threat did not overbear his will to such an extent as to vitiate his ultimate decision. I think his consent was a one given with considerable misgivings but I cannot hold that either the actions of the respondent or the factual situation in which the petitioner found himself resulted in it being a mere apparent one or sham.
I must therefore refuse the relief sought in this petition.
