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You are here: Home >> Press Section >> Divorce means Courts unwilling to widen scope of Nullity |
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| Divorce means Courts unwilling to widen scope of Nullity |
| Reproduced from The Sunday Business Post |
| Sunday, December 3rd 2000 - Kieron Wood |
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| In March 1999 the High Court refused a Decree of Nullity to man whose wife had an affair with her employer shortly after the marriage. The man known by the initials PF and described as a member of a successful business family claimed that if he had known she was having an affair, he would not have married her. He said his consent to the marriage was therefore not full, free and informed. The Supreme Court disagreed and last Tuesday dismissed his Appeal. In the course of the Judgment Mrs Justice Catherine McGuinness, an experienced Family Lawyer called on the Government to clarify the Law on Nullity. She said that in the days when Divorce was unavailable in Ireland, there might have been some advantage in allowing the Courts to develop the Law of Nullity but now that Judicial Separation and Divorce were both available, the Oireachtas should provide a clear statutory code setting out the grounds for Nullity and its consequences for the couple and any children. Before the introduction of Divorce in Ireland in February 1997, a married person could only re-marry after obtaining either a recognized foreign Divorce Decree or a Decree of Nullity. |
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Foreign Divorces were difficult and expensive. As for the Divorce to be recognized in Ireland, one of the parties had to be domiciled in the country where the Decree was granted. If a person attempted to re-marry after obtaining an unrecognized foreign Divorce or a Church Nullity alone, the subsequent marriage would be bigamous and void.
State Nullity Decrees (not to be confused with Ecclesiastical or Church Nullity Decrees) allows civil re-marriage on the basis that the couple were never properly married.
It is important to realize that a Nullity Decree relates to the situation at the time of the marriage and not thereafter. For example if the parties are not male and female, the relationship cannot be a marriage no matter how long the couple remain together. In the 1998 English case of ST -v- J, the Defendant had been a female but underwent a partial sex change some time before the marriage. For 17 years the wife remained unaware of her husband’s true gender until the production of the Birth Certificate at the Divorce Hearing. As a result the wife applied for and was granted a Decree of Nullity. The Courts may also declare a marriage void where: |
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| a) | There is an existing valid marriage. | | b) | Either party was under 18 and had not received a Court exemption. | | c) | There was substantial failure to observe formalities (such as the required three month notice). | | d) | There was absence of consent (including duress, undue influence, fraud and mental illness), or | | e) | Parties were within the forbidden degrees of blood relationship. |
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A Decree of Nullity has wide implications for the couple and their children. The Decree allows either parties to re-marry or rather to marry as the first marriage was not valid.
The parties may no longer avail of constitutional or legislative protection for the family as they are no longer husband and wife. Their children become non marital children although with the same Succession Act Rights as marital children. An agreement entered into on the basis that the couple were married such as a Separation Agreement would be null and void. If the family home is registered in the name of one partner, he or she would have the right to sell it without the written consent of the other.
Most frequently Nullity Applications are based on a claim that one or both of the parties had not given a full and free consent to the marriage.
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| In last week’s case the husband claimed that his wife was having an affair with her boss referred to simply as Mr K before and after the marriage. Despite the wife’s denials Mr Justice O’Higgins in the High Court concluded that the allegations were true. But he said that the non disclosure of inappropriate behaviour before or during courtship was not a ground for Nullity. It is not incumbent on the parties to give a history of their good or bad behaviour prior to getting married in order to contract a valid marriage. In this case the parties had a courtship which lasted several years. They knew prior to getting married the nature of the Contract that they were undertaking. |
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| The husband’s Counsel Gerry Durcan SC pointed out that in 1991, the case of MJ –v- CJ, a wife had been granted a Decree of Nullity because her husband admitted three days after the wedding that he had been involved with a mother of two until just before the marriage. He had previously denied the relationship but Mr Justice O’Higgins said the two cases were not the same. He said in that case MJ -v- CJ, the Petition was unopposed and one of the parties was not legally represented. Furthermore it is an Extempore Judgement delivered in circumstances where it was not necessary for the learned Judge to rise to consider its Decision. Moreover the Decision is based both in the absence of true consent and because the parties lacked due discretion. Counsel for the wife Maire Whelan said misrepresentation was not a ground for Nullity. She argued that the Court should not expand the existing grounds for Nullity so far that there would be doubt about the validity of every marriage. The remedy for voluntary misconduct she said was Divorce not Nullity. Until three years ago, that was not an option. But since 1997 it has become an increasingly popular choice for those wishing to re-marry. Ireland has followed the example of other countries where the introduction of Divorce has led to a substantial drop in the number of Nullity Applications. In England and Wales for example the number of Divorce Applications more than trebled from 45,000 in 1968 to 143,000 in 1978 following the easing of restrictions on Divorce in 1969. The number of Nullity Applications dropped by more than 70% from 941 in 1978 to 267 in 1998. In Ireland the number of Nullity Decrees had been rising inexorably before Divorce was introduced. In 1981 eight Nullity Decrees were granted. By 1990 figure that figure had risen to 30 and by 1997 to 53. But following the introduction of Divorce, the number of Nullity Applications almost halved from 86 in 1995 to 48 the following year. At the same time the number of Applications for Divorce saw a steady rise. In 1996-97 the Circuit Court granted 93 Divorces. The following year it granted 715 (with 729 Applications on hand). Last year the Court received 3,293 Applications for Divorce and just 86 Nullity Applications. |
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 For further information, please contact Marion Campbell Solicitors by calling (01) 475 9345, or by filling out an on-line enquiry form. |
