My blog is meant to inform but its primary purpose is not to be informative. It is about the law but it is not solely about the law but also about those places the law does not go. The law is the platform from which I dive. My blog is about my opinions but is not primarily about my opinions since I often temper these to the subject matter on hand, not to mention the imagined audience. Quite often when I open a subject which is related to the law for discussion, I find myself in a place I never meant to be, or to go, as if the subject takes on a life of its own. I write articles based on what I do for a living, and I am a family lawyer, but of course that is not all I am. I find that when I engage with a subject, and use writing to express my thoughts, that quite often the journey is more interesting than the end and that what I thought I was writing about is not what I wrote about at all. This seems to me to be a metaphor for life. I write, therefore, to throw some light into the dark, to increase my understanding and by extension hopefully, other people’s understanding of what often seems incomprehensible, to enliven the dull so my spirit does not sag and to throw some humour at what is often deeply sad so that I can, or maybe, dare I say hopefully, “we”, can gain perspective. I doubt I succeed but the effort is honest.
Monday, May 16, 2011
Void or Voidable – Nullity of Marriage
It is also, more than any other area of law, ripe for misunderstanding. Many are confused between Church Annulment and Civil Annulment to a point where some believe they are one and the same. When the Church of Ireland was disestablished in Ireland in 1869, the jurisdiction of the Ecclesiastical Courts of the Church of Ireland was transferred to the High Court under the Matrimonial Causes and Marriage Law(Annulment) (Ireland) Act 1870. So while the originating jurisdiction for annulment of marriage is Church based ie Church of Ireland, there is no ongoing relationship between any Church law and Civil Annulment law in Ireland. Therefore, if you obtain a Roman Catholic Church annulment it does not entitle you to remarry in the eyes of the State and has no bearing on whether or not you will be entitled to obtain a civil annulment. Part of the confusion here arises because of the manner in which Roman Catholic marriages are conducted where the civil part of the ceremony takes place in the sacristy in the Church itself. Naturally, people then assume that Catholic Church marriages are State Marriages and so it would probably be better for all concerned if parties marrying had to undergo a separate civil ceremony and then if wished a religious service.
The development of the Law of Nullity in Ireland was affected by our lack of divorce legislation particularly from the 1960s onwards. In common with most of Europe and America, Ireland experienced changes in gender role, social mobilization, sexual standards and behaviour from the 1960s onwards. These changes gave rise to increased tension between social behaviour and the law. This in turn, gave rise to a large increase in the numbers of petitions for nullity being granted by the courts and led to judicial development of the grounds for annulment. When we say “large increase” we are still talking about small numbers in the overall scheme of things. The cost of an application for annulment in the High Court up to the mid- 1990s would have, in and of itself, ruled it out for most people and this in turn led to the common suspicion, particularly among those who opposed this way of proceeding, that it was an attempt by the well-heeled to avoid the financial responsibilities incumbent on the breakup of a marriage. Since 1996 however, it has been possible to obtain an annulment of marriage from the Circuit Court as well as the High Court. This has the effect of making the remedy more accessible for many people and reducing the costs. Even though the courts extended the jurisdiction to deal with annulments to the Circuit Court in 1996 they did not take the opportunity to enact legislation in this area which was and is much needed. Legislation would have provided a much needed opportunity to educate the public on this provision and to engage in debate about the grounds for annulment and how extensive or narrow they should be. Many lawyers had assumed that as divorce is now legally obtainable in Ireland since 1996, that the numbers applying for annulment would drop and while they did initially, they subsequently rose. I don’t have recent figures so I am not clear if this trend has continued.
As a rule, the High Court hands down written judgements whereas the Circuit Court does not. This means that we have no way of knowing whether the Circuit Court is developing the law of annulment or retrenching on it. We don’t know to what extent precedents from previous High Court decisions are followed by the Circuit Court and whether their decisions are more in line with later developments or earlier decisions. Anecdotally it would seem that there is retrenchment but there is no certainty on this. There is also concern that whereas the High Court would have devoted time and detailed consideration to these cases, the Circuit Court does not have the time allocated to family law, particularly outside Dublin, and has enormous pressure on its lists, to properly hear such cases. The public has an interest in knowing what the law says and it also has an interest in knowing in an informed way what a court is likely to do in any given case. It would be extremely difficult for any practitioner to give an informed opinion of what a Judge is likely to do in the Circuit Court since there we have little or no recent written judgements by which we can assess the situation and these cases are not commonplace so an anecdotal body of evidence is unlikely also.
Annulment can be granted on the basis that a marriage is void or voidable. Grounds for a void marriage are:
1. An existing valid marriage.
2. Parties are under age and did not receive a court exemption. At present the age is 18 for both sexes.
3. Substantial failure to observe formalities.
4. Absence of consent.
5. Parties are within the forbidden degrees of relationship
6. Couple are of the same sex.
On the face of it most of these areas are self explanatory and the number of cases where such issues would arise except perhaps for No 4 would be very small however, there does seem to be a public interest in retaining these grounds. The state has an interest in regulating marriage and if that is acknowledged then adherence to the formalities would be desirable. However, there is some debate in relation to 4, 5 and 6. Looking at 5 and 6 first, there are presently 29 types of relationship which are forbidden in respect of marriage. Many of these are now obsolete and the state needs to legislate on this and bring it into line with modern thinking. Marriage has been defined in the law as “The voluntary and permanent union of one man and one woman to the exclusion of all others for life.” This means that the marriage must be entered into freely and without force and it must potentially be for life, it must be monogamous and it must be between parties of a different sex. Maybe this definition needs to be re-examined. As regards couples of the same sex, I have already expressed the view that as far as I am concerned parties of the same sex should be able to marry, nonetheless, even if marriage is reserved for those of different sexes, there are still potential problems for those who have changed the sex with which they were born to the opposite sex which makes the definition, though handy, worthy of some reconsideration and debate. The area in which the court has extended itself most is in the area of lack of consent or No 4. Prior to 1970 the law on this was fairly clear. You could only plead lack of consent in a very narrowly defined set of circumstances eg. Duress, misrepresentation or mistake. To succeed in a plea of duress there had to be a threat of a very substantial nature to life, liberty or limb. However, the judicial approach to this area has greatly broadened over the years. Now the court looks for “ full free and informed consent” as the yardstick by which they measure consent or the lack thereof. It is no longer necessary to establish duress, it is enough to show absence of consent. There is, therefore, a considerable expansion in the range of circumstances that will now potentially qualify as lack of consent. It is now the case that even emotional pressure will be sufficient to undermine consent as in the case of S v O’S 1978 where Judge Finlay found that the petitioner had been in emotional bondage when she married due to the Respondent’s constant claims that without her constant attention he would die. Again, the distress displayed by a Respondent when the Petitioner would try and break off the engagement was considered by the court to exercise a form of duress on her and thus she did not give a full and free consent to the marriage (O’R and B)1995. It is important to note that where previously the fear, threat or duress which a party claimed to have been under would have had to seem reasonable to an ordinary person now the test was subjective which meant that as long as it put that particular person in fear it was sufficient. So a person who was exceedingly shy and reserved was more likely to have succumbed to pressure from her parents than others of her age as found in N (orse K) and K 1986. For misrepresentation to succeed, the Petitioner had to establish that the error was such that there was “the appearance without the reality of consent”. This situation would only arise if there was an error relating to the nature of the ceremony as occurred when an Italian man who spoke practically no English thought he was entering into a ceremony of betrothal. It might also arise if a person was drugged or excessively drunk. Misrepresentation would also occur if a person was unaware of the true identity of the person they were marrying and it is important to stress that identity here does not encompass the characteristics of a spouse. The concept of misrepresentation was also broadened and it is now generally accepted that where a party was deceived as to a fundamental feature of the marriage, the resulting marriage was void for lack of consent. It is important to note that the essential issue here was the consent and whether or not it was lacking and not necessarily the basis of reasoning behind it. However, when Judge Lavan was asked to find that a Petitioner had not consented because he was deceived as to the age of the Respondent, he did not feel that this merited a finding the marriage was void. (PM and TR) 1998. Equally, Judge O’Higgins felt that there was no obligation on the parties to disclose inappropriate behaviour to one another which had occurred before the marriage. It would appear therefore, that the courts have rowed back a little on this one. However, while it is arguable that deception does goes to the heart of such a contract, it is a question of degree and actual deception as opposed to hindsight. As in the case of MO’M and BO’C 1996 it must be matter “of substance” which has been misrepresented or there is failure to disclose.
Marriages can be deemed voidable. Grounds for voidable marriages are:
1. Incurable psycho-sexual impotence
2. Inability to enter into and sustain a normal marital relationship.
By their very nature nullity cases can be excruciating to sit through. A forensic examination of other people’s sex lives can be very hard on the nerves of all concerned. In a straight forward physical sense, for a marriage to be consummated there must be penetration of the female by the male which cannot be partial and which does not require insemination as part of the process. I will leave you to squirm with that one. Sometimes a person may not in fact be impotent but just not able to consummate with a particular person. This is referred to as psycho sexual which is, to put it mildly, difficult to prove one way or the other. There is an exceptionally fine line between wilful refusal and psychological repugnance. And so you have Judges saying things like a man of stronger constitution would have overcome his wife’s reservations which is another way of saying ....? You got it!
The blurring lines get even more blurred when we come to No 2 above. This ground appears to be a judicially developed ground rather than one that previously existed. Initially, it was thought that this ground could only be invoked when the incapacity arose from a recognized psychiatric disease however, as time went on, it became apparent that some personality disorders would qualify and even severe lack of emotional maturity (BD v MC (orse MD) ) 1987. Again, it is a question of degree and it is clear that the immaturity would have to be of a serious order. Given, however, the lack of legislation in this area and the lack of jurisprudence in the Circuit Court particularly, it is very subjective to each particular judge. This makes for a great deal of uncertainty in this area when it comes to advising a client. While it is arguable that the law should never be entirely pinned down and should be adaptable to different people’s circumstances to some extent, it is still the case that some certainty is desirable and expected.
So should we continue to have the remedy of annulment in civil law or should we deal with all marital breakdown in the context of separation and divorce? There are some strong arguments for retaining annulment as a remedy particularly in the area of a void marriage, ie void ab initio. However, it does seem to me that lack of consent needs to be carefully re-examined in the light of new legislation. As regards voidable marriages, I concur with various reformists in that I think these areas are too woolly to make good law and should be left to divorce to sort out. However, I would not be in favour of legislation which confines the grounds for annulment to those grounds which constitute a void marriage when we cannot get a divorce for 4 years and so it would be my view that we need to reduce the requirements to be eligible for a divorce to 2 years rather than four and secondly, we need to have provision in our legislation for a clean break. There are many other legal anomalies which result from annulment and vary depending on whether your marriage is void or voidable and these could be remedied by doing away with voidability once and for all.