Supreme Court dismisses annulment appeal where misrepresentation and immaturity do not prove lack of capacity to marry.

THE SUPREME COURT

(Matrimonial)

Kearns J. Appeal No. 8/2005

Macken J.

Finnegan J.

BETWEEN

L.B.

PETITIONER/APPELLANT

AND

T.MacC.

RESPONDENT

JUDGMENT of Mr. Justice Kearns delivered on the 6th day of March, 2009

This is an appeal from the refusal of the High Court (O’Higgins J.) to grant an annulment of the petitioner’s marriage to the

respondent. The parties were married on the 5th May, 1993 according to the rites of the Church of Scotland in Glasgow.

They subsequently had two children, A.MacC, born in May, 1994 and S.MacC, born in September, 1997. The petitioner is

an Irish citizen and the respondent is a citizen of the United Kingdom and is from Scotland. At the time of the marriage, the

petitioner was domiciled in Ireland and the respondent was domiciled in Scotland. After the marriage, the petitioner lived and

cohabited with the respondent at an address in Glasgow and also in a rural part of the south of Ireland.

The parties separated in 1997 whereupon the respondent commenced judicial separation proceedings. It was agreed that

those proceedings should be adjourned pending the outcome of this case. On 4th May, 2000, the parties entered into an

agreement dealing with many of the issues in the judicial separation proceedings, including arrangements for the custody of

the children. The learned High Court judge was satisfied that there was no question of any collusion between the parties.

Apart from nominating a solicitor for the purpose of the serving of documents, the respondent has chosen to take no part in

these proceedings.

Paragraph 7 of the petition dated 12th May, 1999 stated that:-

“Your petitioner’s consent to the marriage was not fully informed and was obtained by misrepresentation of

fundamental facts and fraud on the part of the respondent in respect of his personal circumstances, his family

circumstances, his character and his intentions.”

Paragraph 8 of the petition further asserted that:-

“The respondent lacked capacity to marry in that he suffered from psychological immaturity and under-

development of character to such an extent that he was incapable of maintaining a normal marital relationship

with your petitioner and was pathologically given to deception and concealment in relation to his circumstances,

intentions and emotions in such a way as to wholly prevent and undermine the development of any proper

matrimonial relationship.”

The misrepresentation and fraud alleged against the respondent in relation to his personal circumstances, his family

circumstances, and his professional circumstances, include assertions that:-

(a) The respondent represented himself to the petitioner as a man of substantial wealth and position in society. He concealed

from the petitioner that he was chronically indebted and

incapable of managing his own financial affairs.

(b) The respondent represented to the petitioner that he was the owner of a substantial home which he proposed to be the

family home but which was, in fact, encumbered with debt to

such an extent that he was obliged to sell it within a year of the marriage.

(c) The respondent wholly misrepresented to the petitioner the extent of his status as a partner in a Scottish business

partnership from which, owing to his inability to commit himself to

work and to further his own financial interests, he was unable to derive an income in any way adequate to meet his own

financial commitments.

(d) The respondent concealed from the petitioner the fact that demands were made by his business partners that he should

improve his performance and invest in his partnership and

concealed also other circumstances which led to the collapse of his partnership in the year following the marriage.

(e) The respondent represented to the petitioner that he was the son of a happy and functional family and that the petitioner

would be part of this extended family life. However, after the

marriage, the petitioner never met any members of the family apart from his parents with whom the respondent had an

unusual and secretive relationship.

(f) The respondent represented himself as someone who was outgoing, honest and interested in establishing and sustaining a

matrimonial relationship with the petitioner. However, after

the purported marriage, the petitioner discovered that the respondent was dishonest both in his business and personal

dealings, untrustworthy, given to practising deceptions on a

routine basis, and incapable of addressing social and economic realities on any realistic basis.

(g) The respondent, instead of acting as a normal breadwinning member of the family, took every opportunity to avail of the

petitioner’s resources and to become financially dependent

upon the petitioner and avoided his financial and family responsibilities to a wholly unwarranted extent.

(h) The respondent continually incurred indebtedness in a reckless and irresponsible way without any regard to his capacity

to defray such debts.

(i) Following the birth of A.MacC, the respondent demonstrated little or no interest in sustaining a sexual relationship and

drank excessively and remained secretive about his personal

feelings, emotions and activities.

(j) The respondent demonstrated complete emotional immaturity and incompatibility with the petitioner.

EVIDENCE BEFORE THE HIGH COURT

While the inferences drawn from the facts as found by the learned High Court judge are under attack in this appeal, there is

no suggestion that the primary facts as found by the learned High Court judge were in any way incorrect. The following

summary of the evidence in the High Court therefore borrows heavily from the judgment of O’Higgins J. delivered on 20th

December, 2004.

The petitioner is a professional person with a practice in the south of Ireland. She became National President of a voluntary

organisation for business and professional people and through that organisation met the respondent in 1988. A relationship

between the parties did not develop until June, 1992 and the parties became engaged in December, 1992 and were

subsequently married in Scotland in May, 1993. At the time of the marriage the respondent was a partner in a Scottish

business but he was in dispute with that firm and left the practise in 1994. He had bought a house in Scotland in 1991 or

1992 but he had to sell it in November, 1994 to cover debts incurred by him and of which the petitioner was unaware. The

petitioner gave evidence that the respondent had never told her of his financial difficulties or the facts of his professional

dispute.

Subsequent to the marriage, the respondent was far from successful in his financial and business dealings. On the contrary,

he was a considerable financial burden to the petitioner and a constant drain on her financial resources. The difficulties

became apparent at an early stage of the marriage. Contrary to the expectations of the petitioner that the respondent’s family

would pay for the wedding celebrations, the petitioner had to pay herself both for the wedding celebrations in Scotland and

for the celebrations subsequently held in Ireland. The petitioner had understood from the respondent that he was a member

of a close - knit family, but subsequent to the marriage she discovered that the respondent did not appear to have any close

relationships with his extended family other than with his parents.

The parents of the respondent spent the first Christmas after the marriage in Ireland and the petitioner returned with the

respondent to Glasgow after Christmas in the expectation of Hogmanay celebrations with the respondent’s extended family.

However, these celebrations never occurred and, with the exception of one couple, the parties had no further contact with

the respondent’s extended family.

Making the best she could of things, the petitioner subsidised the rental of office space for the respondent in Dublin while he

sought work and resided in an apartment owned by her parents. She supported him generously and financially through a

number of unsuccessful business enterprises. Throughout the marriage she was the main breadwinner. It became

increasingly apparent to the petitioner that the respondent was unlikely to succeed in various projects into which he launched

himself. For example, he attempted to obtain a franchise for the sale of certain fast food products in Ireland but that required

security of £150,000 which the petitioner decided she would neither pay nor guarantee.

Following the separation, which took place on 4th July, 1997, the respondent returned to Glasgow and the petitioner

eventually met him several weeks later in her office. The respondent asked if they could get back together again but the

petitioner refused. Shortly afterwards, on 23rd July, 1997 the plaintiff received a lengthy handwritten love letter from the

respondent but, although she was six months pregnant at the time with the respondent’s second child, she felt such a sense

of estrangement from him that she indicated she wanted no further involvement with him.

What might be described as the final nail in the coffin was the discovery by the petitioner that, at the very time the

respondent wrote the love letter, he sold five valuable books which were the property of the petitioner. He also tried to sell

other books and paintings which were also her property without informing her of what he was doing. These transactions

were the subject of a successful court action in Scotland taken by the petitioner against the respondent for the return of the

valuables.

The learned trial judge found, and had ample reasons for so finding, that this was one of a number of deceitful acts in the

course of the marriage. O’Higgins J. was also satisfied that the evidence demonstrated that the respondent provided little in

the way of emotional support to the petitioner in the course of the marriage.

The evidence of Doctor Byrne

Doctor Gerard Byrne, psychiatrist, was appointed to carry out a psychiatric examination of the petitioner and of the

respondent and to report to the court thereon.

He interviewed each of the parties for a total of four hours. His opinion was that at the time of his marriage the respondent

had a personality disorder to such an extent as to make it impossible for him to consent to and sustain marriage to the

petitioner. He had a fundamental difficulty with trust and allowing himself to be trusted and constructed a persona entirely at

variance with reality.

Doctor Byrne quoted from the International Classification of Diseases, which sets out what specifically a personality

disorder is, in the following terms:-

“It is a condition which comprises deeply ingrained and enduring behaviour patterns manifesting themselves

as inflexible responses to a broad range of personal and social situations. They represent either extreme or

significant deviations from the way that the average individual in a given culture perceives, thinks, feels and

particularly relates to others. Such behaviour patterns tend to be stable and to encompass multiple domains of

behaviour and psychological functioning. They are frequently, but not always, associated with various degrees

of subjective distresses and problems and social functioning and performance. They emerge early in the course

of the person’s development, usually present by early adulthood and generally persist throughout life.”

Doctor Byrne was of the view that the respondent’s financial difficulties, both at the time of the marriage and subsequently,

were of his own making. He believed there was a strong element of fantasy about the respondent’s personality amounting to

grandiosity. He told untruths, not merely to conceal his financial difficulties, but to achieve maximum attention. It was

Doctor Byrne’s view that the particular personality disorder exhibited by the respondent was one of narcissistic personality

disorder with a triad of self-importance, a need for admiration and the inability to empathise with others. Such persons, he

believed, had very strong negative reaction to criticism, show manipulative behaviour and an exaggerated sense of their

abilities. They possess a strong sense of entitlement and a requirement for constant attention while being indifferent to the

feelings of others.

Doctor Byrne went on to cite a number of matters which he relied upon when arriving at his opinion, including:-

(a) A letter in which the respondent said he had been head-hunted by Thistle Developments.

(b) A letter written by the respondent to a celebrated Q.C. in England.

(c) The manner in which the respondent dealt with an art bank in Glasgow.

(d) The respondent’s description of himself in his C.V.

It is not necessary to set out in detail the factual details of these matters beyond the following brief summary. In relation to

the first matter, the respondent had applied for a franchise for the sale of a fast food product from an American business

and in the course of a letter setting out his application he maintained he had been head-hunted to assume the position of a

Director in a development company in Dublin. This in fact was totally inaccurate, as the company had been founded by the

respondent himself. Secondly, the respondent had written a letter to a distinguished Q.C. in England in which he made a

reference to papers which the Q.C. in question had supposedly forwarded to the respondent. He also referred in the letter to

an invitation supposedly extended by the petitioner and the respondent to the Q.C. to visit the parties in the south of Ireland

on a particular date. The petitioner knew nothing whatsoever of this invitation or of any relationship or friendship between

the respondent and the Q.C. in question. Doctor Byrne took the view that this letter was indicative of the sense of

grandiosity and pomposity which he attributed to the respondent. In correspondence with a firm of art dealers in November,

1997, the respondent had written concerning the removal by this firm of a number of paintings from Dublin to Glasgow.

Doctor Byrne found it strange that the respondent would write to the firm in question in circumstances where he owed

money to that firm but nonetheless expected the firm to move the pictures for him, to wrap them and take all necessary

steps in relation to the shipment. In relation to the respondent’s C.V., Doctor Byrne noted that the respondent had described

himself as “one of the most high profile practitioners in Scotland” and “one of Glasgow’s best public speakers”. Doctor

Byrne took the view that these representations were again indicative of the personality disorder he had described.

There were other matters dealt with in evidence. For example, the respondent had written a letter to the person from whom

he had hoped to achieve the fast food franchise in which he made reference to a supposed illness of his wife when in fact

his wife was not ill at all.

Doctor Byrne did not, however, have access to persons other than the petitioner and the respondent for the purpose of his

psychological assessments.

Findings of the learned High Court Judge

Having conducted a careful review of the evidence, O’Higgins J. stated as follows:-

“I am not satisfied, however, that the totality of the evidence discloses that the personality traits of the

respondent were so outside the norm as to constitute a personality disorder such as would preclude him from

contracting a valid marriage. Nor am I convinced that his personality was such as to preclude him from

sustaining a relationship with the petitioner. Furthermore, it has not been shown to the satisfaction of court

that the respondent “constructed a persona entirely at variance with reality” ”.

At an earlier portion of the judgment, O’Higgins J. stated (at p.7):-

“It is difficult to avoid the conclusion that the constant financial demands of the respondent were a real factor

in the failure of the marriage and although the respondent was unsuccessful in his business endeavours during

the marriage I am satisfied that his financial dependency on the petitioner was not deliberate. The evidence

does not disclose that the respondent was incapable of earning a living or keeping a job by virtue of his

personality. Had circumstances been different he may well have been successful in business. The financial

dependency issue in this case is not in my view of assistance in assessing the respondent’s ability to contract

to a valid marriage.”

O’Higgins J. concluded that the respondent’s lack of full disclosure about his financial affairs, family and social

circumstances, were not grounds upon which one could base a claim for nullity.

It is clear that the trial judge had a very clear and full understanding of the factual situation in this case. He noted that during

the marriage the respondent had provided little emotional support to the petitioner and did not appear to have been very

good at parenting the child born prior to the break-up of the relationship. He was inconsiderate to the petitioner and

sometimes deceitful. The learned trial judge was thus quite prepared to conclude from the evidence that the respondent was

very selfish, egotistical, deceitful and dishonest and that he behaved badly. He concluded however as follows:-

“However, as I have stated, the evidence does not convince me that the personality traits which he displayed

were of such a nature or quality as to bring him outside the norm. I am not persuaded that he was suffering

from such personality disorder that would have prevented him from contracting to a valid marriage. In those

circumstances, the petition must be refused.”

Relevant Legal Principles

The relevant legal principles pertaining to a grant of nullity have been comprehensively set out in the judgment of this Court

in PF v. GO’M (otherwise GF) [2001] 3 IR 1. This was a case where the petitioner and the respondent were married and

had one child. The petitioner commenced nullity proceedings on grounds that he had not given full free and informed

consent to the marriage. It was alleged that the respondent was involved in a relationship with a third party when she

became engaged to the petitioner. The petitioner claimed that had he known of this relationship, which was ongoing, he

would not have consented to the marriage. The High Court (O’Higgins J.) while finding that the respondent had an affair

with Mr. K both before and after the marriage, refused to grant the nullity sought. The petitioner appealed on the basis that

the trial judge erred in law in holding that the circumstances of substance which rendered a party’s consent full and informed

did not include circumstances concerning the disposition or proclivity of the other party. It was held by this Court, in

dismissing the appeal, that if a party to a marriage was not fully informed about the conduct or the character of the other

party prior to the marriage, this was not of itself sufficient to render the marriage void. Secondly, while adultery was a

ground for judicial separation, it had never been a ground for nullity. Thirdly, while consent could not be considered

informed where information relating to a party’s inherent disposition and mental stability was withheld, this would not be the

case where there was a concealed misconduct or other misrepresentation. Fourthly, there was a necessity for certainty in

marriage, which was enshrined in the Constitution. Therefore the introduction of a ground of nullity which would bring

uncertainty into a wide variety of marriages was not only undesirable as a matter of public policy, but was contrary to the

clear intention of Article 41.1.3 of the Constitution.

In delivering judgment on behalf of the Court, McGuinness J conducted a comprehensive review of the relevant legal

principles pertaining to nullity. Having traced the origins of the modern law of nullity, she cited a much quoted passage from

the judgment of Kenny J. in S. v. S. [1976-77] I.L.R.M. 156 at pp. 162 to 163 which emphasised that traditionally two

principles were fundamental in suits for nullity:-

“The first was that the petitioner had to establish his or her case with a high degree of probability or, as Lord

Birkenhead expressed it in C. (otherwise H.) v. C. [1921] P. 399 at p. 400: 'must remove all reasonable

doubt'. The second was that the ground of nullity had to exist at the date of the marriage: events or acts

subsequent to the marriage were never a ground for a declaration of nullity (Napier v. Napier [1915] P.

184).”

McGuinness J. considered at length the whole question of misrepresentation or fraud arising from the misconduct of one

party prior to the marriage. This issue was fully considered in the case of Moss v. Moss (otherwise Archer ) [1897] P.263.

In that case the President, Sir F. H. Jeune had made it clear in the course of his judgment that fraud and misrepresentation

had a very small role to play as a ground for a decree of nullity. He quoted Lord Stowell in the case of Wakefield v. McKay

[1807] 1 Phillem. Ecc. 134 as stating at p.137:-

"Error about the family or fortune of the individual, though procured by disingenuous representations, does

not at all affect the validity of the marriage"; and the same judge in Ewing v. Wheatley 2 Hagg. Cons. 175 "it

is perfectly established that no disparity of fortune or mistake as to the qualities of the person will impeach the

vinculum of marriage"; and in Sullivan v. Sullivan 2 Hagg Cons. 238 "the strongest cases you could establish

of the most deliberate plot, leading to a marriage the most unseemly in all disproportions of rank, of fortune,

of habits of life, and even of age itself, would not enable this Court to release him from chains, which, though

forged by others, he had riveted on himself. If he is capable of consent, and has consented, the law does not

ask how the consent has been induced."

The principal authority relied upon by the petitioner in the present case, namely MO’M (otherwise OC) v. BO’C [1996] 1

IR 208, was also dealt with by McGuinness J. in the course of her judgment. That was a case where the High Court had

heard evidence relating to the inherent nature, character and behaviour of the respondent during the marriage. It was a case

where the respondent, unknown to the petitioner, had been attending a psychiatrist for approximately six years before the

marriage. She claimed she did not have adequate knowledge of all the relevant circumstances and that had she been aware

of those circumstances she would not have married him as she regarded the fact that the husband had attended a psychiatrist

as being indicative of mental instability and probably some form of psychiatric illness. In other words, consent to the

marriage was not, she alleged, a free, full and informed consent.

This was therefore a case where there was material before the court suggesting some condition, disposition or proclivity on

the part of the respondent, rather than merely a matter of conduct. The petitioner was granted a decree of nullity. In dealing

with this case McGuinness J. stated as follows at p.23 of her judgment:-

“The formulation of the need for an informed consent by Blayney J. in M.O'M. (otherwise O'C.) v. B.O'C.

[1996] 1 I.R. 208 as contended for by the petitioner would appear to be so wide as to cover almost any

situation where a petitioner has at the time of the marriage lacked relevant information on a matter of

substance concerning the conduct, character or circumstances of the respondent, and that this will ground a

decree of nullity. This, it appears, would apply regardless of whether or not the information had been

deliberately concealed by the respondent. The test is subjective. Presumably all that would be required would

be for the petitioner to give evidence that he or she would not have married the respondent had this

information been available before the marriage. One has only to formulate the test in this way to realise that it

could readily give rise to an undue widening of the grounds for nullity …”

McGuinness J. continued:-

“This cannot have been the intention of Blayney J. in M.O'M. (otherwise O'C.) v. B.O'C [1996] 1 I.R. 208. I

must conclude that M.O'M. (otherwise O'C.) v. B.O'C. should be distinguished from the present case on the

facts and on the particular nature of the information involved which gave rise to considerations of inherent

disposition and mental stability. I respectfully agree with O'Higgins J. that it cannot be extended to cover

concealed misconduct and other forms of misrepresentation.

The courts have always stressed the necessity for certainty in marriage, as did the learned judge in Moss v.

Moss (otherwise Archer) [1897] P. 263. This is reinforced, as was submitted by counsel for the respondent, by

Article 41.3.1 of the Constitution:-

"The State pledges itself to guard with special care the institution of marriage, on which the family

is founded, and to protect it against attack."

The introduction of a ground for nullity which, taken to its logical conclusion, could bring uncertainty into a

wide variety of marriages is not only undesirable as a matter of public policy but is contrary to the clear

intention of Article 41.3.1.”

I believe McGuinness J has correctly set out the relevant legal principles applicable in this jurisdiction . While it might be

seen as desirable by some that legislation be now enacted to provide for the grant of nullity and its consequences (a point

made by McGuinness J. in her judgment), this Court must determine the instant case by reference to those principles.

DECISION

The appeal in this case was unopposed, other than by the filing of an Answer to the Petition in October, 1999. However,

that does not of course mean that the petitioner is entitled to a grant of nullity for the asking. The petitioner must show that

the learned trial judge drew incorrect inferences from the evidence which was before him. I do not believe that he did.

He was entitled to disagree with the views expressed by the psychiatrist and did so in relation to the matters relied upon by

Doctor Byrne. In my view the learned trial judge was perfectly entitled to assess as a “minor puff” the assertion by the

respondent that he had been “head-hunted” by Thistle Developments and that he had exaggerated his experience and

credentials in his C.V. This is a far from unusual or untoward experience in human affairs. It is almost a ‘given’ that a

person will try to exaggerate his talents in such a situation. I am also firmly of the view that the trial judge was entitled to

conclude that no significant implications should be drawn from the letter written to the distinguished Q.C. in England. That

Q.C. had not given evidence nor were his comments on the correspondence (if any) available. In the same way the learned

trial judge was entitled to take the view that it is in no way unusual for a person to deal with a company to whom one owes

money, as occurred in the case of the art bank transaction. The amount owed at the time of the request was £252.88 but

there was enclosed with the request a cheque for £240 leaving a balance due of £12.88. This is hardly a matter of any

significance.

I have no difficulty in accepting the proposition that, from the petitioner’s point of view, the respondent transpired to be

something other than the man she thought she was marrying, but indeed one may regretfully observe that the same could be

said of many marriages. The petitioner’s complaints are almost entirely addressed to the conduct of the respondent, conduct

which was undoubtedly feckless, irresponsible and immature. Nearly all of the behaviour relied upon occurred subsequent to

the marriage and does not relate to the respondent’s capacity at the time of the marriage. Further, the evidence does not

support a view of the respondent as a confidence trickster cut from the same cloth as the eponymous anti-hero of Thomas

Mann’s novel ‘Confessions of Felix Krull, Confidence Man’ (Penguin, 1958). Even if it did, the evidence comes nowhere

close to establishing that the respondent lacked capacity to contract to a valid marriage. I am particularly mindful in this

context of the passages already cited from the judgment of McGuinness J. in PF v. GO’M (otherwise GF) [2001] 3 IR 1

where the learned judge draws a clear distinction between conduct on the one hand and incapacity and disability on the

other.

The Constitution imposes a clear obligation on the courts to uphold the marriage contract and it would require far stronger

evidence than has been adduced in this case to satisfy me that the respondent lacked the requisite capacity to enter a valid

contract of marriage.

Finally, I feel compelled to comment, with a degree of regret, that although a Book of Authorities was lodged on behalf of

the petitioner, that Book of Authorities did not include the decision of this Court delivered in PF v. GO’M (otherwise GF)

[2001] 3 IR 1. This was a most surprising omission having regard to the fact that this decision was delivered as far back as

2001 and was indeed referred to in the judgment delivered by the learned High Court judge. No satisfactory explanation for

its omission was forthcoming.

I would dismiss the appeal.