The Ever-Changing Grounds for Annulment as Antecedent to Irish Legal Change

THE EVER-CHANGING GROUNDS FOR ANNULMENT AS ANTECEDENT TO IRISH LEGAL CHANGE

Andreena Corrigan

Irish law and society continue to hold dear an attachment to the institution of marriage as the primary basis for relational commitment evidenced by the ‘inalienable and imprescriptible’1 protections afforded to the marital family in our courts. Yet, though marriage is attributed perpetual importance the legal concept has transformed over the past 100 years. 2 Amidst the ground-breaking developments of recent past one scarcely documented relief has refused to lull in its development: annulment.3

Curiously, though the popularity of this relief has waned since the mid-century expansion of divorce a mesa et thoro and later introduction of divorce, in affirming the non-existence of what was once a valid marriage, annulment is a remarkably potent device when observed in any constitutional context, disregarding constitutional marriage protections. With just one qualifying ground for divorce and six bases for judicial separation, the recognised circumstances for nullity decrees have varied throughout the decades reaching a total of sixteen identifiable grounds today.4 Spanning both void and voidable decrees, decisions in this area have historically illuminated the court’s view on issues far exceeding the proceedings before it. It is therefore possible to trace the court’s evolving views on a variety of social issues through the lens of the nullity decree as it continues to grant jurisdiction for judicial exploration of today’s contentious issues.

For conciseness, this essay shall detail four of the recognised grounds for annulment: two rendering marriage void and two rendering it voidable. This essay will also seek to demonstrate how relevant judgments have contributed to landmark legal developments.

1 Article 40.1.1°. 2 Margret Fine-Davis, ‘Attitudes to Family Formation in Ireland: Findings from the Nationwide Study’ (Trinity College Dublin, 2011) [60]. 3 Family Law (Divorce) Act 1996; The Marriage Act 2015. 4 Law Reform Commission, Report on Nullity of Marriage (LRC 9—1984) contains a concise reiteration of nullity grounds up to that point, however, disappointingly little has been written on the subject since.

Capacity to Marry and the Law’s Relenting Homophobia

Regarding capacity to marry, the sex of parties to a marriage was of course a ground for nullity in the not-too-distant past. The classic definition concerning ‘the voluntary union for life of one man and one woman’5 is undoubtedly the most pertinent point of discussion in this respect, subsequent Irish decisions contextualising judicial views on transgenderism and same-sex marriage. While relevant legislative enactments and judicial statements emphasise the union of man and woman6 such is never defined, resulting in the bizarre situation wherein successful sex claims of transgender people subsequently failed for the purpose of marriage.7

Though Irish recognition of transgenders’ right to marry is inextricably tied to English8 and European courts9 discussion inevitably culminates in Foy v Registrar v Births Marriages and Deaths. 10 This seminal case concerned Dr Lydia Foy, a transgender woman denied a new birth certificate by the Registrar of Births, Marriages & Deaths. Initially, Foy was decided in favour of the respondent, the High Court being unaware that the ECtHR would, but two days later, rule the UK in breach of human rights under similar circumstances.11 In Foy’s de novo appeal relying on both the ECHR Act 2003 and recent ECtHR judgments, the High Court was forced to recognise a violation of Dr Foy’s Article 8 rights.12 Though exceptions had already been made to the sanctity of the birth certificate and the Irish Court was inarguably goaded into its holding by EU intervention, this decision veering towards ensuring ‘a fair balance between the interests of society as a whole and that of the individual’ stands as a significant legal achievement.13

5 Hyde v Hyde and Woodmansee (1866) LR 1 P&D [130] (Lord Penzance). 6 Re the Marriage of C and D (falsely called C) [1979] 35 FLR 340 [345] (Bell J.); Re the Marriage of S [1980] 42 FLR 94 [102] (Watson SJ.); Baker v Nelson (1971) 291 Minn 310; Jones v Hallahan (1973) 501 SW 2d 588; Singer v Hara (1974) 522 P 2d 1187. 7 Commonwealth of Australia Constitution, s.51(xxi); Margaret Otlowski, ‘The Legal Status of a Sexually Reassigned Transsexual: R v Harris and McGuiness and Beyond’ (1990) 64 The Australian Law Journal [67]. 8 Corbett v Corbett [1970] 2 All ER 33; SY v SY (orse W) [1962] 3 All ER 55; ST (formerly J) v J [1998] 1 All ER 431. 9 Rees v UK App No 9532/81 (ECHR 17 Oct 1986); Cossey v UK (1991) App No 10843/8413 (ECHR 27 Sep 1990). 10 Foy v The Registrar of Births Marriages and Deaths [2012] 2 IR 1. 11 Goodwin v United Kingdom, App No 28957/95 (ECHR 11 July 2002). 12 Convention for the Protection of Human Rights and Fundamental Freedoms, Art 8. 13 Foy v The Registrar of Births Marriages and Deaths (10) [90]. 21

Though in this instance the resulting Gender Recognition Act 2015 could be identified as a rational but isolated outcome, it could also be viewed as anticipating the Marriage Act 2015 which effectively resolved many problems in this area.

Duress Inducing Consent to Marriage and the Law’s Subjectivity

In assessing duress inducing consent to marry, an entirely subjective approach was adopted long before a similar trend couldbe observed in other areas of the law. Despite Griffith’s initial willingness to assess individual case facts, duress being a ‘question of degree’14 necessitated an objective approach.15 This objective approach swiftly encompassed an assessment of duress arising from fear, threats, intimidation, and undue influence on life, liberty, or limb.

Perhaps attributable to the disproportionate retention of subjectivity in UK criminal law, changing judicial attitudes in Ireland initiated diversion, allowing a finding of duress only after the consideration of a number of subjective factors.16 Despite initial objections, particularly in the judgments of Barron J17 decisions have since embraced the more accommodating approach.18 Conclusively, with the High Court continuing to apply the old objective test, the appeal cases of N v K19 and B v OR20 allowed the Supreme Court to resolve residual doubts by accepting MK v FMcC21 and reinforcing subjectivity.

Post N v K,

22 growing acceptance of subjectivity continues,23 with even its most vehement critic relenting.24 However, it is important to note that applicants have been denied decrees on an increasing number of occasions25 disproving the perceived lessdemanding nature of subjectivity. There is no denying however, that relative subjectivity is capable of delivering justice to both petitioner and respondent alike and

14 Griffith v Griffith [1944] IR 35 [42] (Haugh J). 15 Kelly v Kelly (HC, 16 December 1971) 16 B v D (HC 20 June 1973); MK v FMcC [1982] ILRM 277. 17 ACL v RL (HC 8 October 1982, Barron J); JR v PMcG (HC 24 February 1984 Barron J.); EP v MC (HC 13 March 1984, Barron J). 18 CO’K v WP [1985] IR 279. 19 N v K [1986] ILRM 75. 20 B v OR [1991] 1 IR 293. 21MK v FMcC (n 16). 22 N v K (n 19) . 23 AM v TM (HC 11 January1993, O’Hanlon J.); PW v AOC [1993] 1 IR 324. 24 W v C [1989] IR 696; WC v PJ (HC 23 February 1995, Barron J). 25 KW v MW (HC 19 July 1994, Lynch J); BC v LO’F (HC 25 November 1995 Morris J). 22

has since been adopted in many areas of Irish law.26

Mental Illness’ Debilitating Effect on Marriage and the Law’s Growing Recognition

Though the ‘inability to enter into and sustain a normal marital relationship’ ground has been judicially moulded on the well-established impotence petition, it is more fitting to first consider the court’s conception of mental illness’s debilitating role in marital relationships due to its far-reaching effects. The creation of this ground exemplifies a changing legal landscape, with Costello J. alluding to ‘the obvious fact that there is more to marriage than its physical consummation’.27 It was on a case-bycase basis that psychiatric illnesses were assessed as inhibiting a normal marital relationship.28

The most significant test of this new ground, however, was in UF(C) v JC.

29 Though concerning the respondent’s homosexuality, Keane J. made clear that the analogy between impotence and incapacity to enter into and sustain a proper marital relationship ‘would appear to be valid not only in cases [of] mental illness…but also in cases where it arose from…an individual’s nature or personality…’. In this way, the Supreme Court chose to categorically endorse both D v C30 and RSJ v JSJ’s31 latency ‘at the date of the marriage’32 criterion.

Creation of this mental illness ground for annulment petitions can be deemed to have been of greater legal importance considering the publication of the Law Society’s Mental Health: The Case for Reform33 at the end of the same decade and the ensuing Mental Health Act 2001. Though largely unrelated to matrimonial law and unsuggestive of any alteration to nullity proceedings, the proximity of these events is

26 Peter Charleton, Paul McDermott, Ciara Herlihy, and Stephen Byrne, Charleton & McDermott’s Criminal Law and Evidence (Bloomsbury, 2nd edn 2018) [16.17]. 27 D v C [1984] 4 ILRM 175 (Costello J). 28 GM v TG (HC 22 November 1991 Lavan J); W(C) v C [1989] IR 696; S v K (High Court 3 April 1992, Denham J); PK v MB (MK) (HC 27 November 1992 Costello J.); SC v PD(C) (High Court 14 March 1992 McCracken). 29 UF(C) v JC [1991] 2 IR 330. 30D v C (n 27). 31 RSJ v JSJ [1982] ILRM 263. 32 ibid [265]. 33 Law Society’s Law Reform Committee, Mental Health: The case for reform (Dublin, July 1999).

compelling.

Impotence and the Law’s Constant Balancing of Rights

The final and perhaps most current instance of nullity law engendering wider legal consideration is claims of impotence. Even early judicial consideration recognised instances of ‘incapax copulandi [as] apart from the question [of] incapax procreandi’, 34 thereby establishing fertility status as irrelevant.35 With an incredibly wide definition given to coitus in marriage with factors such as contraception,36 coitus interruptus, 37 sterility,38 and adultery39 extraneous, it is understandable that the court would wish to apply this definition strictly. In one respect, this strictness could be viewed in terms of limitations identified by the courts such as incurability of impotence40 and non-reliance on one’s own impotence.41 It is submitted, however, that it is more fitting to view strictness in this area in terms of burden of proof and judicial powers under Order 79, Rule 32 of the Rules of the Superior Courts.42

Interestingly, the burden of proof43 is fixed at the criminal standard of ‘beyond all reasonable doubt’44 as opposed to the civil law standard. With marriage understood as a private matter it is significant that the courts chose to view the constitutional backdrop of matrimonial issues and ancillary public policy considerations as requiring this higher standard. Conflictingly, in allowing for compulsory medical examinations for both parties,45 Order 70, Rule 32 seemingly disregards several of the parties’

34 G v G [1924] AC 329 [2] (Lord Dunedin); McM v McM & McK v McK [1936] IR 177 [352] (Hanna J). 35 MM(C) v PM [1986] ILRM 515 reiterates that ‘emission of seed is not necessary’ to constitute coitus. 36 Clarke(Talbot) v Clarke [1943] 2 All ER 540; Baxter v Baxter [1948] AC 274; REL v EL [1949] 211. 37 White v White [1948] 2 All ER 151; Cackett (Trice) v Cackett [1950] 1 All ER 677. 38 R v R(F) [1951] 1 All ER 1194; MM (C) v PM [1986] ILRM 515. 39 S v S (Unreported, Supreme Court 01/07/1976); LC v BC [1986] ILRM 618; AO’H(F) v F [1986] ILRM 486. 40 Dickenson v Dickenson [1913] 198; W v H (1861) 2 Sw&tr 240. 41 McM v McM & McK v McK (n 34) [219-220] (Hanna J). 42 F v P(F) (1869) LT 192; B(H) v B [1901] 39; W v S(W) [1905] 231; S(B) v S [1943] NI 87. 43 NF v MT(F) [1982] 2 ILRM 545; (n 39) LC v BC. 44 C(H) v C [1921] P. 399 applied in S v S (SC 1 July 1976) (Kenny J). 45 F v P(F) (1869) LT 192; B(H) v B [1901] 39; W v S(W) [1905] 231; S(B) v S [1943] NI 87. 24

unenumerated constitutional rights.46

With matrimonial law never straying far from wider legal consensus, it is worthwhile to consider if similar mechanisms might be utilised in other areas of Irish law. This is particularly true regarding vaccine passports and other pandemic-related issues which induce a perpetual balancing act between personal rights of the individual and interpersonal rights of the community.

From the liberalisation of judicial attitudes towards sexuality to growing support for subjectivity in the modern law and from developments in the area of mental illness to questions of constitutional conflict in privacy issues, the overarching influence of matrimonial law has impacted far more legal and social issues than it is often-accredited. With public opinion largely echoing the changing attitudes of the courts in these areas, it may be possible to trace the social development of Ireland through the decades by dissecting these judgments, particularly in light of insufficient case law on some more controversial issues.

Conclusively, though the development of annulment has slowed in recent years, matrimonial law undisputedly permits judicial remuneration on issues far exceeding the gamut of any individual case. Indeed, one cannot help but recall Shatter’s regarding ‘[n]ullity law…[as] a juridical monument to the powerful impact of a dynamic judicial creativity’47 over the past 100 years.

46 Ryan v Attorney General [1965] IR 294 (right to bodily integrity); McGee v Attorney General [1974] IR 284 (right to marital privacy); Norris v Attorney General [1984] IR 36 (right to individual privacy). 47 Alan Shatter, Family Law (4 edn, Butterworths 1997) [181]. 25