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1. The Petitioner in this suit was born on 11th August, 1952. The Respondent was born on 27th March, 1950. They were married according to the rites of the Roman Catholic Church on 19th April, 1970. The Petitioner was over 17 years of age and the Respondent was just over 20. Before marriage, the Petitioner became pregnant by the Respondent. She did not realise what had happened (i.e. getting sick every morning and her periods had stopped). She had got no sexual education and her parents gave her no practical support or advice. Her husband was her first boyfriend. She was going out for about five or six weeks with him when she became pregnant. His boyfriend's sister took her to Holles Street Hospital where she was diagnosed as being pregnant. Her sister suggested that she could (a) have an abortion; (b) have the child in England and put it up for adoption; or (c) marry the Respondent.

2. She was afraid to tell her parents. She was aware of the terrible shame brought on her family. When she eventually told her parents, they did not want her married in a local church so they went to a church run by a religious order. According to the psychiatrist she knew that the only option available to her if she wanted to keep the baby was to marry. His parents allowed her to come into their house for about two weeks after the baby was born. Basically, she had to deal with this very frightening and difficult situation by herself. The baby was born and is now 26 years of age. He is well and independent. Both parties were extremely distant and ill-informed when entering the marriage. He was a heavy drinker. The marriage was "terrible from the beginning". The Respondent was always out with his friends drinking. He was unemployed. She got a part-time job and saved some money. She left him after two years. They had sex after marriage on only a couple of occasions. The sex was always problematic. He continued having affairs with other women. He apparently had at least six children from these affairs. She did not understand fully that marriage was supposed to be for life. She saw it simply as a solution to a problem at the time. She felt that she had no way out. She felt that she was forced into the marriage. Her parents made it clear that she had to get married. They refused generally to communicate with her or to help her. She was a pregnant child who was ignorant, naive and alone. The question is whether she was able to enter into and sustain a normal marital relationship because of her youth, lack of sexual education, immaturity and social pressures and because of an unwanted pregnancy. Her husband was also immature, had an alcohol problem and probably did not understand the nature and permanency of the marriage contract. His parents suggestions may have forced him into marriage.

3. Both parties were members of the Roman Catholic Church. The Church granted them an annulment in 1977. She had got a job in a Christian Brother College where her uncle was one of the Community. While there, she became very friendly with one of the brothers who assisted her in her application for a papal annulment. He subsequently left the Order and married her after she had got a papal annulment. They had two daughters. He works in Belgium. However, sadly, this relationship has also broken up. Counsel for the Petitioner raises various queries.

4. In some cases, there is an overlap between lack of consent by reasons of lack of normal comprehension of the marriage contract and lack of consent due to duress. In many cases the facts portray young, impractical and inexperienced people in a crises situation, (usually an unplanned pregnancy), which inhibits clear thinking. They tend to see marriage as a solution to an immediate problem (i.e. the pregnancy) and not as a serious life long commitment.

5. Thus, a full, free and informed consent to marry is essential for a valid marriage [cf. in N. (otherwise K.) -v- K. , [1985] I.R. 733, and particularly Finlay C.J. at p.742 and McCarthy J. at p.754]. It is the Petitioner's contention that at the time of the marriage, by reason of their age (17 and 20 respectively) in very difficult circumstances including an unplanned pregnancy, parental disapproval, naiveté and fear they did not see any viable alternative to marrying.

6. She relies on the case of N. (otherwise K.) -v- K. , [1985] I.R. 733. The facts of that case are summarised by Carroll J. in her judgment at pages 735-6, which summary was adopted by Finlay C.J. on appeal to the Supreme Court.

7. The respondent had said to the petitioner when she asked, "what will we do?", "I suppose we will get married, it is all we can do".

8. The marriage faltered almost immediately. Four years later the petitioner initiated nullity proceedings. In the High Court, Carroll J. found at page 738:-

9. The learned trial Judge decided that there was no evidence of coercion or persuasion sufficient to destroy the reality of her consent. She held at page 738, that this was not a case "where she definitely did not want to marry and was coerced, forced, or even persuaded to marry. She had no clear idea what to do and her father made up her mind for her. I do not think that this amounts to duress in law". In the Supreme Court the appeal was upheld for (1) and the marriage was declared null and void by reason of lack of consent due to duress. Finlay C.J. says at p.742:-

10. Griffin J. stated at p.751:-

11. On the facts, he agreed at page 752-3 with the Chief Justice that "the consent of the petitioner was not the full and free consent required for marriage but was of a parent only and that no marriage therefore took place". In the same case, McCarthy J. at page 755 said that the key question in any contract was, "was there a voluntary consent?" In a later case, B. (otherwise O'R.) -v- O'R ., [1991] 1 I.R. 289 follows the thrust of the decision in N. (otherwise K.) -v- K . It also concerned a pregnant very young girl who was quiet, unassuming and immature and uninformed. The marriage was arranged by a nun at an orphanage where she spent some time and was regarded by her as a mother figure. The petition for nullity was refused by Carroll J. in the High Court, she regarded the pressure to which she was subjected to was circumstantial. The decision was unanimously reversed on appeal. The Supreme Court held that at the time of the marriage, the petitioner was not in any condition to exercise an independent decision, being shocked by her pregnancy and being unaware of any alternative. The issue was her ability to consent, not the sort of pressure or duress she was subjected to.

12. She and the respondent had five children and she issued proceedings for a nullity decree nearly 11 years after the marriage. While there was no doubt that the delay was substantial, the Court accepted that the evidence was clear in establishing no true consent had been given.

13. In the present case, it is suggested that the facts are very similar to N. (otherwise) K. -v- K . The parties were extremely young and naive. Her parents were scandalised and they encouraged the marriage. They believed that if she wanted to keep the baby she had to marry. Her parents reinforced the idea that she had brought shame on the family and refused to help her. The Petitioner was isolated and had no one to turn to for advice. She did not believe she had any choice. After the marriage their relationship achieved no substance. They lived virtually apart, the respondent was liable to be violent to her and there was no communication. She managed to get a part-time job and left the Respondent when she had enough money saved after about two years [in contrast to the N. (otherwise K.) -v- K . case, she did not seem able to return to her family home]. She also brought up the child without any input from his father. The Petitioner applied for a church annulment in 1977, 8 years after the date of the wedding. Her application for a civil annulment this time nearly 30 years later is due to a much later realisation that such an annulment does not change her status in civil law and her wish to have her status and the status of her subsequent marriage and family clarified.

14. The aforesaid cases establish a trend of nullity decrees based on lack of consent using a subjective test. In support of that approach, they also cited W. (otherwise C.) -v- C. , [1989] I.R. 696, M.O'M. (otherwise O'C.) -v- B.O'C. , [1996] 1 IR 208 (although this decision has been criticised in an article by Paul Ward); G.M. (otherwise G.) -v- G.T. , unrep., High Court, Lavan J., 22nd November, 1991 (unrep. 1992 Vol. 3 0704); J.O'C. -v- M.O'C. , [1994] 2 Fam, L.J. 55; A.C. (otherwise J.) -v- P.J ., [1995] 2 I.R. 253 (a marriage of 25 years involving 5 children); O'R. -v- B. , [1995] 2 I.L.R.M. 57, where I granted a decree of nullity on the grounds of the petitioner not giving a full, free and informed consent to his marriage due to his immaturity and psychological disability in respect of his personality. However, she also cited cases where a declaration of nullity had been refused - B.C. -v- L.O'F. (otherwise L.C.) , unrep., High Court, Morris J., 25th November, 1994 (unrep. 1995 Vol. I 0306) and D.C. -v- N.M. (otherwise N.C.) , [1997] 2 IR 218.

15. The next question is whether the Petitioner and Respondent because of their respective states of minds, mental conditions and personalities were unable to enter into and sustain a normal, functional, lifelong marital relationship with one another. It is the Petitioner's contention that at the time of the marriage she and the Respondent were by reason of their youth and immaturity constitutionally unable to enter into and sustain a normal marital relationship. The Petitioner was unable to cope with the relationship and extracted herself from her situation as soon as she could save enough money to do so. The evidence shows the Respondent as a young man who had no commitment or sense of responsibility towards his wife and child who was saved from facing the problems of his marriage through absence, alcohol, other women and a threat of violence. She cited, U.F. (otherwise U.C.) -v- J.C ., [1991] 2 I.R. 330. In his judgment, Finlay C.J. at page 356, confirmed that such incapacity would be due not only to:-

16. She also referred to D.C. (otherwise D.W.) -v- D.W. , [1987] I.L.R.M. 58; P.C. -v- V.C. , [1990] 2 I.R. 91; O.R. -v- B. , [1995] 2 I.L.R.M. 57; M.O'M. (otherwise O'C.) -v- B.O'C. , [1996] 1 IR 208."

17. In this case, the Respondent was unrepresented but attended at the trial but took no active part in it including not examining any witnesses. The Third Party was represented by Senior and Junior Counsel and they took a very active part in the proceedings and Junior Counsel has submitted a detailed legal submission.

18. There is undoubtedly a heavy burden of proof on a petitioner to establish that a marriage is null and void. It is for the trial judge to determine whether the parties' marriage is a nullity. As marriage is protected by the Constitution, it is important that the Courts must exercise particular caution and scepticism in scrutinising the evidence proffered. The Third Party strongly makes the case that there are no grounds of nullity. If the Court were to so hold, then the Third Party would appear to be guilty of attempted bigamy. The first marriage would clearly be in existence and he would not be and was never married to the Petitioner.

19. It is argued that the Petitioner and the Respondent themselves discussed the question of getting married without any interference from either set of parents. She had three options:-

20. She felt that she wanted to keep the child and that the only option available to her was to get married. The option of being a single parent was not really available at the relevant time. It only came into vogue in comparatively recent years. The Third Party argues that, "it is quite clear that the parents, whilst they were unsupportive and uncaring, did not seek to influence the Petitioner in any way and took no hand, act or part in the organisation of the marriage or the wedding". An unwanted pregnancy in itself cannot justify nullity. It is argued the Petitioner has failed to prove that it was not a decision of her own free choice. She has told the Court that there was nothing else she could do as she felt rejected by her parents and did not want to reject the baby she was carrying. The Third Party submits this does not go far enough to prove that in some way the Petitioner was under duress, intimidation or undue influence or any other pressure such as to render the decision she made anything other than a full, free decision. The decision was made after a careful consideration of her situation and what she wished to achieve.

21. Psychiatrists can, of course, assist the Court in relation to any mental illness. It is argued that Dr. O'Connor has given an opinion that the parties were immature. However, it is suggested that her evidence and that of her sister would suggest that it was not of such nature as to amount to abnormal immaturity or gross immaturity. It is not of a sufficient degree as to warrant a decree of nullity. At the same time, she was very young. She was very ignorant about "the facts of life". She was faced with a difficult choice and had no support to help her make her choice from friends or parents. In fact, the parents not merely were unhelpful but did not show her the love and affection she probably needed at a time of great emotional distress and indeed seemed to have rejected her. It is possible that she hoped by marrying she might win back the affection of her parents. While each of these items, in itself, may well be insufficient to justify an annulment. Having heard all the evidence, this Court is firmly of the opinion that at the crucial time, the Petitioner was not capable of making a full and totally free and informed decision.

22. Despite some judgments suggesting the contrary, this Court is of the view that one must look at the condition of the parties at the time they entered into the contract and not what may have emerged later. In these circumstances, the Court would normally grant a decree of nullity in this case. However, a number of other matters arose in the course of the trial.

23. Firstly, it is submitted by the third party that the Petitioner is not entitled to the decree of nullity sought on the grounds that she had unreasonably delayed in seeking to obtain an annulment of her marriage to the Respondent and also on the grounds that she approbated the said marriage despite having sought and obtained the Church nullity. It is suggested that she approbated her marriage by seeking maintenance and also by seeking Social Welfare payments on the basis of being a deserted spouse and single parent, which claims continued after the annulment of her marriage by the Church Marriage Tribunal and her purported remarriage to the Third Party. Both these claims are at variance with her claim that no valid marriage existed. These claims continued for a considerable time after the breakdown of her marriage and after her purported remarriage. While she did seek legal advice regarding maintenance and about the Respondent having any claim to her property, the Court takes the view that in the particular circumstances of this case that the Court should not refuse relief on the grounds of delay. Applying for her Social Welfare for the support of herself and her child is not, in the circumstances of this case, any form of approbation.

24. It has been argued on behalf of the Petitioner that she did not know or understand the law. However that, in itself, is not an explanation or excuse for failure to assert one's rights. The old maxim is "ignorantia juris, quod quisque scire tenator neminem excusat" (ignorance of the law, which everyone is presumed to know, excuses no one).

25. The Court pointed out that it appeared that the second marriage was possibly bigamous and once the Court was aware of that, the Court must consider whether or not to impound the papers and send them to the D.P.P. However, the Court is not anxious to take this step if it could be avoided. The Court referred to the following cases, namely, Usher -v- Usher , [1912] 2 I.R. 445, 46 (1912) I.L.T. & S.J. 109; People -v- Hunt (unreported) but noted at 80 (1946) I.L.T. & S.J. 19. In the Circuit Court the decision of the former President of the Circuit Court, Mr. Justice O'Briain; People (at the suit of the A.G.) -v- Christina Ballins (otherwise Kenny) , [1964] IR. Jur. Rep 14.

26. In that case, the defendant married in a Registry Office in England. Her husband was involved in criminal activity and was jailed. She returned with her child to Limerick. She met an old boyfriend who took her into his house and looked after herself and the child. She endeavoured to get a divorce from her husband but he refused unless he obtained custody of their child. She would not agree to that. A well intentioned Catholic Curate prevailed upon her that she was not married in the eyes of the Church. He met them at 6 in the morning. He purported to marry them. The priest wanted to regularise the position of the man she was now living with and herself. The marriage was witnessed by the Parish Clerk and the Priest's housekeeper. When her husband was released from jail, he came to Limerick looking for his wife and his conjugal rights. He broke into the room where she was sleeping with her partner. A row developed between the two men. The Gardaí were called. The Sergeant who arrived decided that the cause of the trouble was the woman so he arrested her and charged her with bigamy. The two men then went drinking. She pleaded guilty in the District Court. The District Justice felt he could only impose one year and that that was not sufficient having regard of the nature of the crime. He sent her forward on her plea of guilty to the Circuit Court. She came before the much respected President of that Court sitting at Limerick. I was a young barrister listening to the case. My recollection is that William Binchy was for the defendant, although the report has him appearing for the Attorney General. I vividly recall him demanding to know why the Attorney General did not prosecute the Priest. She was an uneducated poor woman who was doing the bidding of her Priest. The Priest was an accessory before, at, and after "the fact". The trial Judge said that the crime would normally require at least 18 months imprisonment. This was possibly to placate the learned District Judge who had declined jurisdiction as "he could only give 12 months". The learned President refers to an excellent article by Gerard Lee, Barrister at Law entitled "Canon and Civil Marriage Laws in Ireland" which appears in the 1946 Irish Ecclesiastical Record (No. 67) at p.154. The article shows clearly that there is a serious conflict between the Civil Law and the Roman Catholic Canon law. The President also refers to the observations of Haugh J. in The People -v- Hunt , noted in 80 (1946) I.L.T. & S.J. 19. The President says:-

27. Ó Briain J. quotes from the note of the Hunt judgment and Mr. Lee's article:-

28. The President then continues:-

29. This Court raised the issue as to whether Section 57 of the Offences Against the Person Act, 1861 is in full force and effect. It is accepted by all Counsel appearing in the case that it is. The crime of bigamy shall be punished "at the discretion of the Court to be kept in penal servitude for any term not exceeding seven years and not less than three years or for any term of imprisonment not exceeding two years with or without hard labour". The Court is aware that there are very few, if any, prosecutions for bigamy in this day and age. However, the Court must apply the law. In this case the petitioner got an annulment from the Roman Catholic Church. To get it she was aided and abetted by a man who is now the Third Party and who married her after her annulment. Admittedly he is now saying the first marriage was valid. She knew or ought to have known that she needed a State annulment when she entered into this bigamist relationship. While I have no evidence, it is suggested by the Respondent here that he has also entered into an alleged marriage with another party. If this be so it he would also prima facie appear to have committed bigamy.

30. The Court also raised the point in the old edition of Winfield, P.H., "Textbook on the Law of Tort", (4th Ed.) Sweet & Maxwell, 1948, England, 163, that the Court would not support a civil claim where there was evidence of a felony unless the matter had at least been reported to the Gardaí and possibly prosecuted.

31. The Court raised both these problems and asked for the assistance of Counsel and received very useful submissions.

32. The rule was based on public policy. It was known as the rule in Smith -v- Selwyn , [1914] 3 KB 98, [1914-5] All E.R. Rep. 229. No civil remedy could be pursued by the victim of a crime which amounted to felony when the criminal had not been prosecuted. In Carlisle -v- Orr , [1917] 2 I.R. 534, O'Connor M.R. explained the rule, at page 546:-

33. In the same case Gibson J. at p. 538 states:-

34. However, this is now probably of academic interest only, in view of the provisions of Section 3 of the Criminal Law Act, 1997, which abolished the distinction between felonies and misdemeanours. Bigamy is thereafter a criminal offence with no significance attaches to it being cast as a felony.

35. The difficulty in this case is that the Petitioner entered the second contract of marriage with the Third Party after she had got an annulment from her Roman Catholic Church in 1977 but prior to the passing of the Criminal Law Act, 1997. The Court has heard no argument to suggest that this section is retrospective. It clearly is not retrospective.

36. The explanatory memorandum of the Criminal Law Bill, 1996 states:-

37. The Third Party here says that A.M.N. -v- J.P.C. , [1988] I.L.R.M. 170 is a case similar to this and Barron J. did not enforce this rule. The point may not have been raised before him. I am told that in a recent action, Mc.G. -v- W. , High Court, unrep., 14th January, 1999, my colleague, McGuinness J., gave an annulment and made a recommendation to the D.P.P. that no further steps should be taken in respect of prosecution. It is argued that the rules as set out in Underhill on Torts in the 1932 Edition only applies to an action for damages which action is a felony. The law is set out at page 25 of the 1932 Edition of Underhill. This Court is not terribly happy about this aspect of the law in relation to the facts of this particular case.

38. The Court is quite clear that the law of bigamy may well require amendment. The distinction between misdemeanour and felony is now gone. For the reasons already given the Court is satisfied that this is an appropriate case to grant nullity. Since there was no direct financial damage the Court, with doubt, holds it is not necessary to report the matter to the Gardaí and of course it will no longer be necessary in any proceedings commenced after the Criminal Law Act of 1997. However, since the marriage is a nullity the question of bigamy is probably an interesting academic discussion. This Court has regarded the original purported marriage was void ab initio and therefore it cannot be the basis for a bigamy prosecution in itself.

39. The historical background of our law of nullity is based on the Canon Law and as Kenny J. in his judgment which was unanimously affirmed by the Court of Appeal in Usher -v- Usher [1912] 2 I.R. 445 at 459 in the report says:-

40. Since the law was based on the Canon Law, as administered in spiritual court, it has always laid stress on the sacred and indissoluble nature of the marriage bond. Thus the caution and circumspection repeatedly enjoined on Courts in this area. In the words of Lord Sullivan, L.J. in Cuno -v- Cuno , (1873) 2 H.L., S.C. 300:-

41. Indeed some of the cases of bigamy form the assumption of the law of sacrilege.

42. In Scotland, if a man and a woman held themselves out as married and were resident for more than 21 days, they would in fact be married. This is part of the plot of the "little minister", a play by J.M. Barrie. See S.W. and T.R. , 36 (reprinted E.R. 164). The Court said that in order to establish bigamy you must prove such a marriage, but for the former marriage, would have been in itself valid. The following cases also support the view that the invalidity of the second marriage will negative the crime of bigamy - Povey's case , 1 Dears, C.R. Cas 32, (reprinted E.R. 164), Graham's case , 2 Lewin 97, (reprinted E.R. 168), R. -v- Fanning , 17 I.R., C.L. (rep. 289). No expert on the law of Scotland had been called so the evidence was insufficient to prove a valid marriage, therefore Povey had been improperly convicted. In R. -v- Fanning , the second marriage was in a Roman Catholic Church. The accused had been born and raised as a Protestant. The Jury convicted him of bigamy. Under statute law, such a marriage was declared to be null and void. The conviction was quashed.

43. I am quite satisfied that this marriage was void ab initio because of the inability of the Petitioner to enter into a meaningful lifelong commitment. One must have regard to all the facts in so far as they can be ascertained that existed at the time of the first marriage. There is no doubt whatsoever that there was never a marriage.

44. Also, the question of reporting to the Gardaí does not arise because there was no question of material loss. Therefore, it probably doesn't come within the rule of Smith -v- Selwin .

45. In view of the confusion which exists in relation to the law of bigamy, I do not propose sending this to the D.P.P. Of course he is a totally independent officer so I do not think it would be appropriate for this Court to direct him in what he should or should not do.