The Gazette 1976

GAZETTE

J U NE/J U LY 1976

PROPOSED CHANGES IN NULLITY LAW The Government's draft proposals for reform of the law on annulment of marriage in Ireland, published in a discussion paper on 28 August would give much greater discretion to the Courts to grant decrees of nullity on the grounds of personality defect, mental disorder, duress or lack of true consent of either partner. Introducing the discussion paper at a briefing, the Attorney-General, Mr. Declan Costello, said that an- other major change being recommended was that the child of an annulled marriage should be regarded as legitimate, and that the Courts should be given broad powers to direct financial settlements and arrangements for the well-being of the children. Mr. Costello said that the 57-page document, entitled "The Taw of Nullity in Ireland," did not represent the Government's final proposals on the subject. Comment on it was now being invited and would be welcomed. After taking into account the views and observations of the public and interested bodies, the Government would formulate the legislation which it would ask the Oireachtas to enact. Discussion paper The Discussion Paper comprises a memorandum on the law of nullity which was prepared in the Office of the Attorney-General after "inter-Departmental dis- cussions," and a draft Bill. The draft Bill had been prepared to facilitate dis- cussion on the proposals suggested. Mr. Costello said that the examination of the law of nullity carried out in his Office "showed clearly that a need existed for a new, codifying and reforming statute." Very little development in the law had occurred in this country in the last 100 years—due, to a consider- able extent, to the fact that very few nullity petitions had been filed. In fact, between 1964 and 1974, only 20 nullity suits were instituted (only eight were success- ful). Mr. Costello said that research had been carried out into the developments in the jurisprudence of the Ecclesiastical Courts in this country, and consideration had been given to changes which had occurred in the Civil Law of nullity in England and elsewhere. Assist- ance had also been obtained from medical experts in the field of psychiatry. The object of these proposals is to achieve a law which will be a fair and just one, and which will assist in easing the very real hardships which exist due to the present inadequacies in the law. The discussion paper begins by setting out briefly the present state of the law of nullity. It points out that the Constitution prohibits the enactment of a law providing for the grant of a dissolution of marriage, but that there is no Constitutional prohibition on the power of the Courts to grant a decree of nullity. Such a decree is not a dissolution of an existing marriage, the subject matter of the proceedings, did not exist, the document says. The discussion paper points out that prior to 1871 the Civil Courts in Ireland had no jurisdiction in matrimonial matters, and up to that time jurisdiction in suits for nullity of marriage had been exercised by Ecclesiastical Courts. By the Matrimonial Causes and Marriage Law (Ire- land) Amendment Act 1870 a Court for Matrimonial Causes and Matters was established, and the former matrimonial jurisdiction of the Ecclesiastical Courts transferred to the new court.

Reforming measure "There is a real and pressing need for reform. This need arises from a number of causes. Firstly, many aspects of the law relating to nullity matters are un- certain and clarification of this important branch of the law is obviously desirable. Secondly the law in relation to nullity matters has not developed in any significant way and has not kept pace with developments in other countries including England or with the law adminis- tered in the Ecclesiastical Courts in Ireland. Thirdly, a comprehensive law which would be both a codifying and reforming measure would greatly assist the public in understanding rights in relation to nullity matters and make the law more easily accessible. Accordingly, it is recommended that a comprehensive, codifying and reforming measure be enacted." The document goes on to list the various grounds of Nullity under existing law-including bigamous mar- riage, underage marriage, marriage within prohibited degrees of affinity, marriages to which an 1811 statute of George III entitled "an Act to prevent marriage of lunatics" applies, invalidity of the ceremony, defective consent, and impotence. In recommendations on these, the Government's paper suggests no change in the present nullity law on prior existing marriage, or on marriages where one of the parties is under age. On affinity, it suggests that "It would be desirable if the prohibited degree of relationship were stated clearly and comprehensively in a new statutory provis- ion Attention should be drawn to the fact that the scope of affinitv has recentlv been restricted in Eng- land." The document says that the George I II "Act to prevent marriage of lunatics" is clearly both obsolete and anomalous and should be repealed. "The Act of 1811 is an aspect of the principle of law which provides that the incapacity or unfitness of a party to a marriage may be a ground for its annul- ment. This principle finds expression in the common law rule relating to non-consummation. In that case it is the physical unfitness of the impotent spouse in relation to a fundamental function of marriage which justifies the law in annulling it." Mental infirmity It is obvious that a person may by reason of a mental infirmity or disorder be as unfit for marriage as is a person found a lunatic by inquisition under the pro- vision of the Act of 1811. "In this connection, the nature of marriage accord- ing to the relevant Irish law should be recalled. By the Common Law as applied in this country marriage is a voluntary union for life which creates and imposes mutual rights and duties. In addition, the Constitution underlines the fact that marriage is to be regarded as more than a civil contract. It is referred to as an 'institution' upon which the institution of the family (which possesses inalienable and imprescriptible rights antecedent to all positive law) is founded, and the State is required to guard with special care the institu- tion of marriage. . . . " "It follows, therefore, that a person may be unfitted for the institution of Marriage and for the responsibili- ties attached to it (including the family responsibilities which the Constitution regards as involved in the mar- riage contract) by reason of mental infirmity or dis- order. "It is recommended, therefore, that legislation should be introduced to deal with unfitness for marriage arising from mental disorder existing at the date of the 125