The Gazette 1976

GAZETTE

JUNE/JULY 1976

shown that the petitioner was deceived to the extent that his or her consent to the marriage was not in reality a free consent. " It is suggested that the present rigid categories of duress, mistake, mental incapacity, and fraud should be departed from. Instead, a general principle should be enunciated that a marriage should be null and void if the true consent of either, party was absent. It should go on to provide that in ascertaining whether or not true consent was absent the Court should take into account: (i) the mental incapacity or deficiency of either party at the date of the marriage, including a mental incapa- city to appreciate the nature of the marriage contract and the responsibilities attached to marriage; (ii) deceit on the part of any person deceiving the petitioner as to a fundamental feature of the marriage contract; (iii) duress or undue influence exerted against the petitioner whether exercised by or on behalf of the respondent or not; (iv) threats of grave legal financial or social conse- quence of not marrying including threats associated with a true accusation of legal responsibility, such as paternity or a binding contract to marry; (v) mistakes as to the identity of the other contract- ing party or as to the nature of the ceremony." "It will be a matter for the Court to decide in a case before it whether the deceit was such as to affect the fulness and freedom of the apparent consent of the petitioner to the marriage and if the deceit went to a feature of the particular marriage which the Court was considering which could be regarded as fundamental to it." "Each case would depend on its own facts." Void marriage in case of non-consummation The document recommends that the law relating to non-consummation should be amended so as to provide that a spouse could petition for a decree on the grounds of his or her own impotence. Non-consummation should render the marriage void (not voidable as heretofore). Pointing out that the Irish civil law recognises a distinction between a marriage which is regarded as being "voidable" and one which is regarded as being "void" (a voidable marriage is one that requires a decree to annul it, while a void marriage is regarded as never having taken place), the document recom- mends that this distinction should be abolished. If invalidity arises it should make the marriage void. The document says that non-consummation stemm- ing from psychological inability should be a ground of nullity. "It should be made clear that the psychological inability is one which would include an inability to consummate the marriage with the particular spouse. A marriage should be annulled if it can be shown that the respondent even though capable of intercourse is nonetheless psychologically incapable of consummating the marriage with the other party to it," it states. There should be a bar to obtaining a decree of nullity on grounds of impotence if the petitioner's approbation would render the granting of a decree unjust. "Approbation" is defined as "conduct on the part of the petitioner which so plainly implies recogni- tion of the existence of validity of the marriage as to render it unjust between the parties and contrary to public policy to permit him or her to challenge its validity." Invalid ceremony The document recommends that the doctrine of approbation should apply generally, except where the

solemnisation of the marriage. The term 'mental dis- order' should be defined so as to include any 'men- tal illness, arrested or incomplete development pf mind or psychopathic or any other disorder or disability of mind' which makes the person suffering from it unfit for marriage; and it should be made clear that the marriage would be void." Personality defect "It is proper, however, that account should be taken of the insights which advances in psychiatry and psy- chology have given into aspects of human personality. It is clear that there exist defects of personality which though not capable of being characterised as 'mental disorder' may render the person suffering from them unfit for the responsibilities of a life-long union and the founding of a family. "It is, for example, certain that cases exist where a spouse may at the date of the marriage be so im- mature or may have such an arrested sense of responsi- bility as to render him or her as unfit for marriage as if he or she had been a victim of a mental illness. "It must, of course, be recognised that it is not possible to define by statute the degree of personality defect which would justify an annulment decree being made. Accordingly, considerable. .discretion must be given to the Court to decide each case on its own evidence (including the evidence of psychiatrists and psychologists in appropriate cases.)" "This fact, however, should not preclude the enact- ment of a provision which would allow an annulment of a marriage when the evidence establishes the unfit- ness of a spouse by reason of a defective personality. In this connection, it is to be borne in mind that Ecclesiastical Courts exercising nullity jurisdiction are required to consider and adjudicate upon this evidence. " It is recommended, therefore, that the term 'mental disorder' should be so defined as to include arrested or incomplete development of personality of such a kind as to render the person suffering from it unfitted for marriage." The document recommends that the marriage laws relating to the formal requirements of marriage (that is, the valid form of ceremony and the provisions for registrations, etc.) should be undated and consolidated. New legislation should provide that a marriage should be null and void if the "true consent" of either party was absent. True consent essential The document refers to the fact that threats of the consequences of not marrying will only be accepted as a ground of nullity by the courts if it can be shown that the threats were false or fraudulent. The test to be applied in all cases is whether the consent was free and full. " To apply this test in the law relating to duress an amendment of the law is recommended so as to render invalid a marriage which has been brought about by grave threats of the consequences of not marrying, even if such threats are based on a true accusation, provided that they destroy the reality of the free consent of the party threatened. "The law relating to undue influence should also be extended to cases where it can be established that undue influence was exerted by any person (and not merely the respondent) if it can be shown that such undue influence destroyed the reality of the free consent of the party subject to it. "Deceit exerted by any person, and not merely the respondent, should annul a marriage when it can be 26