339 / 462
GAZETTE
w B
jiii
1
1 ii i
A .
OCTOBER 1992
by Eamonn G. Hall
Supreme Court finds homosexual
lacked capacity to sustain normal
marital relationship
The case of
UF
-v-
JC
which has
been reported recently in
The Irish
Reports
[1991] 2 IR 330 has
important ramifications for persons
interested in family law matters and
for those solicitors, though not
specialists in family law, who may be
asked from time to time to advise
about marriage-related issues.
The wife (petitioner) and husband
married when they were 20 and 22
years of age respectively. There was
one child of the marriage. The wife
presented a petition to the High
Court seeking a declaration that the
marriage was null and void on the
grounds that at the date of their
marriage and prior and subsequent
thereto, the husband was a
homosexual, had homosexual
relationships and by reason of his
homosexual nature and temperament
lacked the capacity to form or to
maintain a normal marital
relationship with his wife and was
unable to understand fully the
nature, purpose and consequence of
the marriage contract.
The parties had normal sexual
relations with each other before their
marriage and the wife did not
suspect her husband's homosexual
nature. The husband had a very
close relationship with another man
B, which the wife was uneasy about.
In addition, the wife alleged that her
husband deliberately picked rows
with her so that he could use it as
an excuse to sleep in a different
bedroom. On one occasion the
husband insisted on giving B a lift to
the airport when he was going on
holiday. The husband went with B
the night before his departure on
holiday and stayed overnight.
Following this incident the wife left
the matrimonial home with her son.
The wife confided her problem in a
woman friend, M.C., who told her
that her husband had been a
homosexual for many years.
When the wife confronted her
husband he admitted the truth about
his homosexuality. He did not enter
an appearance to the proceedings
and intimated through his solicitor
that he did not intend to defend the
matter.
Dr. F P. O'Donoghue, a consultant
psychiatrist, gave evidence of having
seen both parties separately. He
found the wife to be normal in every
way, there being no evidence of any
underlying psychiatric disorder
except an understandable reactive
depression to her situation.
The husband told Dr. O'Donoghue
that his first episode of homosexual
behaviour had been when he was
aged 20, when he met a homosexual
and engaged in mutual
masturbation. From that point on he
had multiple casual pick-ups usually
resulting in mutual masturbation. He
told Dr. O'Donoghue that prior to
getting married he "hoped it would
go away" but this behaviour
continued after marriage. He also
told Dr. O'Donoghue that he was
involved in a homosexual
relationship which had lasted over
two years.
Keane J in the High Court
considered that Dr. O'Donoghue's
findings as to the husband were of
crucial importance and he quoted
the relevant passage from Dr.
O'Donoghue's report. Dr.
O'Donoghue stated that the husband
appeared a quiet co-operative man
who showed no evidence of
schizophrenia or organic brain
damage. Dr. O'Donoghue continued:
" It was my opinion that he
presented as a 29 year old male
homosexual who rated at level 4 or 5
of the Kinsey scale. This is a scale
from 0-6, those at 0 being described
as exclusively heterosexual, those at 1
being almost exclusively [heterosexual]
but with fleeting homosexual
experiences, those at 2 being
predominantly heterosexual but with a
significant number of homosexual
contacts, those at 3 being bisexual,
those at 4 being predominantly
homosexual but with a significant
number of heterosexual experiences,
those at 5 being almost exclusively
homosexual with occasional
heterosexual experiences, and those at
6 being exclusively homosexual."
Dr. O'Donoghue concluded that the
husband had made a serious mistake
in going into the marriage
relationship, as from the history
given, it would appear that he was
predominantly homosexual.
Keane J refused the petition stating
that, inter alia, the husband was at
the time of the marriage a practising
homosexual, a condition which he
concealed from the wife who was
completely unaware of this side of
his nature. Keane J held that both
the husband and wife were at the
time of marriage intelligent adults
who had fully understood the nature,
purpose and consequence of the
marriage contract and neither of
whom was at the time of the
marriage suffering from any form of
mental illness. Keane J also
considered that to formulate new
grounds for nullity in the manner
suggested in recent decisions of the
High Court constituted an
impermissible assumption of the
legislative functions under Article 15
section 2 sub-section 1 of the
Constitution which were vested
exclusively in the Oireachtas. Keane J
also considered that the development
by the courts of the law of nullity in
a fragmented and ad hoc fashion
Nullity of Marriage:
Question of Homosexuality
315