The Gazette 1976

GAZETTE

NE/J

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

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