The Gazette 1976

GAZETTE

JUNE/JULY 1976

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

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