Member Login

Trial Judge correct to refuse petition seeking decree of nullity

By: James Cross BL

or click here to request site subscription to search and view all judgments

Court of Appeal dismisses appeal from the High Court decision refusing the petition of the appellant for a decree of nullity in respect of the marriage entered into by the parties, on the grounds that the conclusions that the trial judge reached on the evidence were not just correct, but inevitable, and she was correct to dismiss the petition.

Court of Appeal – appeal from High Court decision refusing the petition of the appellant for a decree of nullity in respect of the marriage entered into by the parties – annulment - claims that the respondent subjected her to duress to such an extent that their marriage took place without her full free and independent consent - she was under his control, and by reason of his manipulative behaviour, she had been left isolated from friends and family overseas - respondent lacked the capacity to enter into and sustain a caring and considerate marital relationship by reason of the fact that he was and is in some way mentally unstable, and also by reason of the fact that he is or was either homosexual or bisexual - Circuit Court granted a decree of judicial separation – custody of dependent children - several other proceedings between the parties arising out of the breakdown of the marriage – advised that she might be entitled to a nullity – annulment would set aside Circuit Court orders and allow her to make a fresh application for custody and access – by the time of appeal one of the children was about to reach his majority – judgment of the High Court - ratified, approbated and condoned the marriage by her conduct, and in particular by accepting the validity of the marriage in the judicial separation proceedings – estopped from denying the validity of the marriage – delay in bringing proceedings – High Court found that there was a significant evidential shortfall in the appellant’s case - no hesitation in concluding that the appellant had fallen well short of establishing that she had entered into the marriage under duress, or that the respondent lacked capacity to enter into the marriage for any reason – grounds of appeal – not afforded a fair trial - interactions that the respondent had with the medical examiner appointed by the High Court to examine the parties - conduct of the respondent in procedural matters leading up to the hearing of the petition – failure to give reasons – argued that the trial judge involved herself in ancillary relief matters, which form no part of a nullity application - errors of fact - nowhere in her grounds of appeal does the appellant expressly claim that the trial judge erred in fact in failing to find, on the evidence before her, that the appellant was under duress at the time she married - Hay v. O’Grady – the evidence – evidence of duress - on the evidence before her, the trial judge was, in my opinion, entitled to conclude that there was a paucity of evidence to support the appellant’s claim that her consent to marriage was given under duress – findings of fact supported by credible evidence - appellant failed to establish that she was under duress when she gave her consent to marry, and subsequently married - trial judge was, in my opinion, entitled to conclude on the evidence before her that the appellant’s evidence as to duress was coloured by the subsequent deterioration of the marital relationship – whether the respondent lacked the capacity to enter into and sustain a caring and considerate marital relationship – High Court had no choice, on the evidence before her, but to arrive at the conclusion that the respondent had the requisite capacity - manner in which the trial judge conducted the trial - clear that not only does the appellant not have any evidence to support her claims that the respondent lacked the capacity, for any reason, to enter into the marriage, but the medical inspector appointed by the court to enquire into the issue concluded that there was nothing at all to indicate that the respondent lacked capacity – fair trial rights - the conclusions that the trial judge reached on the evidence were not just correct, but inevitable, and she was correct to dismiss the petition – appeal dismissed.

Note: This is intended to be a fair and accurate report of a decision made public by a court of law. Any errors should be notified to the editor and will be dealt with accordingly.

Leave a Comment

Your email address will not be published. Required fields are marked *