High Court grants nullity for petitioner's mental incapacity despite respondent's lack of repudiation due to concurrent separation proceedings.

Neutral Citation Number: [2005] IEHC 384

THE HIGH COURT

(MATRIMONIAL)

[2000 No: 11M]

BETWEEN

O’K

APPLICANT

AND

O’K

RESPONDENT

Judgment of Mr. Justice O’Higgins delivered on the 29th day of July 2005.

1. This case comes before the court by way of a nullity petition which reads as follows:

“1. Your Petitioner went through a ceremony of marriage to the Respondent,……..otherwise……. at the Church of . . . in

the County of the City of Dublin on the 6th day of September, 1994.

2. Your Petitioner and the said [……..], are and were at the date of the said purported ceremony of marriage, domiciled in

Ireland.

3. Following the said ceremony of marriage, your Petitioner lived and co-habited with the Respondent....

4. There are no children of the, marriage between the Petitioner and the Respondent herein.

5. Your Petitioner and the Respondent have lived separate and apart from one another since in or about the month of

June, 1999.

6. Your Petitioner …. resides at ….Your Respondent herein …. resides at ….

7. Your Petitioner did not give nor was he capable of giving a full, free or informed consent to the said ceremony of

marriage.

8. As of the date of the said ceremony of marriage, your Petitioner by reason of psychiatric illness, personality disorder

and/or emotional immaturity was incapable of entering into and sustaining a normal marital relationship with the

Respondent.

9. As of the date of the said ceremony of marriage, your Respondent reason of emotional immaturity and her state of

mind, was incapable of undertaking the nature, duties and responsibilities of a normal marital relationship with your

Petitioner.

10. The Respondent herein did not give a full, free and informed consent to the said ceremony of marriage.

11. As of the date of the said ceremony of marriage, the Respondent, by reason of emotional immaturity and her state of

mind was incapable of entering into and sustaining a normal marital relationship with the Petitioner herein.

12. The Respondent herein has by her conduct repudiated the marriage between the Petitioner and the Respondent

herein.”

2. By order of the Master of the High Court dated the 19th December 2001, Dr. Michelle Cahill a consultant psychiatrist was appointed

as the medical examiner in this case. By further order of the Master dated the 6th October, 2004 the issues to be tried were set out

as follows:

“1. Whether the Petitioner gave or was capable of giving a full free or informed consent to the ceremony of marriage.

2. Whether at the date of the marriage the Petitioner by reason of psychiatric illness personality disorder and/or emotional

immaturity was incapable of entering into and sustaining a normal marital relationship with the Respondent.

3. Whether at the date of the marriage the Respondent by reason of emotional immaturity and her state of mind was

incapable of undertaking the nature (sic) duties and responsibilities of a normal marital relationship with the Petitioner.

4. Whether the Respondent gave a full free and informed consent to the ceremony of marriage.

5. Whether at the date of the marriage the Respondent by reason of emotional immaturity and state of mind was

incapable of entering into and sustaining a normal marital relationship with the Petitioner.

6. Whether the Respondent has repudiated the marriage and such other issue or issues as to the trial judge shall seem

fit.”

3. In her answer to the petition the respondent denies the incapacity alleged by the petitioner both in respect of his capacity to

enter into the marriage and in respect of her own. She further contends that the petitioner has by his conduct approbated the

marriage and ratified the marriage and contends that he has acted with undue delay and she claims the proceedings amount to abuse

of process of the court.

4. The case was heard over a period of six days and the court heard evidence from no less than five medical doctors (four of whom

were consultant psychiatrists) as well as evidence from four other witnesses, apart from the petitioner himself.

5. On the fourth day of the hearing counsel for the respondent indicated that her client no longer wished to context the nullity

proceedings on foot of matters that had transpired since the hearing commenced. Quite properly the Court was told that financial

arrangements had been put in place between the parties. However these arrangements were in no way dependent on the outcome of

the proceedings. I am quite satisfied that no question of collusion arises in these proceedings.

6. The psychiatric evidence was directed principally to the two main issues in the case. Firstly the ability of the petitioner to exercise

an informed judgment and to consent to enter into the marriage contract. At issue was the question as to whether the apparent

consent to marriage was vitiated by reason of the mental condition and/or use of medication by the applicant. The second issue was

whether the petitioner by reason of his mental condition was capable of sustaining a martial relationship.

The consent issue

7. In regard to the consent issue the evidence was as follows.

8. Dr. Corkery a consultant psychiatrist who treated the petitioner for bipolar disorder between 1991 and 1993 was of the view that

ideally there should be “between six months and a year of the mood being absolutely stable and everything happening as regards

compliance with advice, education and medication” before a person with bipolar illness should enter a marriage contract. She also said

that she would advise persons who had an episode of illness “not to make serious decisions in life for a considerable time until they

are very well settled”.

9. Dr. Cahill was the examiner appointed by the Master of the High Court to report on these issues to the court. It was her considered

opinion having read Dr. Shelley’s psychiatric notes and having regard to the petitioner’s own history that his decision to marry i.e. his

consent to marry on the date of the marriage was not flawed. She was of the view that at that time his mood was stable and

remained stable for a number of months after the marriage until he got depressed. However, Dr. Cahill revised her opinion in the light

of further reports from Dr. Shelley and Dr. Lucey and the light of a fuller history of the applicant and told the court that by reason of

his medication and history of illness she considered that the petitioner was incapable of forming a proper judgment to get married.

10. The applicant was under the care of Dr. Rory Shelley, a consultant psychiatrist from 1993 to 1996. Dr. Shelley saw him on the

29th August 1994 just over a week prior to his wedding and described his mood as normal. When he saw him again two days after the

wedding Dr. Shelley noted that the petitioner had got on well at the wedding. It was his view that the petitioner had the capacity to

enter into a marriage on the date of the wedding and that there was nothing in his mental state at the time of his wedding that would

have impaired his capacity. Dr. Shelley has since concluded that the petitioner suffers from a neurological deficit associated with his

illness. However, even if that deficit were present at the time of his marriage, Dr. Shelley did not think that it was of such a severity

that it would have interfered with his ability to enter into the marriage at the date of the wedding.

11. Dr. Lucey is a consultant psychiatrist who is currently treating the petitioner. He considered that the medication being taken at

the time of his marriage would not have adversely affected the petitioner’s judgment. He thought that the petitioner was quite clearly

capable of consenting to marriage, but that he did not have the capacity to enter into a marriage because marriage involves

commitment.

12. The petitioner himself said in evidence that “certainly I knew what I was doing when I got married”.

13. The petitioner was under medical treatment for bipolar disorder at the time of his wedding. He was on appropriate medication. I

consider that in regard to his capacity to enter the marriage much reliance must be placed on the evidence of the psychiatrist who

was treating him at the time and who saw him shortly before and shortly after the wedding ceremony. I must also have regard to the

evidence of the applicant himself. Moreover there has been evidence from the applicant’s brother between that at his request the

applicant deferred the wedding for a period of about a year. Whatever the advisability of the applicant waiting for a longer period of

stability in his condition, I have little doubt that he was capable of exercising the judgment to get married.

14. In those circumstances the petition cannot succeed on the first issue.

The capability of the petitioner to enter into and Sustain a normal marital relationship with the respondent.

The evidence of the petitioner

15. The petitioner was born in 1946 and commenced work in 1969. He had a very rapid rise in his career and within a period of 10 to

12 years he had no less than 6 offices throughout the country. He had acquired a number of expensive houses as well. The petitioner

told the court of some of his relationships with women. He was engaged at least three times. He was engaged several times to one

particular woman and he told the court that rings were flying “hither and thither”. Despite his success however the petitioner told the

court that he felt lonely and unfulfilled. He felt that things began to go wrong in the mid 1980’s. In 1991 he was first hospitalised for

his bipolar disorder, but prior to that he had been under the care of his very concerned general practitioner. His first admission to

hospital for bipolar disorder was an involuntary admission which occurred after a time when his general practitioner had attempted to

treat him at home. The court was furnished with a synopsises of his attendance at work between the years 1998 and 2003. It is quite

clear from that that because of his illness the petitioner was hugely impaired in carrying on his work during that period of time.

Moreover the evidence of Mr. O’C. partner in one of his offices shows that the petitioner was unable to attend to hiswork, a fact

which caused very great concern to many people. The petitioner described his involvement in fundraising and other things to which he

devoted an inordinate amount of time and effort at a period when he was not very well.

16. The petitioner met the respondent in 1993 some weeks before he was hospitalised for his illness at the end of July of that year.

On his discharge from hospital his mood was unstable. He described an incident where the respondent and himself were ejected from a

public house for unbecoming behaviour while he was in a state of elation owing to his illness and further incidents some short time

later where he took a number of sleeping pills in the early evening because of the onset of depression. During the year prior to his

marriage he was frequently staying in bed. He worked very little and was generally unwell. Sometime before his wedding he resumed

the lithium medication. It is unnecessary in this judgment to detail the history of the marriage given by the petitioner however in the

year following the marriage he had a very poor record of attendance at work. He felt unhappy and frustrated. He encouraged the

respondent to socialise and she frequently stayed out very late returning in the morning time. This was a matter of indifference to the

petitioner. His marriage did not get him “back into normality”. He felt guilty that he was not “behaving like a husband should in every

sense of the word”. The friction between the parties increased over the year. The petitioner described an incident in July of 1997. He

was staying overnight with the respondent in the house of Mr. O’S. The petitioner went to bed early and in the morning he noticed

that his wife and Mr. O’S. were still in the sitting room in a state of partial undress. Mr. O’S’s shirt was open, he had no trousers on

and his penis was exposed and the respondent’s underclothes had been taken off. He knew from looking “that there was something

happening, but he didn’t want to see what was happening. However he did see them kissing. Mr. O’S adamantly denies that he was in

such a state of undress although he may have his shirt open. He denies that there was sexual impropriety other than some kissing.

There is also reference in a diary of the respondent which refers to sexual conduct short of “full sexual intercourse with Mr. O’S. The

petitioner through his counsel relies on his version of this incident as providing evidence that the respondent repudiated the marriage.

In my view if the petitioner’s version of the incident is preferred the behaviour complained of was clearly inappropriate and hurtful

conduct but in my view in the overall context of the marriage history does not prove repudiation of the marriage by the respondent

for the purpose of this case. The petitioner told the court that he was surprised at his own lack of reaction to this particular event

however the physical relationship between the parties ended at that time. The petitioner and the respondent spent more and more

time apart and by the time that they finally parted in 1999 the respondent was living apart from him for a period of about five months

every year.

The evidence of Dr. Corkery

17. Dr. Corkery is a consultant psychiatrist. The petitioner came under her care in June of 1991 having been referred by Dr. Smith his

general practitioner. Her referral letter contains the following which is of relevance:-

“Thank you for agreeing to see [the petitioner] who is suffering from hypomania. I note from my files that he first suffered

from hyperactivity in October ’87 for one month. At that time I was worried about him - he got depressed when he turned

40 years. I made an appointment for him to see Dr. Tubridy in Dublin but he didn’t see the need and did not attend. At

that time he developed an interest in religion again, darting into church throughout the day to light candles, feeling guilty

about his past life’s events. He became over-talkative and gave inappropriate interviews to the radio and newspapers.

While the media people were delighted with his openness, he did spill out details of his personal life and feelings which

were quite unnecessary to be publicised. Normally he was quite a private person.

In October ’88 he lost interest in work, even in enquiring how things were progressing at the office. He was out of work

for one month, staying in bed in his darkened bedroom with phone off the hook and refusing to answer the doorbell.

Normally fastidious about his person hygiene and clothing he neglected himself, became dirty and unkempt, spilling his

bedside drinks and messing the food that he had his office manager deliver to him. This episode followed six weeks of

hyperactivity-organising a massive Fund Raising event locally which was an extravaganza and also getting himself

engaged to be married for the third time.

In November ‘88 I admitted him to the Blackrock clinic for ‘treatment for his D.U.’

While there he was seen by Dr. Peter Fahy whom he had seen in the past. He felt that he was hyperactive but no

evidence of any formal psychiatric illness. His follow up appointment was cancelled by G….

After discharge G. went to see Dr. T. on two occasions on the advice of a colleague in Dublin.

In June ‘89 he again came to see me complaining of being ‘burnt out’, ‘wrecked’, insomnia and requesting something to

‘calm me down’. He was over-talkative, tearful with rapidity of speech. It was noted locally that he was emotionally labile

at public meetings with inappropriate behaviour. He was elated about his new romance, dashing over and back to London

to meet her and relating to all and sundry the details of their relationship.

I prescribed Largactil but as there was nobody to monitor his medication I’m quite sure he didn’t take it regularly. He was

ill for three months. He has not worked for over two years. He attends the office but spends his time organising Fund

Raising events. He spends a lot of his time with the [a singer’s] fan club and promoting [a singer’s]‘look-a-likes’, travelling

to […..]etc.

Having organised a huge Charity Auction in Dublin in April he took to his bed again and felt ‘drained’. I prescribed

Serenance in small doses but I felt he was untruthful when he’d tell me he was taking tabs. as prescribed.

He is hypomanic but can appear to function well. He has no insight into his condition. He has no awareness of the

embarrassment he causes to those around him. When he waits to see me in the surgery he converses in a very loud voice

to the other patients, telling a blonde patient that she is ‘beautiful’ and handing out five pound notes to children.

He is very ill, family and colleagues are very concerned about him. If he refuses treatment it may be necessary to commit

him. I think we must be forceful about the need for treatment. I feel that there is ample evidence of bipolar disorder

which ought to respond to Lithium. I spoke with B.W. the office manager who would take charge of medication. I do not

think [the petitioner] would comply with treatment. He is unmarried and lives alone. There would be a problem at

weekends when travels to Dublin usually. I would value your opinion.

Sincerely,”

18. In June 1991 the petitioner was committed to hospital as an involuntary patient. However after approximately 2 days he was

discharged and readmitted as a voluntary patient to another hospital in the area. There is some confusion as to his periods in hospital

at that time but it appears that he was in hospital initially for a three week period returning home one weekend and that in July of

1991 shortly after his discharge he was readmitted for a period of some days. Dr. Corkery provided a report dated the 9th July 2004

for the purposes of this case. In it she says the following:

“Course of illness:

When [the petitioner] was under my care he showed evidence of quite severe Bipolar affective disorder with

considerable lack of insight into his illness i.e. poor realisation of the severity of the illness, the need for treatment

and the need for compliance with treatment. As a result . . .[the petitioner’s] illness was quite difficult to control

and this resulted in his mental state being very unstable at times with resultant disinhibition, overspending, difficulty

carrying out work and poor judgment when elated. While depressed [the petitioner] shows a poor level of

functioning and often feels so depressed that he spent prolonged periods in bed and showed inability to carry out

normal duties and even self-care.

I do not feel that [the petitioner] was in my view capable of having the capacity to enter into and sustain a normal

marital relationship because of his serious mental illness which caused disabling mood swings, disinhibition, variable

levels of activity and impaired judgement also. The illness was compounded by the fact that [the petitioner] is a

very able intelligent man who is a very successful man.

[The petitioner] could be very difficult to persuade re: absolute compliance with medications and absolute

avoidance of alcohol which resulted in his discontinuing his mood stabilisers when he persuaded me to literally

succumb to his persuasive powers and give up lithium his mood stabiliser. This resulted in deterioration in [the

petitioner’s] illness when he was without Lithium which is the Gold Standard Treatment in the Management of Bipolar

affective disorder. When [the petitioner] left my outpatient care in 1993 he was mentally quite unwell and appeared

at that time to see various medical people with ongoing difficulties in stabilising his illness due to [the petitioner]’s

insistence in seeing doctors for psychotherapy and not pharmacotherapy which is the management of a severe

illness such as Bipolar Effective Disorder.

In Conclusion chronic Bipolar Affective Disorder is a very disabling illness and causes very high disability. This was

compounded it (sic) [the petitioner]’s poor compliance with treatment and non-avoidance of alcohol, and resulted in

a very poor level of functioning and overall capability in a man who had previously been a very high achiever and

Business Person.

At times [the petitioner] had to have the intervention of colleague such as Mr. B.W. to insure that his Business

affairs were managed not to mention him being able to manage a serious demanding relationship such as

matrimony”.

19. Dr. Corkery gave evidence that the petitioner had difficulty with sustaining relationships. She based that partly on the fact that

he had rejected such a caring person as the general practitioner Dr. Smith. He had also left Dr. Corkery herself and he had also come

into dispute with Mr. W. who works in his office and was extremely helpful to him. The court has some difficulty with this evidence.

Firstly there is no evidence of the circumstances in which Dr. Smith ceased being the petitioner’s general practitioner. Secondly it

appears that the petitioner’s leaving of Dr. Corkery was at least partly due to his desire to have a “talking only” therapy. This may

indeed, have been an unrealistic ambition, but in view of the side effects that he was experiencing on the lithium programme, it is a

least understandable that the petitioner would wish to change to another regime. Thirdly some reliance is placed on the falling out

with Mr. W. an employee of the petitioner who had been extremely helpful to and concerned about the petitioner during his illness.

However Dr. Corkery was not aware that there are extant legal proceedings against Mr. W. in the name of the petitioner and his

business partner. It is the view of the court that without knowledge of the details and merits of the dispute, no reliance can be put

on the falling out between the petitioner and Mr. W. as impinging on the petitioner’s character. The court has some difficulty too with

the partial reliance placed by Dr. Corkery on a personality trait which she describes as a dislike of females. Firstly there is no mention

of it in her report and no convincing reason has been given to the court for its omission. Secondly it appears that the opinion was

derived very substantially from the view of Dr. Smith the petitioner’s general practitioner, from whom the court has not heard any

evidence. Thirdly the opinion is based at least to some extent on what has been called the rejection of Dr. Smith and the witness

herself. Moreover Dr. Cahill the court appointed psychiatrist is of the opposite view, and considers that the petitioner likes women. I

do not consider it safe to attribute much weight to this particular part of Dr. Corkery’s evidence. In all those circumstances it seems

to me that it would be unsafe to put much reliance on the existence or otherwise of that personality trait contended for by Dr.

Corkery. Dr. Corkery also described an inability at times to understand how others were feeling and insensitivity to the feelings of

other people as being manifested by the petitioner. She said that the petitioner at times “certainly didn’t seem to be aware of other

people’s feelings”. It is of considerable importance that this trait has been noted also by Dr. Mangan, Dr. Shelley and Monsignor O’C.

This is a factor which has impinged on his ability to sustain relationships. Dr. Corkery was also of the view that the petitioner had

many relationships without commitment was an indication that the petitioner would have “immense difficulty” in forming a caring

relationship.

The evidence of Dr. Cahill

20. Dr. Cahill was appointed as medical examiner by order of the Master of the High Court dated the 19th December 2001. She

assessed the petitioner on the 29th May, the 12th July and the 25th October and prepared a report for the Court.

21. Unfortunately in her original report the court appointed examiner did not address at all the issue of the capacity of the petitioner

to sustain a marriage relationship - an issue at the core of this case. When this fact became apparent the petitioner sought by way

of notice of motion dated the 7th May 2004 to have the matter rectified. That application was opposed by the respondent and in the

event was not successful. In hindsight this appears unfortunate. However the witness told the Court that she saw the petitioner on

four occasions over a period of eight hours - although it appears that there may have been only three meetings. Unfortunately the

main focus of the report was addressed to the question of capacity to enter a marriage relationship given the medical history of the

petitioner. The conduct of the partners throughout the marriage was also the subject matter of her interviews. The doctor conceded

that the report could not be considered to be a thorough one. She had not the referral letter to Dr. Corkery who was the first

treating psychiatrist. That letter contained some useful history from the general practitioner Dr. Smith and also referred to depressive

episodes in 1997. The doctor did not have any information from Dr. Corkery. At the time when she saw the petitioner she had merely

a copy of the petition however she subsequently obtained the notes from Dr. Shelley and was in possession of those notes prior to

making her report. It is quite apparent there are serious difficulties with the report. Firstly as has been noted it did not address at all

the central question of the petitioners capacity to sustain a marriage which is at the core of these proceedings, but rather

concentrated on the capacity of the petitioner at the time of the wedding to enter a relationship. Secondly it is apparent that she

was unaware of the full medical history of the petitioner. In particular she was unaware of the fact that he had an episode of

depression in 1987 and that he had been under the care of Dr. Smyth for four years prior to being referred to Dr. Corkery the first

consultant psychiatrist to see him. The medical examiner did not have any report from Dr. Corkery. She assumed understandably - but

in the event incorrectly - that Dr. Shelley had had the benefit of the full relevant medical history of the applicant. Dr. Cahill was at a

further disadvantage in that when preparing the report she was under the erroneous impression that she was not entitled to have

regard to any matters that occurred after the date of the marriage and to take them into account. She had no material from Dr.

Burke who the petitioner told her was treating him at the time, and she had no information from the psychiatrist of the details and

nature of the depression that had lead the petitioner to be hospitalised in 1995. The result of all of these disadvantages was that on

the first day of her evidence the witness had to state that she was not in a position to advise the Court on the issue of the capacity

of the petitioner to sustain a marriage. She further told the Court that she was unable to stand over her report. Dr. Cahill however

also told the Court that, in the light of all of the information of which she was now possessed (including post marriage data) that she

thought - retrospectively that the petitioner was not capable of sustaining a long-term relationship. It has to be stated however that

her evidence is somewhat confusing because later in the same day she told the Court that she was unable to express an expert view

as to the capacity of the petitioner to sustain a marriage. On the fourth day of the hearing the reports of Dr. Shelley and Dr. Lucey

were put to Dr. Cahill and the question of the capacity of the petitioner was revisited. Her final view was that in the light of all of the

information in her possession that the petitioner was not capable of sustaining a marriage by virtue of his illness and personality traits

(she told the Court that he was incapable of understanding the feelings of others). While there was an element of confusion caused

by the evidence of this witness some of which has been set out above - it is safe to conclude that Dr. Cahill, on the fourth day of

the case, felt able to and did in fact express her expert opinion that the petitioner lacked the ability to sustain a normal marital

relationship. This evidence has to be assessed in the light of the rest of the evidence.

The evidence of Dr. Lucey

22. Dr. Lucey is a consultant psychiatrist and is at present treating the petitioner who has been under his care since December 2003

during which period he has seen the petitioner 22 times. He had in his possession reports from Dr. Corkery, Dr. Shelley, Dr. Burke and

a letter from Dr. Smith who had been his G.P. in 1991. His understanding was that the petitioner is suffering from bipolar disorder

which first manifested itself in 1984 when he suffered an episode of depression. In 1987 he had his first hyper-manic episode and

other such episodes in 1989, 1991, and 1993 at which time he was first hospitalised under Dr. Corkery and put on lithium.

23. Dr. Lucey’s report dated the 28th August 2004 contains the following:

“His personality is histrionic in nature being extrovert, emotionally labile, self-centred and attention seeking, and incapable

of understanding [the] feelings of others”.

24. His conclusion was as follows:

“It is my opinion that [the petitioner] has been suffering from longstanding bipolar affective disorder and has underlying

personality difficulties. His illness has never stabilised, and with his underlying personality has resulted in significant

impairment in personal, social and occupational functioning.

It is my opinion that [the petitioner] lacked the capacity to enter into and to take on the responsibilities of the tasks of

marriage and to sustain a marital relationship”.

25. The witness expressed the view that the applicant had a personality disorder, a diagnosis not mentioned to the Court by the

other professionals. Dr. Corkery, however, did mention a personality trait which has already been referred to. Dr. Lucey told the Court

that he was ‘very satisfied’ that this man did not have the capacity to get married. He told the Court that he would be prepared to

form his opinion purely on the basis of the bipolar illness even absent the personality disorder which he diagnosed. His opinion was at

“the very high end of the scale of confidence in its correctness”. Moreover his opinion that the petitioner had not got the capacity to

sustain a normal relationship in the context of marriage was given on the understanding that whatever constitutes normal must

convey a wide range of behaviour. He told the Court that the petitioner was incapable of understanding the feelings of others, he was

insensitive to others.

The evidence Dr. Shelley

26. The petitioner came under the care of Dr. Rory Shelley on the 31st July 1993 when he was admitted to St. John of God’s hospital.

He was subsequently discharged on the 23rd August 1993 and continued to attend Dr. Shelley as a out-patient until October of 1995.

27. Dr. Shelley prepared two reports for the purposes of this case. Having expressed the view that the petitioner was capable of

entering a marriage contract.

28. His report dated the 13th July 1994 expresses the following view in relation to capacity to sustain a normal relationship:

“The issue of his capacity to sustain a normal marital relationship is less clearcut. The recurrent nature of his mood

disorder medically would have predicted that following marriage it was likely that [the petitioner]would experience further

episodes of mood change. My medical notes indicate that subsequent to his marriage he did have episodes of depressed

mood and such required appropriate medication. Such alteration in mood would generally have created strain on his marital

relationship generally and specifically appears to have caused difficulties such as impaired libido either as a consequence

of the mood change in its treatment. This would have a negative impact on his capacity to sustain a normal marital

relationship”.

29. Dr. Shelley explained to the Court what he meant was that the petitioner was likely to experience further mood difficulties. He had

trouble with depression which required treatment and that the depression and/or the medication necessary to deal with it would have

a negative effect on his libido and that this negative effect on his libido would cause marital strain. He did not intend to convey that

he saw the depression as an absolute bar to his capacity to sustain a relationship.

30. Subsequently however as a result of communication with the petitioners solicitor he prepared a report dated the 1st June 2005.

The second report of Dr. Shelley reads as follows:

“This report is in addition to my previous report dated 13th July 2004. It has been prepared:-

"(1) Having received the documentation forwarded to me by Fawsitt, Solicitors on [the] 26th April 2005. This

includes medical reports from Dr. Bríd Corkery, Consultant Psychiatrist, who treated [the petitioner] prior to his

coming into my care, and also from Dr. Michael Lucey, Consultant Psychiatrist who has been treating [the

petitioner] in recent times.

(2) Having met with [the petitioner] on the 1st June 2005.

In my report of 2004 I indicated that the issue of his capacity to sustain a normal marriage relationship was not

clear-cut. On the one hand, on the basis of my experience of treating patients with Bipolar Mood Disorder, I would

have found that the majority proved capable of sustaining normal marital relationships. It is a relapsing and remitting

disorder. With treatment there is a reasonable expectation of long periods of well-being during which the person can

function normally. The prognosis, and any impact on the marriage, is dependant on the patient’s appropriate

compliance with treatment, in particular mood stabilising medication. When a person who has this condition marries,

it can often have a stabilising effect, in that having a spouse helps to monitor changes in mood more completely

than when somebody is living alone, and in particular helps to ensure treatment compliance.

31. On the other hand having read the above named Reports, and met with [the petitioner] for the first time since he left my care in

October 1995 the following is apparent:-

(1) [the petitioner].’s compliance with mood stabilising medication was not as good as I had estimated it to be prior

to his marriage. Therefore the prognosis was poorer than I had anticipated. Failure to comply with medication meant

that his illness was likely to have had a more negative effect on his marital relationship than anticipated.

(2) There has been an overall deterioration in [the petitioner].’s general functioning in life. It is evident that he was

once a successful [……]. Unfortunately, he has changed to being unable to attend to his [work] for long periods of

time with a consequential negative impact on his business. Some of this change was also evident when I met with

him on 1st June 2005. Whereas he retains his pleasant and affable style, there are indications currently that his

cognitive function has deteriorated in some aspects. Whilst talking to him he tended not to grasp accurately what I

was saying and answered some of my questions off the point. This does not appear to be explained by an

alternation in his present mood nor current prescribed medications. Therefore [the petitioner] has been unfortunate

in that his condition has not followed the usual course of relapses followed by full remission. Rather he has

sustained a neuro-cognitive decline. This would be of significant implication for his functioning on all aspects of his

life, including his capacity to sustain a normal marital relationship. This decline is in my view an integral component

of his Bipolar Mood Disorder, although it may only become evident over time as the condition became more chronic.

Arising from points 1 and 2 above, it would now be my view that [the petitioner] was unlikely to sustain a normal

marital relationship.”

32. Dr. Shelley explained his conclusion and said he was of the view that it was probable that the petitioner would not have been able

to sustain a normal marital relationship.

33. There is a difficulty caused by the second report of Dr. Shelley. It appears the revised opinion is based on two factors, one of

which is the fact that the petitioner’s compliance with mood stabilising medication was not as good as Dr. Shelley hoped. However,

there is no compelling evidence that there was an inability to comply with the medical regime as apposed to a failure to do so. Indeed

the evidence to the Court by the petitioner was that he was compliant every day since July 1997. In those circumstances the Court

cannot conclude that the failure to comply with medication was caused by incapacity other than choice. In those circumstances, the

question of capacity to sustain a marriage is not addressed by mere evidence of non compliance with the appropriate medical regime.

34. The second of the reasons for the revised opinion is based on the diagnosis of a neuro cognitive decline which was unfortunately

not anticipated. However the fact such neuro cognitive decline is now present does not in my view address the capacity of the

petitioner to sustain a relationship at the time he entered this marriage. In order to address that issue the Court would need evidence

that the neuro cognitive deficit - as a result of his bi polar condition was present at the time. The Court is in those circumstances not

prepared to rely on the revised opinion of Dr. Shelley.

The evidence of Dr. Mangan

35. Dr. Mangan is a general practitioner who has known the applicant socially since about the year 2000. The petitioner became his

patient in 2001 when he attended him because he was feeling very down. The Court was told the petitioner suffers from manic

depression in which he gets episodes of depression and elation. The doctor’s concern was to try and get the petitioner to comply with

taking his medication because people with the petitioner’s condition are more vulnerable to mood swings than they would normally be

if they were compliant with their medication. When the petitioner was complaint with his medication he improved somewhat but Dr.

Mangan’s view was that he never got him to what he would call “calm waters”. He was either a little depressed or a little elated.

When he was depressed he was vulnerable and the doctor had concerns that the man who was now living alone and was suicidal. He

also saw him elated on a good number of occasions and in those situations he was loud and had no comprehension of his own

nuisance. On one occasion he stayed overnight in the doctor’s house and in the morning came into the living room inappropriately

dressed in that he was wearing a dressing gown that didn’t cover him although there were daughters in the room. The witness

emphasised that the petitioner’s capacity to understand other peoples feelings was “very, very limited” and said that “he has no

comprehension of other peoples feelings …[and] is so wrapped up in his own personality that he has no comprehension whatsoever”.

Dr. Mangan was of the view that it was impossible for the petitioner to sustain a normal marital relationship because of his mood

swings, his inability to relate to others and the unpredictability of his personality.

The evidence of Monsignor O’C.

36. Monsignor O’C. is a Parish Priest. He is a doctor of divinity and a doctor of canon law. He came to know the petitioner well at the

end of the 80’s in which he was involved with him in a committee. He said that in dealing with a team or committee the petitioner’s

behaviour was problematic in the extreme “Constant competitiveness, Constant challenging people”. He said that the petitioner did

not realise how deeply he would hurt people. The first time the witness met the petitioner he was “absolutely on a high”. He described

him as “selling himself more than anything else”, as a “kind of Lorenzo de Medici figure” and described him as being “abnormally high -

definitely beyond the norm”. He described him as histrionic.

37. The witness has expertise in relation to the capacity to marry in the ecclesiastical courts and he worked in the marriage tribunal

as the person who stands for the bonds of marriage and afterwards he became a judge in the tribunal. In that case he had familiarity

with the capacity of person to sustain a marital relationship. The witness felt that he was incapable of sustaining a marriage. He

thought the petitioner had not the capacity to sustain a marital relationship in the context of the jurisdiction that is the ecclesiastical

jurisdiction of which he was familiar. When he heard that he had married he told the Court that “I shook my head and said this won’t

work”. Monsignor O’C. is not a medical expert. It is clear that this Court is concerned only with the civil law concept of annulment and

it is against that background that the evidence of the witness has to be assessed. Nonetheless because of his knowledge of the

petitioner and his wide experience his views are valuable. His views were shared by the brother of the petitioner who told the Court

that even on the day of the wedding he felt scepticism as to whether the marriage would endure.

38. The decision to grant a petition of nullity is a grave matter. In most cases concerning the capacity to enter into and sustain a

marital relationship the Court hears expert opinion on the petitioner’s mental state and frequently hears an analysis of the petitioner’s

personality. The Court is of course obliged to give due consideration to such expert opinion, proffered, as it is, for the assistance of

the Court. However it would be wrong for the court in any case to accept uncritically the evidence of medical experts, no matter how

distinguished. To do so would, in effect, be to substitute the opinion of the medical person involved for the decision of the Court

itself. In this case for reasons I have stated I have reservations over aspects of the evidence of some of the professionals. I have

certain difficulties with certain aspects of the evidence of Dr. Corkery but not necessarily with her conclusions. There were difficulties

too with the original report and with the evidence of Dr. Cahill. For the reasons I have already indicated I do not propose to rely at all

on the revised opinion of Dr. Shelley. However, Dr. Corkery, Dr. Cahill, Dr. Lucey, Dr. Shelley and Dr. Mangan were unanimous in their

view that the petitioner was incapable of sustaining a marital relationship. Their view is shared by Monsignor O’C. and it is clear too

that the petitioners brother had misgivings.

39. The petitioner suffers from Bipolar Disorder. It is described thus by Dr. Corkery:

“It is a severe illness which is characterised by severe sustained alteration of mood which exceeds customary sadness or

customary cheerfulness and is present for a prolonged duration and is accompanied by severe excesses [of] either elation

accompanied by some of the following; over activity, over talkativeness, over spending, promiscuous, disinhibited

behaviour. It’s frequently accompanied by insomnia and irritability. When the patient becomes depressed it is . . . a

severe sustained lowering of mood which exceeds customary sadness. It’s a profound illness which interferes very much

with the persons life and quality of life. There could be severe insomnia as well. There could be periods of not eating

properly. Certainly (he) would not be able to function at work or in personal life and often there would be low self-esteem

and inability to look after their own daily needs. Its quite a severe disabling illness and is characterised usually by a lack

of insight. That the person themselves mightn’t be aware that they had either elation or depression. . . . frequently

judgement is impaired and it is a common manifestation of the illness”.

40. It is important to note also that the existence of Bipolar illness does not indicate that a person has not the capacity to enter and

sustain a marital relationship. Very many people subject to this illness are capable of contracting and sustaining rich enduring marital

relationships. The question in this case is as to whether the petitioner, by reason of his illness and his personality was incapable of

sustaining such a relationship. His illness manifested itself in the mid 1980’s and has caused him to be hospitalised on several

occasions on one of which he was an involuntary patient in a psychiatric hospital. The illness has had devastating effects on his

professional life and led to huge disruption and unhappiness in his private life. Unfortunately despite medical treatment the petitioner

continues to suffer from his illness and there has been some impairment to his cognitive function.

41. In addition to his serious illness the petitioner has a great difficulty or inability to appreciate the feelings of others. This was

stressed by Dr. Corkery, Monsignor O’C. and Dr. Lucey and Dr. Mangan. It is not without significance that both Monsignor O’C. and

the petitioner’s brother had very serious misgivings when they heard they heard that the petitioner was going to get married.

42. Having carefully and critically considered all the evidence in this case, I have no doubt that the petitioner was incapable of

sustaining a marital relationship by virtue of his illness - and its effects on his personality.

43. The Court having decided by reason of his illness that the petitioner was incapable of sustaining a marital relationship, it is

necessary to consider two further matters, firstly, whether it is open to the petitioner to rely on his own incapacity as grounds for

annulling the marriage and secondly whether it is necessary for him to show that the respondent repudiated the marriage by her

conduct. In relation to the first matter it seems clear that a petitioner can rely on his own incapacity at least in circumstances where

the other party has repudiated the matter (see the judgments in McM. v. McM. [1936] I.R. 177, D.C. v. D. W. [1987] 1 I.L.R.M. 58).

However the question as to whether where a petitioner relies on his or her incapacity it is necessary for the marriage to be repudiated

by the other party is a much more complex matter. In McM. v. McM. [1936] I.R. 177 it was held that a spouse can rely on his own

impotence to nullify a marriage only if the other party has previously repudiated the marriage. This decision was followed in many

cases including the J. v. J. [1982] I.LR.M. 263 and D.C. v. D.W. [1987] I.L.R.M. 58. However a different approach was taken by

O’Hanlon J. in the case of P.C. v. V.C. [1990] 2 I.R. 91. At p. 104 of the judgment O’Hanlon J. stated:

“The next question which arises is whether these findings of fact require that I should grant a decree of nullity, as sought

by the husband but opposed with equal determination by the wife. As I have found this an unusually difficult case to

decide, I propose to refer in some detail to the manner in which the law of nullity has developed in recent years in

decisions of the Irish courts”.

44. In S. v. S. (unreported, Supreme Court, 1st July, 1976) Kenny J. reiterated the well established principle that the petitioner must

establish his or her case with a high degree of probability, or ‘must remove all reasonable doubt’. He continued:

“A petitioner cannot be granted a decree for nullity on the ground of his own impotence unless he/she can also satisfy

the court that there has been conduct on the part of the respondent amounting to a genuine and deliberate repudiation

of the marriage contract and its obligations (McM. v. McM [1936] I.R. 77, a decision of Hanna J. in the High Court

followed)”.

45. This passage in the judgment leads to some difficulty. It appears that O’Hanlon J. was of the view that the matter had been

considered by the Supreme Court in S. v. S. However a perusal of the unreported judgment of Kenny J. in the Supreme Court contains

no such passage as is referred to in the judgment of O’Hanlon J. The quotation referred to may have been part of some other

judgment. It would appear to be a reference to the judgment of McM. v. McM already referred to. At p. 219/220 of that judgment the

following passage appears:

“To sum up finally on this difficult question of law, and having considered the argument advanced in its three branches, I

have formed a definite opinion that the decree for nullity of marriage cannot, according to the principles of the

Ecclesiastical Law as administered in our Matrimonial Courts, be granted to a petitioner on the ground merely of a

petitioner's own impotence, but it is clearly established that if a petitioner can, in addition to proof of his own impotency,

satisfy the Court that there has been, and is, conduct on the part of the respondent which has destroyed the verum

matrimonium, e.g., by a genuine and deliberate repudiation of the marriage contract and its obligations, the Court may ex

justa causa grant the relief”.

46. O’Hanlon J. having reviewed the authorities continued at p. 107 as follows:

“As there has been no repudiation of the marriage contract on her part at any stage, but rather the strongest possible

affirmation of it, can the husband rely on what is in large measure his own want of capacity?

In my opinion, he can, primarily because of the fact that the want of capacity existed to some extent on both sides, as it

did in B.D. v. M.C. (Orse. M.D.) (Unreported, High Court, Barrington J., March 1987). If necessary, however, I would also

incline to the view that as both parties entered into the marriage contract innocently, in the sense that they were

unaware that by reason of factors connected with the personality and psychology of each partner, it would be impossible

for them to sustain a normal marriage relationship for any length of time, the petitioner should not be denied a decree of

nullity because the respondent wishes to hold him to the marriage bond.

I think there is a good deal of substance in the criticism expressed by Mr. Shatter, in his excellent book on Family Law,

concerning the application of the principle that a petitioner cannot be heard to rely on his or her want of capacity (be it

physical or psychiatric) in seeking nullity, if the other partner wishes to uphold the marriage bond and has done nothing to

repudiate it. (Family Law in the Republic of Ireland, 2 edn. pp. 73-75). Whereas the law in respect of want of capacity

has developed by analogy with the law applicable in cases of physical impotence, it has resulted in the development of a

new concept, and it appears to me to call for the re-examination of the applicability of the principle stated by Hanna J. in

McM. v. McM. [1936] I.R. 177 in such cases. Such re-examination has already been undertaken by the Court of Appeal in

England in Harthan v. Harthan [1949] P 115. Their conclusion was that even in the case of want of capacity resulting

from physical impotence, unknown to the impotent spouse at the time of the marriage, a decree of nullity should be

granted on his (or her) application, without requiring evidence of repudiation of the marriage by the other spouse.

For the reasons already stated, I do not consider that it is necessary for me to decide the present case on that basis,

but if it were open to me to do I would tend to follow the lead given by that judgment”.

47. This decision of O’Hanlon J. was specifically followed by Quirke J. in the case of P.McG. v. A.F. (Unreported, High Court, Quirke J.,

7th May, 2003)

48. In the light of the above decisions it appears that it is not always necessary that a petitioner seeking nullity on the grounds of his

or her incapacity must also prove repudiation by the other party. That being so in my view (at least in cases where no defence to the

petition has been entered or where such a defence has been abandoned) it is not necessary for the petitioner to prove repudiation of

the marriage by the other party even in cases based on the incapacity of the petitioner. However, it is unnecessary to decide the

case on that basis. In September of the year 2000 the respondent commenced proceedings seeking judicial separation and ancillary

relief in which she claims inter alia that she can “no longer be reasonably expected to live and cohabit with” the petitioner. The

talking of these proceedings constitute sufficient repudiation of the marriage for the purpose of this case.

Accordingly the petition is granted on the grounds that the petitioner by reason of his serious mental illness and its effect on a man

with the personality traits as outlined in the psychiatric evidence was incapable of sustaining a normal marital relationship with the

respondent.