Matrimonial - reasons for declaring the marriage void
[2022]JRC205
Royal Court
(Samedi)
3 October 2022
Before :
|
Sir Timothy Le Cocq, Bailiff, and Jurats
Crill and Le Cornu
|
Between
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C
By her Guardian Ad Litem Juliette Gallichan
|
Petitioner
|
And
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D
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Respondent
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Advocate L. J. Glynn for the Petitioner.
Advocate B. J. Corbett for the Respondent.
Advocate D. V. Blackmore Amicus Curiae.
judgment
the bailiff:
1.
This is an
application by C, brought by the Viscount in her capacity as Guardian Ad Litem,
(“the Petitioner”) for a declaration that her marriage to D
(“the Respondent”) which took place on 21 October 2017 (“the
marriage”) is void ab initio.
2.
The
background to this matter may be simply stated:
(i)
The
Petitioner has been known to Adult Social Services for a number of years and
has received significant support.
(ii) The marriage took place at the Office of the
Superintendent Registrar and both the Superintendent Registrar and her staff
had concerns about whether or not the Petitioner and the Respondent had capacity
to enter into a marriage. We will
make reference hereunder to the evidence of the Superintendent Registrar who
has both provided an affidavit to us and given oral evidence before the Court. The evidence of the Superintendent
Registrar is, in brief, that she and her staff met the Petitioner and
Respondent on more than one occasion and reached the conclusion that it was
appropriate for the marriage to take place;
(iii) In October of 2019, the Minister for Health and
Social Services issued an application for an order under the Capacity and
Self Determination (Jersey) Law 2016 (“the Capacity Law”)
asking the Court to determine where the Petitioner should live, that she should
have full-time support and that she should only have supervised contact with
the Respondent and, finally, that she did not have capacity to consent to
sexual relations;
(iv) There were a series of adjournments and on 7
February 2020, the Court imposed significant restrictions on the liberty of the
Petitioner under the Capacity Law.
The reasons for the orders made by the Court were set out in the
Judgment of the Court of 31 July 2020 (In the matter
of C (Capacity) [2020] JRC 150A) and the Court under the section
relating to its decision at paragraph 76 et seq, said this:
“76. We are satisfied on the evidence that C
(“the Petitioner”) suffers from an impairment or disturbance in the
functioning of her mind, and furthermore as far as we can see this impairment
will be permanent in nature. Furthermore
we are satisfied that she does not have capacity to make decisions that fall to
us to consider because she does not understand all the information relevant to
the decision, she cannot retain it for a sufficient time to make a decision,
and use or weigh the information accordingly.
77. The evidence to us is clear. We find that C does not have capacity to
make decisions relating to where she resides or the matters raised within the
care plan nor to consent or otherwise to substantial restrictions on her personal
liberty. We are satisfied that she
is an extremely vulnerable adult who is living a haphazard and somewhat chaotic
lifestyle and that she is prey to other people both financially and,
potentially, sexually.
78. We believe that the change in her
accommodation from St Helier to the east of the island would be entirely in her
best interests as would the creation of the regime anticipated in the care plan
that would enable her to receive the support and protection that in our
judgment she needs.
79. We accept on the evidence that C
understands the mechanics of sexual intercourse and that sexual intercourse can
give rise to pregnancy. We do not,
however, find that she has sufficient understanding of the possibilities of
contraception, and of the possibilities of sexually transmitted diseases. Nor do we think that she understands in
any meaningful way the requirement for consent and her right and ability to say
no to unwanted sexual intercourse.
We are struck by the way she characterises sexual activity, her numerous
allegations of rape and her refusal to engage in any way with discussions about
sex with the professionals who are there to support her. It seems to us to be clear that enormous
efforts have been made to engage with her in this respect, and indeed with
regard to other matters of importance within this case, but she has simply been
unable or unwilling to do so.
80. Accordingly we find that C lacks
capacity to consent to sexual intercourse.
81. In our view of the evidence in the
round, she also lacks capacity generally in determining who she should
socialise with. She is, as we have
indicated, extremely vulnerable.”
(v) During the hearing that gave rise to that
Judgment the Court heard from Dr Simon Prangnell who also prepared a report and
gave evidence in connection with the instant application. We will refer to Dr Prangnell’s
evidence below.
(vi) Following the grant of the significant
restriction of liberty order there was some contact between the Petitioner and
the Respondent but ultimately the Respondent instigated divorce proceedings on
the basis that the Petitioner was of unsound mind. That petition was not accepted by the
Family Court. A nullity petition
was prepared but not filed. The
Respondent filed a further petition in June 2021, on the basis that the parties
had lived apart for two years and the Viscount was appointed to act as the
Petitioner’s Guardian Ad Litem to protect her interests. The Viscount has previously held the
role of the Petitioner’s delegate.
(vii) In early October 2021, the Respondent contacted
his advocate to say he no longer wished to be divorced. Curiously this was at approximately the
same time that the Petitioner informed Dr Prangnell that she no longer wanted
to be married to the Respondent.
(viii) The Respondent’s existing petition was
accordingly withdrawn by consent and the present petition for nullity was
issued.
3.
Two
questions accordingly fall to be determined by the Court. The first question is, did the
Petitioner have mental capacity to enter into the marriage? The second question is, if the
Petitioner did not have capacity to do so, is the marriage thereby, void ab
inito or merely voidable?
Superintendent Registrar
4.
We had the
benefit of an affidavit from the Superintendent Registrar (“Mrs
Follain”) of 26 October 2021.
She confirms that although a significant period of time had elapsed, she
recalled the Petitioner and the Respondent’s application for
marriage. At the time, the relevant
statute did not contain express provisions addressing the issue of mental
capacity but she nonetheless scrutinised applications to determine
capacity.
5.
The
question of the Petitioner’s and the Respondent’s capacity was
raised directly with her by a senior Deputy Superintendent Registrar
immediately following the first meeting with the Petitioner and the Respondent
at the office of the Superintendent Registrar in September 2017. Particular concern was raised with
regard to the Petitioner’s capacity to marry as a result of her behaviour
and demeanour.
6.
Following
that alert Mrs Follain closely monitored the application and asked for detailed
file notes to be prepared. They
noted that both the Petitioner and Respondent had difficulties understanding
the application process and indeed attending appointments. The Respondent had indicated that both
he and the Petitioner were dyslexic.
Mrs Follain spoke directly with the Petitioner and Respondent on two
occasions particularly with a view to establishing the Petitioner’s
capacity to marry. She noted them
both as exhibiting unusual behaviour and that the Respondent led the meetings
although he often struggled to follow the requirements. Nonetheless the Petitioner had given Mrs
Follain the impression that she understood the nature of the application she
was making which was to get married to the Respondent. She appeared enthusiastic.
7.
Mrs
Follain specifically asked the Registrar of St Helier to report back and
although she recalls that there was a conversation, she does not recall its
contents other than the St. Helier Registrar in question confirmed that she
also considered that the Petitioner understood that she was applying to get
married.
8.
Lastly,
Mrs Follain raised the question of the Petitioner’s capacity to marry
with another delegate of the Superintendent Registrar who solemnised the
marriage. He did not raise
concerns.
9.
As a result,
Mrs Follain formed the view that the Petitioner and the Respondent had capacity
to marry at the time.
10. In addition to her affidavit Mrs Follain gave
evidence before us. In effect she
repeated her evidence set out in her affidavit and thought that the Petitioner
and Respondent potentially had learning difficulties and were below average in
their behaviour and intellectual capacity.
That did not in itself give her cause for concern.
11. She emphasised that when the marriage was
solemnised there was no test or procedure to assess capacity and she, of her
own volition, sought to form an assessment in this particular case. In response to her questions the
Petitioner and Respondent would say things like “we will be living
together” and “we will be husband and wife”, which answers
they repeated on several occasions.
In cross examination, Mrs Follain said that she did not remember who
answered questions first and that she always met the Petitioner and Respondent
together and never took the Petitioner to one side to explore her independent
understanding.
Dr Simon Prangnell
12. Dr Simon Prangnell (“Dr Prangnell”)
has had fairly extensive involvement with the Petitioner in this case and put
before us four reports and one addendum report which became part of his evidence. It was he who had given evidence in
connection with the application for restrictions which had given rise to the
Court’s judgment in this matter cited at paragraph 2(d) above.
13. Dr Prangnell is a clinical neuropsychologist
and a clinical psychologist and has substantial experience in undertaking
capacity assessments for the purposes of assessing consent. He was originally involved in this
matter in 2018, and although he was not able to meet with the Petitioner
immediately, he did so in 2021.
14. He used a specific tool kit designed to assess
consent to marriage and used it to establish the Petitioner’s
understanding, what the day to day meaning of being married is and what it
means to be a wife. The Petitioner’s
presentation was quite variable and she would quite often resist any questions
seeking to explore her understanding by saying “I do not want to talk
about that”. As their
conversations progressed she would lose engagement and if there was any
question raised in connection with sexual intercourse that would terminate any
conversation between them. She
would talk about her jewellery and other possessions. He specifically drew our attention to
certain sections in his report of 27 October 2021, where, in discussing the
responses from the Petitioner he noted:
“31. She was unable to recall how long she
had known [the Respondent] before they were married.
32. When asked whose idea it was to get
married, she stated “all forced on me”. I asked who and she replied “he
did”. I asked again who she
was referring to and she said “[the Respondent]”.
…..
34. I explored [the Petitioner’s]
understanding of who could marry.
Her first response was “don’t know what you mean” I
gave examples including “red herrings” such as “man and a
woman”, a “man and a man” and a “brother and
sister”. She appeared
agitated and looked away. I
prompted her to reply and she said “you are not explaining it" and
“I do not understand”.
……………..
38. In reply to being asked whether it was
okay to have sex with another person when married she stated
“wouldn’t want another boyfriend” and “try to get [redacted]
to put me on the pill”.”
15. We also considered Dr Prangnell’s
addendum report of 29 March 2022.
He notes in that report concerns being raised with regard to the
Petitioner’s mental health and we note, in particular, that of a report
made in September 2017, the doctors then assessing the Petitioner said, as
quoted by Dr Prangnell:
“17. I noted the report of the Doctor’s
recommendations:
“both doctors concur that
there is evidence of acute mental illness.
It is apparent that there is enduring and chronic mental illness
(manifested in the form of distress, anxiety and fixed delusional
beliefs). However, these symptoms
are not new and have been in existence for a prolonged period”.”
16. In the opinion at the end of this report Dr
Prangnell says at paragraph 18:
“18. Having reviewed the additional records,
I have not found anything that would cause me to alter my opinion that, on the
balance of probabilities, [the Petitioner] lacked the capacity to consent to
marrying [the Respondent] in October 2017.”
17. And then at paragraph 20 he says:
“20. In September 2017 [the Petitioner]
underwent an assessment under the Mental Health (Jersey) Law 2016, it found she
was acutely mentally unwell albeit she did not meet the criteria for detention
as her symptoms occurred in the context of a chronic psychotic illness. This is notable as this assessment took
place approximately 6 weeks before the wedding, and at a time when she was not
taking medication for her illness.
I think there is a strong possibility that she remained unwell at the
time of the wedding in October 2017.”
18. In cross-examination, Dr Prangnell confirmed
that those intending to marry need a basic understanding of the status of
husband and wife and that that would involve mutual support. He had found it very hard to get the
Petitioner to understand relationships and particularly sexual relationships.
The Law
19. We begin with what is the obvious statement,
that a marriage cannot be validly contracted if one or the other party lacks
the capacity, including, of course, mental capacity, to enter into the
marriage. In the case of JJL v
LAH [ 2004] JLR [Note 27] it was held:
“A marriage is void if either
party lacks the capacity to marry the other under the law of the jurisdiction
in which they were domiciled at the time of the marriage. Under Jersey law, a marriage between a
man and his father’s former wife before the coming into force of the
Marriage and Civil Status (Jersey) Law 2001, was void under art. 2 of the
Marriage (Prohibited Degrees of Relationship) (Jersey) Law 1949. After that date, such a marriage would
be void under art 4 of the 2001 Law unless both parties were full age at the
time of the marriage and the younger party had not lived as a child of the
family in relation to the elder party before attaining full age.”
20. We have not had put before us authority in
Jersey which deals upon the issue of capacity to marry. We have, however, had put before us a
decision of Mr Justice Mostyn in the case of NB (Applicant) and MI
(Respondent) [2021] EWHC 224 (Fam) in which the learned judge considered at
paragraphs 10 et seq. of his judgment the issue of capacity to marry. He carried out a detailed analysis of
the case law which we will not repeat in this judgment but he summarised the
position in the following terms:
“26. Distilling all this learning results in
some straightforward propositions:
The contract of marriage is a very
simple one, which does not take a high degree of intelligence to comprehend.
Marriage is status-specific not
spouse-specific.
While capacity to choose to engage
in sexual relations and capacity to marry normally function at an equivalent
level, they do not stand and fall together, the one is not conditional on the
other.
A sexual relationship is not
necessary for a valid marriage.
The procreation of children is not
an end of the institution of marriage.
Marriage bestows on the spouses a
particular status. It creates a
union of mutual and reciprocal expectations of which the foremost is the
enjoyment of each other’s society, comfort and assistance. The general end of the institution of
marriage is the solace and satisfaction of man and woman.
There may be financial consequences
to a marriage and following its dissolution. But it is not of the essence of the
marriage contract for the spouses to know of, let alone understand, those
consequences.
Although married couples live
together and love one another this is not of the essence of the marriage
contract.
The wisdom of a marriage is
irrelevant.
27. Therefore, the irreducible mental
requirement is that a putative spouse must have the capacity to understand, in
broad terms, that marriage confers on the couple the status of a recognised
union which gives rise to an expectation to share each other’s society,
comfort and assistance.”
21. It is also of interest to note at paragraph 101
of the judgment the Court said:
“101 In this case I am concerned with a
marriage said to be invalid on the ground of lack of consent as a consequence
of unsoundness of mind. The report
explains that under the then existing law such a marriage was void, not merely
voidable. This was the case under
the pre-1857 ecclesiastical law which became incorporated into secular law by
s.22 of the Matrimonial Causes Act 1857.
However, it was a doctrine of Canon Law, dating back to the Decretals of
Pope Gregory IX in 1227, and adopted by English ecclesiastical law, that a
marriage void on the ground that there was no consent at the time of the
marriage ceremony could be ratified by consent voluntarily given subsequently,
whereupon such consent was deemed to relate back to the time of the
marriage. Thus if no valid consent
could be given at the time of the marriage in consequence of unsoundness of
mind, and the marriage was therefore void, that void marriage could later be
ratified following a later mental recovery. This doctrine of ratification was
acknowledged in the post-1857 secular law.”
22. We note by way of interest that Dr Prangnell
was a witness in the case cited above.
23. The Marriage and Civil Status (Jersey) Law
2001 does not explicitly provide for capacity as a pre-requisite to
marriage. However, Article 9(2)
states as follows:
“Further, Article 9(2) sets
out the requirements of the Superintendent Registrar in considering an
application for notice to marry:
(2) The
Superintendent Registrar may request such other information or documents as he
or she considers to be necessary and interview either or both of the parties to
the intended marriage or any other person for the purpose of considering the
application and in particular for the purpose of any of the following –
(a) verifying
the accuracy of any information provided or the authenticity of any document;
(b) satisfying
himself or herself that both parties are capable of consenting to the marriage
and entering into the marriage freely; and
(c ) satisfying himself or herself whether
any other ground exists for not issuing a notice of intended marriage.”
24. There is a two-stage test to determine capacity
(although it does not specifically relate to capacity to marry) under Articles
3 and 5 of the Capacity Law.
Article 3 is in the following terms:
“(1) In the application of
this Law -;
“(a) a person must be assumed to have capacity,
unless it is shown that the person lacks capacity in the sense given to that
expression by Article 4;
(b) a
person is not to be treated (under Article 5 or otherwise) as unable to make a
decision –
(i) Unless
all practicable steps to enable that person to make the decision have been taken
without success; nor
(ii) Merely because the person makes
an unwise decision; and
(iii) An act done, or a decision made, on
behalf of a person lacking capacity must be done or made in the person’s
best interests:”
25. Article 5 is in the following terms.
“5. Inability to make a decision
(1) For
the purpose of the application of Article 4(1)(a), a person is unable to make
his or her own decision if he or she cannot –
(a) understand
information relevant to that decision;
(b) retain
the information for a period, however short, which is sufficient to make the
decision;
(c) use
or weigh the information in making the decision; or
(d) communicate
the decision (whether by speech, sign language, or any other means).
(2) Information
relevant to a decision includes information about the reasonably foreseeable
consequences of deciding one way or another, or of failing to make the
decision.”
26. This is the test, so we understand, that was
applied by Dr Prangnell in his assessment of the Petitioner.
27. The Matrimonial Causes (Jersey) Law 1949,
Article 18, is in the following terms:
“18. Decree of nullity
The court may decree the nullity of
a marriage on any ground on which a marriage is by law void or voidable or on
any of the following grounds, that is to say –
………
(f) that
either party to the marriage was at the time of the marriage of unsound mind or
was then suffering from mental disorder of such a kind or to such an extent as
to be unfitted for marriage or subject to recurrent attacks of insanity or
epilepsy;
Provided that, in the cases
specified in sub-paragraphs (d), (e), (f) or (g), the court shall not grant a
decree unless it is satisfied –
(i) That
the petitioner was at the time of the marriage ignorant of the facts alleged,
(ii) That proceedings were instituted
within a year from the date of the marriage, and
(iii) That marital intercourse with the
consent of the petitioner has not taken place since the discovery by the
petitioner of the existence of the grounds for a decree.”
28. The Respondent argues Article 18(1)(f) is the
only section of that Article that is relevant and the Court can only grant a
decree if “the petitioner was unaware of her being of unsound mind at the
time of the marriage, the petition was filed within a year and a day of the
marriage and there has been no sexual intercourse since the Article 18(f)
ground was discovered.”
29. This, so the Respondent argues, means that the
Court cannot make a finding of nullity.
Decision
30. We do not agree with the submissions of the
Respondent in that respect. Article
18(1) provides that the Court may decree the nullity of a marriage on any
ground “on which a marriage is by law void or voidable or on any of
the following grounds”.
This necessarily means that the “following grounds”
set out in sub-paragraphs (a) – (i) inclusive of Article 18(1) are not
the only grounds on which a marriage may be declared void. The pre-existing grounds are not
affected.
31. Article 18(1)(f) talks of an unsoundness of
mind or mental disorder such as to render a person “unfitted for
marriage”. That seems
to us to be different from the issue of capacity which clearly existed as a
ground for nullity and in our judgment continues to exist.
32. Accordingly, the proviso set out in Article
18(1) does not apply as the issue of capacity is not addressed within that
article.
33. Accordingly, in our judgment nothing in the Matrimonial
Causes (Jersey) Law 1949 prevents this Court from making a declaration of
nullity on any ground which existed in law, addition to those specified in
Article 18 including, in our view, a lack of capacity to enter into marriage.
34. We have weighed very carefully the evidence of
both the Superintendent Registrar, which is of course contemporaneous with the
marriage, and that of Dr Prangnell who is, as we have already indicated, a
specialist when it comes to the assessment of capacity.
35. Applying the evidence to the tests set out in
the Capacity Law – to which tests in Dr Prangnell’s evidence was
directed – we are satisfied on the balance of probabilities that the
Petitioner did lack capacity to enter into her marriage with the Respondent.
36. The Superintendent Registrar considered
capacity in the absence of a statutory framework for doing so and she is to be
complimented for it. Nonetheless,
we view her evidence in the light of the fact that she was simply unaware of
some of the surrounding circumstances relating to the Petitioner’s mental
health in 2017 immediately prior to the marriage and that this may well have
altered her assessment of the position.
Whether it would or would not, it was clearly in Dr Prangnell’s
assessment of the position that the Petitioner lacked capacity.
37. Having considered Dr Prangnell’s
evidence, it appears clear to us on the balance of probabilities that by reason
of the difficulties that the Petitioner has, her vulnerabilities, and
exacerbated, possibly, by her pre-existing mental condition uncontrolled by
medication, this materially impacted upon her ability validly to consent to
marriage.
38. In the circumstances in our judgment the
marriage was void ab initio and we so declare.
39. As we have indicated in this judgment our
decision is made on the balance of probabilities and in reliance on our
understanding as to the Petitioner’s mental abilities, whether
exacerbated by unmedicated illness or otherwise, prior to, during and indeed
after the marriage.
40. We understand that many of the difficulties
that the Petitioner suffers will not be susceptible to improvement over time
but that may not be true of all of them and it may not be that the question of
capacity to marry for this Petitioner is settled by this judgment for all
time. As to whether she may at some
point in the future be said to have capacity to consent to marriage must be
judged at the relevant time.
Authorities
Capacity and Self Determination
(Jersey) Law 2016.
In
the matter of C (Capacity) [2020] JRC 150A.
JJL
v LAH [ 2004] JLR [Note 27].
NB (Applicant)
and MI (Respondent) [2021] EWHC 224 (Fam).
Marriage and Civil Status (Jersey)
Law 2001.
Matrimonial Causes (Jersey) Law 1949.