The Gazette 1990

GAZETTE

SEPTEMBER 1990

however, it would have to be shown that at least the prodromal sym- ptoms of the disorder had mani- fested themselves before marriage. It would not be sufficient to claim that as the patient developed schizophrenia later he must have been previously predisposed. All this is not to say that every person who has been previously diagnosed as suffering fromschizo- phrenia is incapable of contracting a valid marriage. Such a proposition is simply not true - but it is true to say that, if schizophrenia has been diagnosed, an ecclesiastical court considers itself justified in at once having very serious reserva- tions about the patient's capacity for marriage; and, if it is to hold for the validity of the marriage, in requiring positive proof that in the " . . . if . . . it can be shown that the partner had at least early symptoms of schizophrenia at the time of ma r r i age, the application [for a declaration of nullity] will probably succeed." particular case the effects of the illness are not such as to make im- possible a true "partnership of life and love". The proven existence of schizophrenia at the time of the marriage, in one or other of the partners, will itself already have made a serious inroad into the pre- sumption of law which is stated in Canon 1014, that is "that marriage enjoys the favour of law; accord- ingly in a case of doubt the validity of the marriage is to be upheld". In summary, if an application for a declaration of nullity is made, and it can be shown that the partner had at least early symptoms of schizophrenia at the time of marriage, the application will probably succeed. It should be noted that a high proportion of schizophrenics, particularly males, do not marry, and the rate of breakdown of those marriages that do occur is very high. Some marriages, however, do apparently succeed. Civil Courts The position regarding nullity in our civil courts now closely parallels that in the ecclesiastical courts. The most recent judgment that I was able to obtain was delivered in the High Court in February, 1986, by Mr. Justice Blayney in the case of D.C. and D.W.

This was a case in which the wife, at the time that she married, against advice, and largely because she was pregnant, was under the care of a psychiatrist and was diagnosed as suffering from schizophrenia. Mr. Justice Blayney quoted the judgment of Mr. Justice Barrington in the case of RSJ -v- JSJ (1982) in which he said "if therefore it could be shown that, at the date of the marriage, the petitioner, through illness, lacked the capacity to form a caring or considerate relationship with his wife, I would be prepared to entertain this as a ground on which a Decree of Nullity might be granted". In that particular case it was held that such incapacity had not been established and the petition failed. However, Mr. Justice Costello in D - v- C in 1984 quoted this principle and granted the petitioner a declaration that the marriage was null and void "because the respondent, at the time of the marriage, was suffering from a psychiatric illness and as a result was unable to enter into and sustain a normal marriage relationship with the petitioner". Two further cases in 1984 were decided along similar lines and Mr. Justice Blayney stated "these cases are clear authority that a Decree of Nullity may be granted where one of the parties, at the

time of the marriage, was, by reason of illness, incapable of entering into and sustaining a normal marriage relationship with the other". However, he made the point that the ground on which the petitioner relied did not make the marriage void, its effect was to make it voidable only. This was in keeping with a previous judgment by Mr. Justice Costello in D -v- C, to which I have already referred. The petitioner could not accord- ingly rely on this ground as avoiding the marriage unless she could establish that the Respondent had previously repudiated themarriage. He accepted that in the present case this requirement of repudia- tion by the respondent did not create any obstacle as by seeking and obtaining a Decree of Nullity from the ecclesiastical courts the respondent had clearly repudiated the marriage and thereby avoided it. Mr. Justice Blayney went on to refer to a matter which he said at one stage caused him some con- cern. This was that the petitioner had since formed an apparently stable relationship with another man and had two children by him. He concluded, however, "The Court is concerned solely with the effect of the petitioner's illness at the date of her marriage to the respondent. It is not concerned with the state of her mental health

Submi ss ion of Art icles for the Gazette The Editorial Board welcomes the submission of articles for consideration with a view to publication. In general, the most acceptable length of articles for the Gazette is 3,000-4,000 words. However, shorter contributions will be welcomed and longer ones may be considered for publication. MSS should be typewritten on one side of the paper only, double spaced with wide margins. Footnotes should be kept to a minimum and numbered consecutively throughout the text with superscript arabic numerals. Cases and statutes should be cited accurately and in the correct format. A fee of £75.00 is paid to authors for accepted articles.

Contributions

should

be sent

to:

Execut i ve Editor, L aw Soc i ety Gazette, B l ackha ll P l ace, DU B L I N 7.

3 10