The Gazette 1992

GAZETTE

OCTOBER 1992

w B

jiii 1 1 ii i A .

by Eamonn G. Hall

holiday. The husband went with B the night before his departure on holiday and stayed overnight. Following this incident the wife left the matrimonial home with her son.

schizophrenia or organic brain damage. Dr. O'Donoghue continued:

Nullity of Marriage: Question of Homosexuality

" It was my opinion that he presented as a 29 year old male homosexual who rated at level 4 or 5 of the Kinsey scale. This is a scale from 0-6, those at 0 being described as exclusively heterosexual, those at 1 being almost exclusively [heterosexual] but with fleeting homosexual experiences, those at 2 being predominantly heterosexual but with a significant number of homosexual contacts, those at 3 being bisexual, those at 4 being predominantly homosexual but with a significant number of heterosexual experiences, those at 5 being almost exclusively homosexual with occasional heterosexual experiences, and those at 6 being exclusively homosexual." Dr. O'Donoghue concluded that the husband had made a serious mistake in going into the marriage relationship, as from the history given, it would appear that he was predominantly homosexual. Keane J refused the petition stating that, inter alia, the husband was at the time of the marriage a practising homosexual, a condition which he concealed from the wife who was completely unaware of this side of his nature. Keane J held that both the husband and wife were at the time of marriage intelligent adults who had fully understood the nature, purpose and consequence of the marriage contract and neither of whom was at the time of the marriage suffering from any form of mental illness. Keane J also considered that to formulate new grounds for nullity in the manner suggested in recent decisions of the High Court constituted an impermissible assumption of the legislative functions under Article 15

The wife confided her problem in a woman friend, M.C., who told her

Supreme Court finds homosexual lacked capacity to sustain normal marital relationship The case of UF -v- JC which has been reported recently in The Irish Reports [1991] 2 IR 330 has important ramifications for persons interested in family law matters and for those solicitors, though not specialists in family law, who may be asked from time to time to advise about marriage-related issues. The wife (petitioner) and husband married when they were 20 and 22 years of age respectively. There was one child of the marriage. The wife presented a petition to the High Court seeking a declaration that the marriage was null and void on the grounds that at the date of their marriage and prior and subsequent relationships and by reason of his homosexual nature and temperament lacked the capacity to form or to maintain a normal marital relationship with his wife and was unable to understand fully the nature, purpose and consequence of the marriage contract. thereto, the husband was a homosexual, had homosexual The parties had normal sexual relations with each other before their marriage and the wife did not suspect her husband's homosexual nature. The husband had a very close relationship with another man B, which the wife was uneasy about. In addition, the wife alleged that her husband deliberately picked rows with her so that he could use it as an excuse to sleep in a different bedroom. On one occasion the husband insisted on giving B a lift to the airport when he was going on

that her husband had been a homosexual for many years.

When the wife confronted her husband he admitted the truth about his homosexuality. He did not enter an appearance to the proceedings and intimated through his solicitor that he did not intend to defend the matter. Dr. F P. O'Donoghue, a consultant psychiatrist, gave evidence of having seen both parties separately. He found the wife to be normal in every way, there being no evidence of any underlying psychiatric disorder except an understandable reactive depression to her situation. The husband told Dr. O'Donoghue that his first episode of homosexual behaviour had been when he was aged 20, when he met a homosexual and engaged in mutual masturbation. From that point on he had multiple casual pick-ups usually resulting in mutual masturbation. He told Dr. O'Donoghue that prior to getting married he "hoped it would go away" but this behaviour continued after marriage. He also told Dr. O'Donoghue that he was involved in a homosexual relationship which had lasted over two years. Keane J in the High Court considered that Dr. O'Donoghue's findings as to the husband were of crucial importance and he quoted the relevant passage from Dr. O'Donoghue's report. Dr. O'Donoghue stated that the husband appeared a quiet co-operative man who showed no evidence of

section 2 sub-section 1 of the Constitution which were vested

exclusively in the Oireachtas. Keane J also considered that the development by the courts of the law of nullity in a fragmented and ad hoc fashion

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