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You are here: BAILII >> Databases >> Jersey Unreported Judgments >> C v D (Matrimonial) [2022] JRC 205 (03 October 2022) URL: https://www.bailii.org/je/cases/UR/2022/2022_205.html Cite as: [2022] JRC 205 |
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Matrimonial - reasons for declaring the marriage void
Before : |
Sir Timothy Le Cocq, Bailiff, and Jurats Crill and Le Cornu |
Between |
C By her Guardian Ad Litem Juliette Gallichan |
Petitioner |
And |
D |
Respondent |
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:
(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?
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.
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.
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:
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:
21. It is also of interest to note at paragraph 101 of the judgment the Court said:
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:
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:
25. Article 5 is in the following terms.
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:
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.
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.