Existence of judicial separation – not a bar to a party bringing nullity proceedings
In a recent decision of Judge Leonie Reynolds in AR v DR the wife argued that her husband could not bring nullity proceedings in circumstances where the parties had been judicially separated. She also claimed that her husband was estopped by reason of the delay in bringing such an application.
In her decision Judge Reynolds said that estoppel did not apply in cases in nullity nor was the existence of judicial separation a bar to the husband’s entitlement to bring that application for nullity.
The applicant wife claimed that the marriage took place without her consent without the full free exercise of her independent will and that she lacked the capacity to enter into and sustain a caring and considerate marital relationship.
Judge Reynolds set out the circumstances in which a nullity could be granted. i.e. that the marriage was void. e.g. one of the parties was already married, one of the parties had not reached the age of maturity ,certain formalities had not been complied with ,the degree of relationship between the parties was prohibited under law or the absence of consent. It was the latter ground that was relied upon in this case.
Judge Reynolds also explained that it was possible for a party to argue that the marriage was voidable i.e. failure the parties to consummate their relationship or the inability for one of the parties to sustain a normal marital relationship .It was this latter point that was also claimed by the applicant.
Judge Reynolds, having reviewed the facts, was highly critical of allegations made by the applicant wife and criticised her in very robust terms and refused the application on the grounds that there was no evidence before the court to suggest that there was an absence of consent at the time of entering into the marriage or that there was any inability to sustain a normal marital relationship. `
In making her judgement she quoted from the Supreme Court in the case of LB V TMc i.e. the courts must demand a heavy burden of proof before granting an annulment.
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