The introduction of divorce in Ireland in February 1997 effected one of the most dramatic and far-reaching changes to family law legislation since the foundation of the State. 

Before the Act came into force, the only divorce recognised in the Republic of Ireland was one obtained outside the jurisdiction. (Section 5 of the Domicile and Recognition of Foreign Divorces Act, 1986, permits the recognition of a foreign divorce in Ireland if granted in the country where either spouse is domiciled). But for the majority of those in broken relationships, the establishment of domicile in a foreign jurisdiction was not possible. Prior to 1996, the only alternative to a foreign divorce for those who wished to remarry in Ireland was a decree of nullity.

Before the introduction of divorce, the number of civil annulments granted by the courts was rising steadily, and the jurisprudence of the High Court ñ at the time, the only court with jurisdiction in the nullity area ñ evolved and developed in tandem with the perceived need for the remedy.

In 1981, eight nullity decrees were granted. By 1990 that figure had risen to 30 and, by 1993, to 45. In the year ending July 1997 ñ following the introduction of divorce ñ the High Court granted 50 decrees of nullity, while the Circuit Court granted three. The following year, the High Court granted 47 decrees of nullity, while the Circuit Court granted a further nine. But, while there was only a marginal variation in the number of nullity decrees, the number of nullity applications plummeted from 84 in 1995/96 to just 20 the year after the introduction of divorce.

Many family law practitioners had predicted that, with the introduction of divorce, a number of those who might earlier have sought a decree of nullity would opt for divorce instead. The figures seemed to prove them right.

In 1996-97, the High Court granted just two divorces, while the Circuit Court granted 93. But the following year, while the High Court granted 13 divorces, the Circuit Court granted 715 (with 729 applications on hand). 

The question must now be asked whether the erstwhile development of the jurisprudence of nullity will start to petrify, following the introduction of what is effectively an alternative remedy. 

History of nullity 

Before 1997, the Irish courts had no jurisdiction to grant a divorce ñ although the High Court always had the power to declare that a valid marriage never existed, by granting a decree of nullity. 

The 1870 Matrimonial Causes and Marriage Law Act approximated the principles and rules of civil nullity to Church rules. That is still the case today, and the grounds upon which a civil court will grant a decree of nullity are much the same as the grounds for a Church nullity. Although Kenny J, in S v S¹, maintained that the 1870 Act did not fossilise the law, the grounds for a civil nullity decree remained largely unchanged for more than a century. 

The award of a decree of nullity has wide-ranging implications. Following a decree, either partner may remarry - or, rather, may marry, as the first "marriage" was not valid. The partners may no longer avail of Constitutional or legislative protection for the family ñ such as the Family Home Protection Act 1976 ñ as they are no longer husband and wife. Partners may not seek ancillary reliefs ñ particularly in relation to property and maintenance ñ available to married couples under the Family Law Act, 1995, or the Family Law (Divorce) Act, 1996. Their children become "non-marital" children. Any agreement entered into on the basis that they were married (such as a separation agreement) would be null and void. 

In order for a court to grant a decree of nullity, it must be satisfied that the purported marriage was either void or voidable. (The difference is that a void marriage is void ab initio, whereas a voidable marriage remains valid until such time as a decree of nullity is granted.) A void marriage does not require a judicial decree of nullity, although parties considering marriage in such a situation may wish to seek a declaration of marital status under s.29 of the Family Law Act, 1995, to avoid future problems. 

The grounds which will render a marriage void are:

1. an existing valid marriage, 
2. where either party was under 18 and had not received a judicial exemption, 
3. substantial failure to observe formalities (such as the required three months' notice),
4. absence of consent (including duress, undue influence, fraud and mental illness),
5. where parties are within the forbidden degrees of blood relationship or 
6. where the couple are the same sex .

As long ago as the mid-19^th century, in Hyde v Hyde², marriage was defined as "the voluntary union for life of one man and one woman to the exclusion of all others". Lord Penzance's definition was paraphrased by Costello P in B v R ³as "the voluntary and permanent union of one man and one woman to the exclusion of all others for life."

If, for example, the parties are not male and female, the relationship cannot be a marriage. In S-T (formerly J) v J⁴, the defendant had been born a female but underwent a partial sex change some time before going through a ceremony of marriage with the plaintiff. The plaintiff remained unaware of the defendant's true gender until her birth certificate was produced at the hearing of the divorce petition 17 years later! As a result, the plaintiff applied for and was granted a decree of nullity. 

(The defendant later applied for ancillary relief, but was refused on the grounds that she had falsely declared that she was a bachelor and that there was no impediment to the marriage. The court said it would be contrary to public policy to allow her to profit from the serious crime of perjury.) 

Although transsexuals have the right to marry in Sweden, Germany, Italy, the Netherlands, Australia, New Zealand and certain US States, the European Court of Human Rights, in Rees v UK⁵, ruled that "the right to marry guaranteed by Article 12 refers to the traditional marriage between persons of opposite biological sex." But the cases of Sheffield v UK and Horsham v UK⁶, based on recent legal, societal and scientific developments, have mounted fresh challenges to national laws which forbid the marriage of transsexuals. 

Even if the parties are respectively male and female, they may not marry if they are within the forbidden degrees of kindred. Although the restrictions were eased a little in the early 20^th century, they still extend to 28 classes of relationship for men and women, ranging from grandparents to nieces, nephews and in-laws. 

For a marriage to be valid, the proper formalities must have been observed. Both parties must have been free to marry, they must have had the required physical and psychological ability to enter into and sustain a normal marital relationship and they must have married voluntarily. But, even if these conditions are fulfilled, they may still fall foul of regulations relating to age, notice, residency or other requirements, the absence of which may invalidate the marriage. 

Since 1 August 1996, under the terms of the Family Law Act 1995, both parties to a civil marriage must be aged over 18 on the day of the marriage. They must also give three months' prior written notification to the appropriate registrar for the district in which the marriage is to take place. The Act permits the Circuit Family Court or the High Court to grant an exemption from the age limits or the notification requirements if both applicants show that the exemption is justified by serious reasons and is in the couple's best interests. The Family Law (Miscellaneous Provisions) Act, 1997, retrospectively validates marriages where notice was given to the registrar of the wrong district or an exemption was granted by a judge of the wrong Circuit Court. 

In the case of C(D) v M (orse C)(N)⁷, the petitioner husband sought a decree of nullity in the High Court on the basis that his wife had been under 21 at the time of the marriage in 1978 and the couple had forged the consent of the respondent's father to the marriage. Geoghegan J ruled that the requirement of parental consent under the Marriages Act, 1972, was directory only, and its absence did not invalidate the marriage. 

One of the most common grounds for seeking a decree of nullity nowadays is duress. Formerly, the courts took a very restricted view of duress as a ground for nullity. Men who married solely because of their partner's pregnancy found that a "shotgun wedding" was not grounds for annulling the marriage. But, in the absence of divorce as an alternative remedy, the Irish judicial view of the concepts of duress, undue influence and mental incapacity developed particularly rapidly in the 1970s and 1980s. 

The onus of establishing lack of consent to a marriage lies on the petitioner. In PM v TR⁸, Lavan J refused a decree of nullity to a petitioner who failed to prove that he had been pressurised into marriage. The High Court ruled, in the case of S v K⁹, that the standard of proof required from the petitioner was the civil standard, the balance of probabilities. In KW v MW¹⁰, the court refused a decree where the husband ñ who alleged duress ñ failed to satisfy the court "on the balance of probabilities, assuming that to be the onus of proof on him and not something more." 

For validity of a marriage, consent must be a "fully free exercise of the independent will of the parties". In N (orse K) v K¹¹, the 19-year-old petitioner had become pregnant after a short, casual relationship and was pressurised by her parents into marrying the child's father. She later sought a decree of nullity on the grounds of duress. The High Court refused a decree, on the grounds that the parties had intended to marry anyway, but the Supreme Court allowed the appeal. It said duress was not restricted to threats of physical harm or other harmful consequences, and the court must consider whether the consent of the parties was real or apparent. If the decision to marry was

"caused by external pressure or influence, whether falsely or honestly applied, to such an extent as to lose the character of a fully free act of that person's will, no valid marriage had occurred"

In DB (orse O'R) v N O'R¹², the High Court ruled that a marriage was invalid if induced by "fear of threats, intimidation, duress or undue influence". Fraud relating to a fundamental feature of the marriage may also negative consent. 

In B v D¹³, the High Court said the "forceful arrogance" of the husband amounted to duress. In S v S¹⁴, the President of the High Court said there was no freedom of will when one party was in the "emotional bondage" of the other. And in CO'K (orse CP) v WP¹⁵, the High Court said attempts by a domineering 18-year-old youth to obtain the consent of a quiet 16-year-old girl amounted to duress and undue influence. In MK (orse MMcC) v FMcC¹⁶, the judge said the will of a reluctant teenage bride and a resentful 21-year-old husband was overborne by their parents. 

In AC v PJ¹⁷, the court found that the pregnant petitioner had married out of a "genuine and justifiable" fear of her "very strict, religious and pious" parents. But pre-existing pregnancy is not, in itself, sufficient to invalidate a person's free consent. In ACL v RL¹⁸, the High Court said a couple aged 28 and 32 with a baby had intended to marry at some stage. In EP v MC¹⁹, the judge refused a decree where a pregnant girl had threatened abortion unless her boyfriend married her. And in BC v LO'F (orse LC)²⁰, where the petitioner had been warned that he would not see his fianc?e or baby again unless he agreed to marriage, the High Court refused a decree of nullity on the grounds that the petitioner had been quite capable of resisting the pressure to marry. 

Similarly in KW v MW¹⁰, where the petitioner claimed he had been pressurised into marrying his 17-year-old pregnant girlfriend, Lynch J in the High Court also said he was satisfied that the couple were in love with each other and had contemplated marriage at some stage in the future, and refused a decree. (The judgment also asserts that "Being Roman Catholic, both the husband and the wife at the time of the marriage had a clear understanding of the meaning and commitment of marriage as a lifelong union". One might wonder whether the threshhold would have been lower for a Protestant!) 

In the case of C(D) v M (orse C)(N)⁷, Geoghegan J accepted that the courts had, for some years, been granting decrees of nullity in cases where young girls had become pregnant and the couple had been subjected to parental pressure to marry. In this case, the petitioner husband sought a decree of nullity on the basis that his wife had been 19 and pregnant at the time of the marriage in 1978. But the judge said that no undue or excessive pressure had been applied to the petitioner husband and, if a decree of nullity were granted in such cases, the courts would never be able to uphold any marriage arising from an unwanted pregnancy. 

Pre-existing mental illness may be grounds for granting a decree of nullity. In RSJ v JSJ²¹, where the husband petitioned after an eight-month marriage because of his own schizophrenia, the court said the husband had understood the nature, purpose and consequences of marriage. If the marriage were voidable, it would only be on the wife's application. But if, through illness at the date of marriage, a petitioner lacked the capacity to form a caring and considerate relationship, the court might consider that grounds for nullity. 

In DC (orse DW) v DW²², the High Court granted a decree to a schizophrenic wife on her own petition, while in JS v JM²³, Lavan J granted a decree of nullity to a petitioner whose wife had been suffering from depression and schizo-affective illness at the time of her marriage, rendering her incapable of giving true consent. 

In PC v VC²⁴, the High Court accepted that the spouses' respective emotional immaturity could be grounds for voidability. And in W v P²⁵, a High Court judge allowed the petition of the wife of a suicidal farmer with an emotional age of five who was psychologically incapable. 

In O'M (M) v O'C (B)²⁶, the Supreme Court granted the petitioner wife a decree of nullity because she had not been informed before the marriage that her husband-to-be had previously attended a psychiatrist for six years. 

More commonly, a marriage is not void ab initio, but is "voidable", which means that it remains valid until a competent tribunal declares otherwise. A decree of nullity in the case of a voidable marriage retrospectively invalidates the marriage. 

The two grounds for voidable marriage are: 

1. incurable psycho-sexual impotence and
2. the inability to enter into and sustain a caring and considerate (or normal) marital relationship.

In W v W²⁸ the wife obtained a decree based on her own - rather than her husband's - psychological incapacity. And in AO'H (orse F) v F²⁹, the court granted a decree where the wife's vaginismus had led to her husband's impotence after 13 years of marriage. 

A marriage is also voidable where, for example, one of the partners was psychologically incapable at the time of the marriage of forming "a caring or considerate relationship" or was emotionally or psychologically immature at the time of the marriage. 

General immaturity or irresponsibility are not in themselves grounds for nullity, as the Supreme Court accepted in HS v JS³⁰. In the High Court, Carroll J. had found no evidence that either party did not know the aspects of a normal marital relationship. The parties were young, sexually active attractive people whose different backgrounds and nationality were not a bar to a normal marital relationship. The petitioner was 21 when she married. She had decided to have a sexual relationship with the respondent and renew it a year later. She could not be described as mature, but her immaturity was not of such a degree as to interfere with her ability to form a marriage contract. 

The trial judge, refusing a decree, said:

"(The petitioner) was infatuated ñ but infatuation which results in marriage is not a ground for nullity. An agreement to divorce if things do not work out is not a ground for nullity. Immaturity is not a ground for nullity, unless it exists to such a degree as to prevent a person giving full consent."

The petitioner appealed to the Supreme Court on the grounds that, once the trial judge had found that the parties "did not intend to sustain a lasting marital relationship if things did not work out between them", as a matter of law the marriage was a nullity. 

But Finlay CJ rejected that argument. He said: 

"(A) party entering into a contract of marriage with the intention, whether expressed or not, of terminating that marriage by divorce at a later stage should both the parties to it not wish it to continue, is entering into a valid marriage according to the law of Ireland, and cannot, upon subsequent proof of that attitude or intention, be entitled to a declaration of nullityÖ 

"Neither immaturity in a general sense nor irresponsibility can of itself and to a general degree only, constitute a ground for nullity, though in particular cases, personality disorders ñ including immaturity or irresponsibility arising from psychiatric or personality disorders ñ may affect true consent or may affect the capacity of a person to maintain a lasting marriage relationship. 

"The capacity to maintain a lasting marriage relationship must, however, be distinguished from an intention that, if it was not convenient or successful to try and do so, that the attempt could be abandoned." 

But in D v C³¹, the judge said a husband's manic depression before, during and after marriage severely impaired his capacity to form and sustain a normal marriage, and he ruled the marriage was voidable, rather than void. 

And in PC v VC²⁴, the High Court said a marriage was doomed from the outset by reasons of the couple's immaturity. Delay in seeking a decree was not evidence of approbation but of confusion. The judge said temperamental incapacity alone was insufficient, but in this case there was also want of capacity, so the marriage was null and void. 

In PK v MBN (orse K)³², the High Court had found that the respondent was suffering from a paranoid psychosis which made it impossible for her to sustain a normal marital relationship, and that, due to her psychiatric illness, she lacked the capacity to form and sustain a lasting marital relationship. 

In the Supreme Court, Hamilton CJ, rejecting the appeal, said the trial judge was entitled to draw inferences from the expert evidence of "the chief psychiatrist of a large psychiatric hospital and a doctor of very extensive experience". 

The length of the impugned "marriage" should not affect the application for nullity, unless the court is of the view that the petitioner has approbated the marriage after realising that it may have been voidable. In CM v EL (orse EM)³³, the parties were granted a decree of nullity after 23 years of marriage, while in W(P) v AO'C (orse W)³⁴, the delay was 32 years. 

Recent cases 

Since divorce became a real alternative, the High Court seems to have been more reluctant to grant a decree of nullity, except in the most clear-cut cases. 

In PC v CM (orse C)³⁵, the petitioner husband was seeking a decree of nullity after six years of marriage. The couple had met when he was 26 and she was 24. She had become pregnant by another man 18 months earlier and had lived with him for some months. She planned to marry the child's father on two occasions, but the arrangements fell through. 

The petitioner eventually bought a house, took the woman to see it and asked whether it would be "all right", which she took as a proposal of marriage! The couple did a pre-marriage course and they planned to adopt her child. The marriage was consummated but a year after the marriage, the wife left the family home for four days and, during that period, had sexual intercourse with the boy's father. When she returned, the couple tried to sort out their difficulties and a year later had a son of their own. 

The following year, the wife went to see a counsellor and eventually began a sexual relationship with him. The wife also met the father of her first son again, and had sex with him several times. 

Five years after the marriage, the husband petitioned for nullity. Consultant psychiatrist Dr Gerard Byrne, for the husband, said the wife had an immature personality disorder at the time of the marriage. He said her behaviour showed her immaturity by 

• turning to the husband for consolation when rejected by her son's father,
• involving both men with her elder son, 
• claiming she had made a mistake in marrying the husband, 
• failing to empathise with her husband's feelings, 
• having a sexual relationship with her counsellor and 
• denying the intimate nature of her meetings with her son's father.

Laffoy J cited the principles set out in UF (orse UC) v JC ³⁶ in which the Chief Justice referred to RSJ v JSJ²¹. In that case, Barrington J had accepted that "if 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", this could be grounds for a nullity decree. 

Finlay CJ, in UF (orse UC) v JC³⁶, had said that the incapacity to enter into and sustain a normal marital relationship might arise, not just from a recognised or defined psychiatric or mental illness, but from "some other inherent quality or characteristic of an individual's nature or personality which could not be said to be voluntary or self-induced." 

He accepted the statement of Costello J in D v C³¹that the law should have regard to the fact that life-long marriage required the creation of an emotional and psychological relationship between the spouses. 

Laffoy J also referred to the judgment of Barrington J in B v M ³⁷in which he accepted that a normal marriage relationship could not exist where one party had a significant degree of emotional immaturity and suffered from a type of "histrionic personality disorder". 

Miss Justice Laffoy said both psychiatric reports accepted that there was no mental or psychiatric illness. The court had to decide whether the wife was "incapable of entering into and sustaining a proper marital relationship by reason of incapacity attributable to some inherent quality or characteristic, or whether a valid marriage has disintegrated by reason of wilful conduct on the part of the wife". 

Laffoy J said the wife's behaviour prior to marriage showed she was resourceful, capable and strong-willed. Although she had, by her conduct, "ruined her marriage and created adverse consequences not only for herself but also for her husband and her children", her nature or personality, as it was originally formed or developed, did not inherently predispose her to act in such a way as to preclude the existence of a normal marital relationship. 

The court, refusing a nullity decree, ruled that the wife

"was not incapable of entering into and sustaining a proper marital relationship with (her husband) and that she was able to understand the nature, purpose and consequence of the marriage contractÖ 

"However, consistent with her conduct before her marriage, she did what she wanted to do, even in circumstances where she was resiling on agreements with her husband and breaking her marriage vows. The position here is that a valid marriage broke down in the summer of 1993, not that the marriage was void ab initio."

In SC v PD³⁸, the petitioner husband, SC, was seeking a decree of nullity after 22 years of marriage. 

The issues to be decided by the High Court, inter alia, were whether at the time of the marriage the wife suffered from a mental illness and/or defective personality which would render her incapable of forming or sustaining a normal lifelong marital relationship with the husband or any children of the marriage, whether the wife was incapable of accepting the nature, purpose and consequences of the marriage contract and whether she was unable to form and sustain a normal lifelong marital relationship with the husband or any children of the marriage. 

The couple had been married in 1974. The wife suffered from manic depressive illness and had been hospitalised on a number of occasions. She was being successfully treated with the drug Lithium, but the marriage broke down in 1984. 

A month before the couple's first baby was born, the wife had an episode of hypermania. A consultant psychiatrist wanted her admitted to a psychiatric hospital, but she was eventually allowed to stay in the maternity hospital, where she was treated with large doses of drugs. After the baby was born, the psychiatrist believed she was still "unstable, unpredictable, seriously disturbed and possibly psychotic". 

The wife showed the same symptoms during her second pregnancy, and exhibited paranoid ideas and delusions. She was treated with electro-convulsive therapy and drugs. She had the same problems with her third pregnancy, after which she spent three months as an in-patient, suffering from acute hypermania, grandiose delusions and bizarre ideas. She was diagnosed as suffering from manic depression and treated with Lithium. Between 1982 and 1989, she was hospitalised four times in a psychiatric hospital. 

A psychiatrist gave evidence that the wife might have had a genetic vulnerability to manic depression, and the illness may have been triggered by the first pregnancy. He believed she could sustain a normal marital relationship, although her depression would have a negative effect on marital relations. The illness could be controlled but not cured. Another psychiatrist said he would have advised her not to get married, and he believed she could not have normal marital relationships. 

McCracken J cited S v S¹, RSJ v JSJ²¹, UF (orse UC) v JC ³⁶ and D v C³¹, in which Costello J had said: 

"(I)t is now possible to identify psychiatric illness, such as for example manic depressive illness, which in many cases may be so severe as to make it impossible for one of the partners to the marriage to enter into and sustain the relationship which should exist between married couples if a lifelong union is to be possible." 

Mr Justice McCracken said that any marriage affected by such an illness would be voidable, rather than void, and added: 

"(I)f at the time of the marriage the (wife) suffered from a mental illness, in this case manic depression, which was of such a severity as to have the effect that she was incapable of entering into and continuing a normal marital relationship with the (husband), then the (husband) is entitled to a decree." 

The judge accepted that the wife's manic depression was a congenital and latent illness which had been triggered by her pregnancy and had thereafter prevented her carrying on a normal marital relationship. But he ruled that the latent illness did not render the wife incapable of forming and sustaining a normal lifelong marital relationship. (He said forming or sustaining was an incorrect phraseology.) 

He believed that, if she had been treated with Lithium at a much earlier stage, she would have been perfectly capable of sustaining the marriage. The judge said that the law had not been extended to the extent where a person could be granted a nullity if suffering from a latent illness which did not affect her ability to enter into marriage, but which might subsequently affect the ability to sustain the marriage. If it were otherwise, he said undiscovered epilepsy or a brain tumour might be grounds for nullity. 

In the case of S(J) v J (orse S) (M)³⁹, where a couple had been married for 25 years, Lavan J granted a decree of nullity on the basis that the respondent wife had been suffering from severe depression before and at the time of the marriage. He said the illness rendered the respondent incapable of giving "a true consent" to the marriage. 

A decree of nullity was also granted in the case of M(BJ) v M(C)⁴⁰ where the petitioner husband was unable to fulfil the fundamental terms of the marriage contract because of his invincible repugnance towards his wife's scarring which she had sustained in a fire at the age of three. The husband had been unaware of this "significant" disfiguration before the marriage. The judge said the wife had deprived her husband of the choice he was entitled to make before marriage as to "whether he would accept his future wife with all her physical infirmities." 

And in the case of DK v TH (orse TK)⁴¹, O'Higgins J granted a decree of nullity to a man who had been sexually abused by a priest for a lengthy period when he was 12. The petitioner's father had died when the petitioner was 14 and he left home at the age of 18 because of friction with his stepfather. The petitioner, who had been a drug abuser, had two children outside marriage. He was later pressurised into marrying by the Jehovah's Witnesses, which group he subsequently joined. The judge said that the cumulative effect of these factors was that the petitioner was in "such an emotional and psychological state as to be quite incapable of entering into a marriage relationship." 

Similarly in WD v CD⁴², Smith J granted a decree of nullity to a man whose family forced him to marry his girlfriend two months after she had their baby. The couple were married within two weeks of a "family conference", despite the opposition of the local priest. Guests were not invited to the wedding reception, which was advertised as a birthday party! The judge said the external pressure from both families meant the decision to marry had lost the character of a fully free act. 

Since the introduction of divorce, there have been relatively few reported High Court decisions on nullity. One reason may be that Section 39 of the Family Law Act, 1995, now gives the Circuit Court power to decide applications for nullity if one of the following requirements is satisfied:

1. either of the spouses concerned was domiciled in the State on the date of the institution of the proceedings concerned,
2. either of the spouses was ordinarily resident in the State throughout the period of one year ending on that date,
3. either of the spouses died before that date and ñ

1. was at the time of death domiciled in the State, or
2. had been ordinarily resident in the State throughout the period of one year ending on that date.

Where proceedings are pending in a court in respect of an application for the grant of a decree of nullity or in respect of an appeal from the determination of such an application and the court has or had, by virtue of subsection 1, jurisdiction to determine the application, the court, notwithstanding section 31(4) of the Act of 1989, shall have jurisdiction to determine an application for the grant of a decree of judicial separation in respect of the marriage concerned. 

A similar jurisdiction is granted by Section 39(2) of the Family Law (Divorce) Act, 1996:

"Where proceedings are pending in a court in respect of an application for the grant of a decree of divorceÖthe court shallÖhave jurisdiction to determine an application for the grant of a decree of judicial separation or a decree of nullity in respect of the marriage concerned." 

(Prior to the enactment of the 1996 Act, it was thought that a marriage could be approbated where one party chose to avail of marital legislation, but the enactment of the foregoing section would seem to suggest that the use of marital legislation does not necessarily approbate a marriage.) 

Section 39(3) of the 1996 Act provides: 

"Where proceedings are pending in a court in respect of an application for the grant of a decree of nullityÖ or in respect of an appeal from the determination of such an application and the court has or had, by virtue of section 39 of the Act of 1995, jurisdiction to determine the application, the court shall, notwithstanding subsection (1), have jurisdiction to determine an application for the grant of a decree of divorce in respect of the marriage concerned." 

The statutory congruence of nullity and divorce in the 1996 Act may be seen as allowing judges to make those fine distinctions which were so evident in earlier reported judgments. The refusal of Keane J to countenance what he considered an impermissible extension of the grounds of nullity in UF (orse C) v JC³⁴ was subsequently rejected by the Supreme Court on the grounds that developments in psychology allowed "a necessary and permissible development of the law of nullity". 

It may not be unreasonable to presume that some of the apparent developments in the doctrine of nullity have been due, not so much to any obvious lacuna in the law, but to the particular circumstances of an especially deserving case. 

But today judges in the High Court and the Circuit Court may award a decree of divorce instead of nullity, or vice versa, depending on the circumstances and taking into account "advances in knowledge and understanding of human affairs". 

In the case of JWH (orse W) v GW⁴³, Mr Justice Higgins refused a decree of nullity to a woman who had been emotionally immature but not psychologically abnormal at the time of her marriage. He said that, although the marriage had not been a success and appeared to have ended many years before, the facts did not warrant the granting of a nullity petition and "(i)t may well be that some other remedy is more appropriate to the petitioner." 

More and more spouses are likely to avail of that remedy ñ divorce. And, while nullity still remains a real option for parties who genuinely believe that their marriage never existed and for parties on whom it might confer some financial advantage, it may be predicted that, with the availability of a practical alternative remedy for spouses wishing to remarry, the judicial development of the doctrine of nullity is likely to become less adventurous in the foreseeable future. 

FOOTNOTES
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