"26. Distilling all this learning results in some straightforward propositions:
The contract of marriage is a very simple one, which does not take a high degree of intelligence to comprehend.
Marriage is status-specific not spouse-specific.
While capacity to choose to engage in sexual relations and capacity to marry normally function at an equivalent level, they do not stand and fall together, the one is not conditional on the other.
A sexual relationship is not necessary for a valid marriage.
The procreation of children is not an end of the institution of marriage.
Marriage bestows on the spouses a particular status. It creates a union of mutual and reciprocal expectations of which the foremost is the enjoyment of each other's society, comfort and assistance. The general end of the institution of marriage is the solace and satisfaction of man and woman.
There may be financial consequences to a marriage and following its dissolution. But it is not of the essence of the marriage contract for the spouses to know of, let alone understand, those consequences.
Although married couples live together and love one another this is not of the essence of the marriage contract.
The wisdom of a marriage is irrelevant.
Therefore, the irreducible mental requirement is that a putative spouse must have the capacity to understand, in broad terms, that marriage confers on the couple the status of a recognised union which gives rise to an expectation to share each other's society, comfort and assistance."
It is also of interest to note at paragraph 101 of the judgment the Court said:
"101 In this case I am concerned with a marriage said to be invalid on the ground of lack of consent as a consequence of unsoundness of mind. The report explains that under the then existing law such a marriage was void, not merely voidable. This was the case under the pre-1857 ecclesiastical law which became incorporated into secular law by s.22 of the Matrimonial Causes Act 1857. However, it was a doctrine of Canon Law, dating back to the Decretals of Pope Gregory IX in 1227, and adopted by English ecclesiastical law, that a marriage void on the ground that there was no consent at the time of the marriage ceremony could be ratified by consent voluntarily given subsequently, whereupon such consent was deemed to relate back to the time of the marriage. Thus if no valid consent could be given at the time of the marriage in consequence of unsoundness of mind, and the marriage was therefore void, that void marriage could later be ratified following a later mental recovery. This doctrine of ratification was acknowledged in the post-1857 secular law."
We note by way of interest that Dr Prangnell was a witness in the case cited above.
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:
"Further, Article 9(2) sets out the requirements of the Superintendent Registrar in considering an application for notice to marry:
(2) The Superintendent Registrar may request such other information or documents as he or she considers to be necessary and interview either or both of the parties to the intended marriage or any other person for the purpose of considering the application and in particular for the purpose of any of the following -
(a) verifying the accuracy of any information provided or the authenticity of any document;
(b) satisfying himself or herself that both parties are capable of consenting to the marriage and entering into the marriage freely; and
(c ) satisfying himself or herself whether any other ground exists for not issuing a notice of intended marriage."
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:
"(1) In the application of this Law -;
"(a) a person must be assumed to have capacity, unless it is shown that the person lacks capacity in the sense given to that expression by Article 4;
(b) a person is not to be treated (under Article 5 or otherwise) as unable to make a decision -
(i) Unless all practicable steps to enable that person to make the decision have been taken without success; nor
(ii) Merely because the person makes an unwise decision; and
(iii) An act done, or a decision made, on behalf of a person lacking capacity must be done or made in the person's best interests:"
Article 5 is in the following terms.
"5. Inability to make a decision
(1) For the purpose of the application of Article 4(1)(a), a person is unable to make his or her own decision if he or she cannot -
(a) understand information relevant to that decision;
(b) retain the information for a period, however short, which is sufficient to make the decision;
(c) use or weigh the information in making the decision; or
(d) communicate the decision (whether by speech, sign language, or any other means).
(2) Information relevant to a decision includes information about the reasonably foreseeable consequences of deciding one way or another, or of failing to make the decision."
This is the test, so we understand, that was applied by Dr Prangnell in his assessment of the Petitioner.
The Matrimonial Causes (Jersey) Law 1949 , Article 18, is in the following terms:
"18. Decree of nullity
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, that is to say -
.........
(f) that either party to the marriage was at the time of the marriage of unsound mind or was then suffering from mental disorder of such a kind or to such an extent as to be unfitted for marriage or subject to recurrent attacks of insanity or epilepsy;
Provided that, in the cases specified in sub-paragraphs (d), (e), (f) or (g), the court shall not grant a decree unless it is satisfied -
(i) That the petitioner was at the time of the marriage ignorant of the facts alleged,
(ii) That proceedings were instituted within a year from the date of the marriage, and
(iii) That marital intercourse with the consent of the petitioner has not taken place since the discovery by the petitioner of the existence of the grounds for a decree."
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."
This, so the Respondent argues, means that the Court cannot make a finding of nullity.
Decision
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.
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.
Accordingly, the proviso set out in Article 18(1) does not apply as the issue of capacity is not addressed within that article.
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.
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.
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.
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.
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.
In the circumstances in our judgment the marriage was void ab initio and we so declare.
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.
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.
Authorities
Capacity and Self Determination (Jersey) Law 2016.
In the matter of C (Capacity) [2020] JRC 150A .
JJL v LAH [ 2004] JLR [Note 27].
NB (Applicant) and MI (Respondent) [2021] EWHC 224 (Fam) .
Marriage and Civil Status (Jersey) Law 2001.
Matrimonial Causes (Jersey) Law 1949.
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