cormacburke.me.ke

(Opening address to the Canadian Canon Law Society Convention, St. John's, Newfoundland, October, 1997)

            If I am glad to have been invited to speak on a topic other than canon 1095, the reason is certainly not any feeling that the last word has been said on consensual incapacity. It is simply because of a personal conviction that there are more null marriages today through simulation of consent, than through incapacity for it.

            It was encouraging therefore to see several articles on simulation in a recent issue of The Jurist. One by John Beal remarks that "during the last quarter century, traditional grounds of nullity such as simulation have been in a virtually total eclipse in the marriage tribunals of the English-speaking world" (Beal, John B.: "Proving simulation of matrimonial consent" The Jurist 55 (1995) 745). This is true; and if my view that more marriages today are null because of simulation than because of consensual incapacity is also correct, then it will be a very positive thing indeed if we are emerging from that eclipse. To my mind, if we adapt our practice - whenever appropriate - to this situation, we will be moving on firmer ground. It may take an effort; but it will be more than worth it.

Is simulation more common today?

            It has become almost trite to say that the Church must be capable of reading the signs of the times, that is, of recognizing and analysing new aspects of the life and outlook of our contemporaries, so as to see whether or how they can facilitate - or make more difficult - her task of evangelizing the world. One such phenomenon today is that young people claim their rights, and are allowed to use them, earlier. By the age of 18, they are generally considered to be of age, in other words to have reached a minimum adult maturity (also in church law: cf. c. 97, § 1) [1].

            There is another sign of the times which few would dispute: the great diffidence characterizing contemporary western people toward any type of permanent personal commitment. Such diffidence has of course always existed, since the paradoxical gospel norm that to give oneself, to forget oneself, is a condition for finding or fulfilling oneself, is not easy to understand (at least at first reading), and in any case is never easy to practice. But today there can be no doubt that this diffidence has greatly intensified. As far as our present topic is concerned, the practical result is to make simulation - a conscious reserve about some fundamental aspect of the marital commitment - more likely. This seems to me a legitimate and necessary reading of the times. So much so that one could easily veer towards what might be over-radical conclusions: i.e. that no one todays believes in, or wants, a permanent bond of conjugal love, open to life and faithful until death. It is important to say this too as we begin our reflections on the present topic, for our judgments tend to be colored by our moods; and we need to be on guard against over-pessimism here - no less certainly than over-optimism.

What is simulation?

            The Church believes in marriage; and believes that marriage is the human and supernatural calling of the vast majority of persons. Moreover it strongly presumes that the vast majority wish to marry, are capable of doing so, and are sincere when in fact they choose to go through a marriage ceremony. So c. 1101, § 1 proposes a logical supposition: that in the celebration of matrimony, "the internal consent of the mind is presumed to be in agreement with the words or signs employed".

            The second paragraph of canon 1101 shows however that this presumption, like most human presumptions, can be overturned: "but if either or both parties through a positive act of the will should exclude marriage itself or any essential element of marriage or an essential property, such party contracts invalidly". In other words if, despite what a person externally expresses, he or she internally and positively intends something in fundamental contradiction with that external expression, no valid consent is given. The canon speaks of the exclusion of "marriage itself", i.e. "total simulation", and the exclusion of an essential element or essential property, which is the more common case of "partial" simulation. Both types invalidate consent and render the apparent marriage ceremony null.

            Simulation, one should note, implies conscious deception: deception of the other party, when it is unilateral (as where one, unknown to the other, excludes a permanent bond), or deception of society (at least of that particular society which is the Church within which the persons choose to marry), when it is bilateral (as when both by common agreement totally exclude children).

What is central in the proofs of simulation?

            1) Above all the exclusion of an essential property or element of marriage. This is the real kernel of simulation: a deliberate intention, in the moment of expressing consent, contrary to (i.e. radically inconsistent with) the substance of marriage. What is considered contrary to the substance of marriage? This, along with the question of "positive act", is the major issue to be considered.

            The exclusion must be of some property or element which is essential to the constitution of marriage. To determine what this means is as important as the determination of the "essential obligations" for the purposes of c. 1095. In passing one could note that the whole area of simulation offers a field of reference for the solution of some of the apparently (although not totally) new problems posed by c. 1095.

            Doctrine and jurisprudence have always held that the substance of marriage is marked by three essential characteristics or properties. Marriage is a union of a man and a woman which: a) is exclusive, involving a special promise of mutual fidelity (shown above all in that its distinctive physical expression of conjugal intimacy is not to be shared with a third party); b) can only be broken by death; c) is open to offspring - the potential and most unique fruit of conjugal love and union.

            Jurisprudence has traditionally handled simulation according to this tripartite scheme: consent is invalid if there is a positive exclusion of the "bonum fidei", the "bonum sacramenti" or the "bonum prolis". The codifiers nevertheless, both in 1917 and in 1983, chose to disregard this scheme. Our present c. 1101 hypothesizes simulation rather in terms of exclusion of marriage itself or of "any essential element or essential property of marriage". Under the terms of c. 1056, essential properties of marriage are "unity and indissolubility" (which reiterates what the 1917 Code said in its c. 1013, § 2). However the phrase "essential element" in c. 1101 of the 1983 Code is new. What is intended by this novel term?

            No one disputes that it covers what the former Code described as the "omne ius ad coniugalem actum"; and so post-Code rotal jurisprudence, following its tradition of using augustinian terminology, interprets it as involving the exclusion of the "bonum prolis".

            Here the question arises, and seeks an adequate juridic answer, whether any other legally definable reality is included under this new phrase of the "essentiale aliquod elementum". I consider that it does: concretely an ordination to the bonum coniugum, to the "good of the spouses", which c. 1055 now presents as one of the two institutional ends of marriage. However, the question of what that "ordination to the good of the spouses" means in practice, even at a minimal level, and of what an invalidating exclusion of it implies, has scarcely been addressed and certainly not answered. The problem here - and it is a real problem for serious judicial and jurisprudential thinking and practice - is to show that the exclusion of the "ordinatio ad bonum coniugum" encompasses other juridically qualifiable elements not already covered under the traditional grounds of exclusion; for only if this is so can it take rank as an autonomous grounds of nullity through simulation.

            2) The second main requirement in proving simulation is the presence of a positive act of the will by which one or both parties effects exclusion. In giving consent, a person professes to accept marriage in its essential properties, and is presumed to mean what he or she says. In other words, for marital consent which is true and valid, the parties must be prepared to accept children, and intend to bind themselves conjugally to each other, exclusively and until death, in a union ordered to their "good" as spouses. If either or both excludes one or all of these elements, the marital consent is null [2].

            Of course many people approaching marriage have hesitations about consenting, are "in two minds" about their marital decision, are "not very keen" on having children, are nagged by doubts about the character or stability of the other person, or have general misgivings about the likelihood of the marriage turning out well... In one sense these are normal accompaniments of marriage; but in another they are factors that could favor simulation. How is one to distinguish between consent accompanied by misgivings but really given, and consent that is so conditioned and undermined by doubts as not to be validly given at all? The judge who must attempt to unravel these complexities may find his job easier if he can properly weigh the question of "prevalent intention".

Prevalent intention.

            Simulation involves two intentions which are not easy to reconcile. The simulator consciously intends at one and the same time: a) to change state from unmarried to apparently married; b) not to accept the reality of marriage in some essential aspect.

            If a person is truly in love, it is natural to want to marry, i.e. to want a real marriage. If a person has more misgivings than love regarding the other party, it is not natural to decide to marry him or her; what is natural is to decide to wait, or to break the relation off choosing not to marry, to look for someone else, etc. [3]. The simulator's position is that he does choose to formalize a certain apparent union, even though he does not want a true marriage. In other words, he has an "intentio contrahendi", some reason for apparently binding himself in a married ceremony, when he could have remained even externally free. At the same time he has an "intentio simulandi", a determination not to accept a real marriage. Both intentions require proof. Moreover the proof itself would not be credible unless a reasonable explanation for each intention can be found: "why did he/she apparently marry?"; "why did he/she actually simulate?" Nor would the proof be compelling unless the "unnatural" intention of simulating is shown to have prevailed over the "natural" intention of contracting.

            It can be easier to prove the "intentio simulandi" if it appears from the evidence that there was little or no love in one or both parties when the ceremony was celebrated. If there are indications of fear accompanying the marital decision, one must always look to the possibility of simulation. Similarly, in cases where marriage seems instrumentalized, as a means simply to obtain some material benefit or civil status (e.g. citizenship).

            Some recent writing might give the impression that, in view of modern secularised outlook, rotal jurisprudence no longer insists on the need to establish the fact of a positive act of the will. This however is not so. What is recognized is that the modern mentality makes proving of a positive act easier. Nevertheless the presumption still stands that most people marry with the desire to enter a true marriage; and that the choice of a "marriage" sui generis, i.e. bereft of one of its natural characteristics, must proceed from a conscious and definite act of the will.

Unconscious simulation?

            A positive act of the will is required for simulation. Authors differ as to how one can qualify the "positivity" of this act: as to whether it can be "implicit", "virtual", "habitual", "hypothetical", "interpretative"... The terminology and distinctions at times invoked may seem abstruse. For practical purposes, the main point is that simulation can not be "unconscious" [4].

            Confusion can arise here since it is well accepted that a positive act of exclusion can be implicit. In this context, however, "implicit" does not mean less than conscious; it refers to what, though not explicitly expressed in the moment of consent, is really present [5]. Any thesis which suggests that something less is required than a positive and conscious act of will does not bear scrutiny [6]. Therefore to identify "implicit" with "unconscious" is incorrect. The idea of unconscious simulation makes no sense; no one can unconsciously lie or be untruthful (cf. Summa Th., II-II, q. 3). A positive act must be explicit and clear in the intention of the person, even though, in simulation, it is by definition not externally expressed or explicitated.

            The person who simulates can be unconscious of the juridic effect of simulation - that is, the nullity of marriage - but not of the fact of having made an act of exclusion. The idea that a person can exclude or internally reject what he or she externally professes, without being conscious of so doing, is a hypothesis that simply will not stand. The point is important for the proper weighing of evidence.

            A positive act cannot be habitual ("a general disposition to exclude") or interpretative ("he would have excluded if he had thought of it") [7]. There is common agreement that it can be virtual - in the sense that the exclusory intention, formulated some time before, perseveres in the moment of consent (cf. c. Palazzini, Oct. 8, 1975: vol. 67, p. 543; c. Masala, Jan. 24, 1989: vol. 81, p. 34; c. Serrano, June 2, 1989: vol. 81, p. 404; Jan. 20, 1994, no. 10, etc); and while it is allowed that simulation can be hypothetical, this should be properly understood. One cannot take "hypothetical" here in the sense that a true bond is accepted now, at consent, but the right is reserved to break it in the future, in a given hypothesis; e.g. of adultery by the other party. One cannot break a true bond. Hence hypothetical exclusion properly means that, because of a possibility or hypothesis the simulator has before him at consent (e.g. eventual adultery), he or she in that moment chooses not to accept a true bond. The conditional aspect of the factispecies suggests that such cases would be as well or better treated under c. 1102, § 1, than under c. 1101, §2.

Positive act and modern mentality

            In his article in The Jurist, John Beal suggests that the falling into disuse of simulation was largely due to the over-narrow approach of former rotal jurisprudence in relation to these grounds. He holds that "the rather rigid presumption that all people intended to enter marriage as the Catholic Church authoritatively defined it ended in results that did not seem to do justice to real-life cases". With readily available birth control and legally and socially accepted divorce, he goes on, "traditional jurisprudence seemed at best quaint and at worst benighted" (loc. cit. 745-746).

            I am not convinced that this assessment is sound. My feeling is rather that we have simply fallen into an unwise neglect of frequently occurring grounds. In fact I would go further and say that it is precisely because of the birth-control and the divorce mentalities that the consolidated content of traditional rotal jurisprudence on these grounds is so relevant today. On matters related to simulation there have certainly been some developments in rotal jurisprudence (not all of which can be yet regarded as "consolidated"). But what can serve our English-speaking tribunals is not so much these developments as the simple content of the pertinent canons, and the undoubted fact that conscious and deliberate exclusion of some essential aspect of marriage, as it naturally subsists, is in fact much more frequent today.

            Could there not be an unnecessary weakening of one's anthropological foundations in Beal's suggestion that marriage, such as the Church presents it, is a matter of "authoritative definition", which - presumably - only those well versed in the faith and loyal to it are likely to understand? The concept of marriage as an exclusive, life-long union, open to forming a family, is a totally natural thing. It requires no special faith to understand marriage so; the understanding is easy. The Church here seems to me to have worked from a logical and natural presumption. Is this presumption no longer justified today? I think it is certainly more easily over-turned, but would question any setting up of a counter-presumption - that the majority of persons today no longer appreciate, admire, or want marriage so understood.

            Summing up and complementing what has been said so far, proof of a positive act of exclusion normally requires: a) a confession or avowal of the alleged simulator, which is both "judicial" and "extrajudicial", the latter confirmed by trustworthy witnesses, who heard of it "in tempore non suspecto", and confirmed by them in the course of the hearing (without this confession of the alleged simulator, proof becomes difficult although not impossible. We return to this below); b) a grave "causa simulandi" (which is at least subjectively proportionate), along with a "causa contrahendi"; c) circumstances surrounding the wedding and following the marriage, which make simulation truly credible.

What does positive exclusion mean in relation to each "bonum"?

            The two most common grounds of simulation are exclusion of openness to children (the "bonum prolis"), or of indissolubility (the "bonum sacramenti"). Let us consider some of the major points that can arise under either heading.

            Exclusion of the "bonum prolis". The central issue is whether the natural openness of marriage and married love to procreation was excluded or not (There is no obligation to procreate; only to give a right to procreative acts, which right can be waived by mutual accord). Older jurisprudence centered on the conjugal act itself, on the "ius in corpus"; and reduced the question of possible nullity to whether or not the right to that act in its physical integrity was granted at consent. In that approach an intention such as constantly to use morning-after pills, to have recourse to abortion, etc. would not be considered simulation. Current rotal jurisprudence has abandoned this merely "physicalist" approach and, going back in fact to St. Thomas's analysis, says that it is the "intentio prolis" (Suppl., q. 49, art. 3), or better "openness to procreation", that cannot be excluded without invalidating consent.

            Again older jurisprudence was prone to hold that any type of "temporary" exclusion, in the sense of postponement of having children, invalidated (cf. c. Wynen, May 6, 1941: vol. 33, p. 358; c. Staffa, August 5, 1949: vol. 41, p. 464, etc). In harmony with current magisterial teaching on responsible parenthood, this is no longer held: cf. c. De Jorio, July 22, 1964, vol. 56, p. 643; c. Brennan, Feb. 19, 1965, vol. 57, p. 170; c. Bejan, Nov. 10, 1971, vol. 63, p. 857; c. Ewers, May 8, 1971, vol. 63, p. 388; c. Giannecchini, Jan. 14, 1982, vol. 74, p. 6; c. Bruno, Oct. 28, 1983, vol. 75, p. 540; c. Agustoni, Nov. 7, 1986, n. 3; c. Stankiewicz, Feb. 28, 1989, vol. 81, p. 165; c. Funghini, Apr. 17, 1991, vol. 83, p. 249; c. Bruno, Feb. 1, 1991, vol. 83, p. 68; c. De Lanversin, Nov. 10, 1992, vol 84, p. 537; c. Burke, Dec. 15, 1994, etc.

            There are of course not a few situations where judgment becomes quite difficult. For instance, where there has been an agreement between the couple to postpone starting a family "for X years", or "until we are earning so much money", etc. and, before the stipulation has been fulfilled, one of the two proposes trying to have a child, and the other refuses. I tend to doubt there would be juridic grounds for declaring the marriage invalid, unless c. 1098 on deceit could be invoked.

            It would of course be different if one of the two unilaterally decided to postpone having children for a number of years, or to have just one or two children and no more, and later steadfastly refused the request of the other to start a family before he or she felt ready, or to have another child once the one or two had been born. While this indeed appears as a "refined" sort of simulation, I feel that in practice it too would perhaps be more simply handled under "dolus", and the result should be a declaration of nullity.

            Exclusion of the "bonum sacramenti". To begin with, it is important to note a point made succinctly by Stankiewicz in a Sentence of May 19, 1988: "it is not required for the validity of consent that the contracting parties positively intend indissolubility, but it is enough that this property is not excluded by a positive act of the will" ("ad validitatem consensus non requiritur ut contrahentes indissolubilitatem positive intendant, sed sufficit ut haec proprietas positivo voluntatis actu non excludatur" (vol. 80, p. 328)).

            Rotal jurisprudence has consistently held that when two people are in love, the exclusion of a permanent bond or union runs contrary to their natural tendency. "Solent etenim sive mares sive feminae unionem coniugalem in perpetuum contrahere, veluti naturali instinctu ducti atque idipsum exigente veri amoris sponsalicii natura. Nec ideo facile admitti debet contraria voluntas vel in iis qui placitis erroneis circa doctrinam de matrimonio imbuuntur: aliud est etenim abstracte de connubii cogitare, aliud in concreto velle circa suum coniugium" (c. Pompedda, May 23, 1973: vol. 69, p. 303). "Qui vero ex amore matrimonium contrahit, praesumitur exclusivisse a sua intentione omne quod illius amoris stabilitatem vel perpetuitatem infirmare potest. Etenim, amor, et magis amor magnus, natura sua vult esse perpetuus et excludit, immo pavescit id omne quod eius perpetuitati obstare potest" (c. Palazzini, May 2, 1967: vol. 59, p. 312; cfr. c. Doheny, May 23, 1955: vol. 47, p. 431; c. Felici, July 14, 1959: vol. 51, p. 373; c. Bonet, Feb. 5, 1963, vol. 55, p. 93; c. Anné, Apr. 29, 1969: vol. 61, p. 540; March 21, 1970, vol. 62, 307; c. Raad, March 27, 1980: vol. 72, p. 437: c. Colagiovanni, Oct. 18, 1986: vol. 78, p. 549; c. Ragni, Dec. 16, 1986: ib. p. 716; c. Burke, Apr. 19, 1988: vol. 80, p. 251; c. Stankiewicz, May 19, 1988: ib. p. 328; etc.).

            The proof of exclusion of the "bonum sacramenti" would be easy if it were a matter of simply showing that a person "believed in divorce", and even specifically said that if things did not work out, they would have recourse to divorce. Thirty or forty years ago, when divorce was legal in the U.S. England, Germany, etc. but not in many other countries such as Italy or Spain, rotal jurisprudence continued to presume that the marriage, for instance, of two non-Catholic Americans was valid. One could see from the Acts of those times, and one can still see the same in the acts of many cases today, the non-Catholic replying affirmatively to the question, "Did you intend a life-long union?". Now that legal divorce is a world-wide possibility (in Italy and Spain since little more than 20 years ago; in Ireland since only three), jurisprudence is still trying to adjust to this new situation.

            Some judges, and this probably includes the majority of the Italians, tend to accept that an intention of "recovering one's freedom" [through civil divorce] shows exclusion of the "bonum sacramenti". It appears to me that we are here faced with a complex question of analysis. The phrase "recovering one's freedom" - or some equivalent such as "reserving to one's self the right to terminate the marriage if its outcome is unsatisfactory" - can after all involve one of two quite different intentions. It may mean that a person wants a true marriage now but, if it works out unhappily, is prepared to take advantage of the civil law, so as to divorce and remarry civilly. This, as such, shows a present immoral intention, to be put into effect if a certain hypothesis occurs in the future. Nevertheless, while immoral, the intention is compatible with the acceptance of a permanent bond here and now; it shows that a person is simply prepared - if he or she feels that events warrant it - to violate a real bond properly created. On the other hand, the intention of the person might be not to accept a real bond right now: "I do not accept any permanent bond. I do not commit myself really. And so I actually remain free". This is not only immoral, but does of course invalidate, because it is exactly what simulation means: the here and now rejection of an essential property of the bond which one professes to accept.

            We live in a divorce culture - at least in the West, where people take it for granted that divorce is the solution to a broken-down marriage. This mentality undoubtedly favors simulation. Nevertheless one can question the strength of any argument that the conscious thought, "If it doesn't work out, I can always get a divorce", offers sufficient proof of exclusion. Is there more than a tiny percentage today of couples approaching marriage whose mind is not crossed by such a thought? The problem is to judge whether that thought reflected an intention involving the exclusion of a real marriage, or whether it simply showed their consciousness that there are means for "escaping" from a real - but failed - marriage. As we read in a Sentence coram Serrano of June 22, 1990: "No one will fail to see that "divorce" can be a means for doing one's best to escape from unhappiness, without escaping from a real and binding and conscious obligation" (vol. 82, p. 546). "Caute interpretanda sunt verba a parte catholica prolata: "Si coniugium infelix evadat, divortio ab altera parte divertam". Etiam in regionibus ubi viget lex divortii, catholici nonnumquam hisce verbis tantum significare intendunt sese liberare velle ab omnibus obligationibus erga alteram partem et a vita communi animum nimis opprimente, dum conscii sunt quod ipsum vinculum permanet": c. Anné, March 21, 1970: vol. 62, p. 308).

            The difference of approach here is that the non-Catholic, while wanting a true marriage - also with a lifelong bond - , holds that if the marriage does in fact break down, the bond itself can then be dissolved. There is an error in their belief; but the Church has never held that the error invalidates their first marriage [8]. If it does break down and they divorce and remarry, their subjective position is one of good faith; but objectively it is their first marriage which remains valid, while the second is not.

            I doubt that the Catholic - a normal Catholic - can ever be in such a position. He or she knows that a real marriage bond, once created, ends only with death; and that a divorce, while leaving a person civilly free to contract another union, has no effect on the reality of the bond. If they claim that at the moment of consent they intended divorce if things didn't work out, this does not really touch the heart of the matter - which is whether at consent they accepted, or excluded, one of the essential elements for making a valid bond. The question that not just the Court but even more importantly they themselves have to answer, is: when I married did I really want this person to be my true husband or wife? Exclusion implies not just an intention of "frangendi vinculum", but one of not allowing an unbreakable bond to arise in first place.

            Of course one can say: but many Catholics just don't believe in indissolubility. The point remains that even if this appears so in a particular case before a court, it may help to establish a positive exclusion but does not suffice to prove it. What has to be proved is not a contradiction of principles, but a contradiction of intentions: i.e. between an externally expressed intention - to accept a life-long marriage - and an unexpressed, but actually present, intention to exclude the permanent character of the bond contracted.

            When a couple by mutual choice have had children, this tends rather to argue against unilateral or bilateral exclusion of indissolubility. On the one hand, there is a much higher degree of irresponsibility in choosing to have a child when one has excluded a permanent home for them. Moreover, the choice to have a child is normally a strong confirmation of genuine conjugal love [9]. In practice exclusion of indissolubility is generally accompanied by exclusion of offspring; the opposite is not so true, for people can exclude children even though they intend a permanent union [10].

Error

            Especially when dealing with the "bonum sacramenti", the grounds of simulation (c. 1101) should not be confused with those of "error determinans voluntatem" (c. 1099). The latter, which poses complex problems, does not fall within the heading of simulation, for it lacks the deliberateness of the conscious internal intention - contrary to an intention externally professed - which characterizes the simulator.

            The grounds of invalidating error about the nature of marriage are not grounds of simulation. Simulation implies a deliberate and conscious choice of the free will. It also naturally implies a certain maturity - a sort of warped maturity. For this reason too simulation and grave lack of discretion of judgment can only be put forward as grounds in a subordinate way. "Error that determines the will" means that a person is not free to choose in any other way; it presupposes in fact a sort of intellectual determinism. There lies the particular difficulty of proof regarding "error determinans": to show that the person could not have chosen differently.

            I find it unconvincing to try to uphold the "auto-determination of the will", in the case of c. 1099, by suggesting that the will freely chooses the only "iudicium practicum" offered to it by the intellect (cf. P.-J. Viladrich, in Comentario Exegético del Código de Derecho Canónico, Pamplona, 1996, Vol. III, pp. 1299-1300). In practice, in the moment of consent (at least in a canonical marriage), every normal person - however inclined to consider marriage soluble - is aware of the opposite being proposed to him or her ("until death do us part"). He is aware of two options before him; and it is only where there are at least two options that one can speak of the will freely "determining" itself. If he has only one option before him, because his mind "sees" no other, then he is not free; the will does not determine itself, but is determined by the mind: which is exactly what the canon expresses. The question then arises: can this happen in the case of a normal person, or does such an hypothesis not bear greater affinity to the grave lack of discretion of judgment of c. 1095, 2° ? If seen in this latter light, deeply-rooted error, which determines the will (and so takes away its freedom), rather than simulation - which it certainly is not - , might ultimately be better analyzed as a form of incapacity (consensual incapacity is always characterized by its unconscious character: the person is not aware of his incapacity). For simulation, free will is essential.

The question of the "confessio simulantis"

            The "confession of the alleged simulator" is in principle the ideal proof; without it an affirmative decision becomes difficult. To balance this however, two contrasting points should be borne in mind: a) the "confessio simulantis" may not be considered sufficient proof; b) even if the alleged simulator denies any exclusion, it may still be possible to arrive at an affirmative decision.

            Here one notes a special peculiarity of simulation cases. In principle people giving sworn evidence are presumed to be speaking the truth. However the person who under oath confesses or asserts to simulation, is claiming that he lied in a most serious matter in the past. It would be against judicial and common sense to hold that the alleged simulator's confession can be sufficient in itself. Then it would be enough for a party to say he had lied in the past, to grant him his claim in the present. His credibility is in some way always in placed doubt by the very claim of having simulated. By his own testimony he says he lied before; he may be lieing now. So the judge has very particularly to weigh his confession in the light of other evidence and the whole facts of the case.

            Certainly the new Code allows greater force to be attached to the evidence of a single witness, and to the "confession" of the party(ies). One must however take note of the whole of c. 1536, § 2: "In cases which concern the public good... a judicial confession and the declarations of the parties which are not confessions can have a probative force to be evaluated by the judge along with the other circumstances of the case; but complete probative force cannot be attributed to them unless other elements are present which thoroughly corroborate them".

How should the instruction be carried on?

            The instruction of a case of alleged simulation can normally be briefer and more concrete than cases of consensual incapacity tend to be. One is seeking to establish a specific and conscious intention. Questions directed to the parties and the witnesses should be relevant to this: was there a history of sexual looseness? Were there any indications in the background of the party or parties that would favor a divorcist mentality or show an aversion to children? Did they make statements indicating an exclusory intention at a "non-suspect" time (i.e. before the wedding, or certainly before the marriage began to run into difficulties)? Were contraceptives constantly used? Was there an abortion? The Defender of the Bond will have a special contribution to make to the formulation of properly relevant questions.

            The psychological makeup of the party or parties is certainly pertinent, inasmuch as it may show a solid or unstable character, a more moral or a fairly loose sex life, a tendency to be faithful to commitments or the opposite. Nevertheless psychological expertises are normally not relevant in the cases we are considering. Simulation, as we noted before, implies a weighed and conscious decision; it presupposes both an awareness of the essential properties (and therefore of their corresponding rights and obligations) of marriage, and the free choice to exclude one or all of them.

            So I do not go along with the suggestion that one can take a "canon 1095 approach to canon 1101", seeking to build up a psychological portrait and to judge the case mainly on it. Certainly one can argue that psychological issues enter into c. 1099. The danger there is that one can take the canon on "error determinans", and treat it as lightly as c. 1095 has so often been treated. To my mind that would be anything but an advance.

            Canons 1558-1571 give detailed norms governing the examination of witnesses in canonical processes. These norms are designed to ensure, as far as possible, that the evidence so collected (and from which the Acts are built up) will be truthful (c. 1562), pertinent to the issue (cc. 1563-64), facilitated by fair questions (c. 1564) and spontaneous answers (c. 1565), normally given orally (c. 1566), in the presence of a notary (c. 1651; cf. cc. 1567-68), and finally signed by the witness, the Judge and the notary (c. 1569). These are an important part of the means by which the Church tries to ensure and protect what we term "due process". It is to be regretted that much of it is not standard practice in some countries, especially in relation to cases of consensual incapacity. The result is a weaker instruction, that instead of clarifying the questions or doubts before the judge, often leave them obscured in a haze of irrelevant details. Since simulation centers on very precise points, it usually permits a simpler and more direct instruction; in principle this lends itself to a briefer process. Beal rightly comments "it may be necessary to forego the use of standard witness questionnaires and to tailor written interrogatories to the circumstances of individual cases" (loc. cit. 762).

            I realize that if a tribunal's practice has hitherto centered mainly on one grounds, the prospect of adapting to "new" grounds may not appeal. It is worth emphasizing however that cases of simulation tend to be much more concrete, and this should lead to a simplification of work, as well as - more importantly - to decisions that in many cases are juridically sounder. But some adaptations of approach and practice would certainly be needed. For that reason I am not happy with over-emphasis on the interrelatedness of the grounds of nullity, especially those of simulation and consensual incapacity. As we have noted before, the grounds are so distinct that one could only propose incapacity subordinately (i.e. "quatenus negative") to simulation.

NOTES

[1] Incidentally, this modern phenomenon, if soundly based, does seem to pose some problems for any generalized jurisprudential practice suggesting that fewer people are capable of valid consent than was the case some decades ago.

[2] Proof of a positive act excluding an essential element is necessary to justify a declaration of nullity. At times one comes across suggestions that proof of a positive act accepting the essential elements of marriage is needed, to uphold validity. Law and jurisprudence do not accept this, for validly given marital consent is positively shown in the very expression of consent; this is the tenor of c. 1101, § 1. "Non semel iurisprudentia Nostri Fori in mentem revocavit minime requiri ad valide contrahendum ut nubentes positivum actum proferant quo proprietates essentiales vel essentialia elementa vel naturalem ordinationem matrimonii acceptent propriaque faciant. Necesse, e contra, est ad irrite contrahendum ut eadem positive refutentur, scilicet ut ambo contrahentes per pactum vel alteruter voluntatis actum excitet quo elidat vel re corrumpat intentionem verum ineundi matrimonium, per verba in ritu exterius prolata significatam" (c. Funghini, July 7, 1993: vol. 85, p. 521).

[3] Do most people today prefer "trial" marriages? If a girl is not sure of a boy, is it logical to want to "try out" a sort of marriage with him? Or is it more logical to look for a different boy she can be surer about? Or are we at such a stage that no one any longer feels sure about anyone else?

[4] "Qui scilicet positivo voluntatis actu reiicit indissolubilitatem matrimonii, nequit hoc ignorare" (c. Wynen, Feb. 6, 1936, RRD, vol. 28, p. 102). "Simulatio vero est quid positivum, seu a voluntate procedit, nec consistit in mero defectu consensus seu absentia voluntatis actus. Secus non haberetur actus humanus... Qui simulat, vult simulare" (c. Heard, March 22, 1947, vol. 39, p. 191). "Positivus voluntatis actus, pro utraque exclusionis forma lege requisitus, talis non est seu vim non habet coniugium vanificandi, nisi conscienter ac deliberate eliciatur" (c. Ferraro, Nov. 11, 1980, vol. 72, p. 718).

[5] "Omnes sciunt dari quoque actum positivum implicitum. Sed erronee quis putaret actum implicitum significare actum praesumptum. Sane actus praesumptus est actus cuius per se ignoratur exsistentia, cuius tamen exsistentia respondet coniecturae plus minusve probabili. Exinde patet in actu praesumpto nihil haberi positivae rationis. E contra, actus implicitus remanet in ordine positivo, quia, quamvis eius substantia non appareat directe et immediate in manifestatione agentis, tamen ibidem identidem continetur, realiter et non praesumptive, positive et non interpretative, quamvis velut in plicis, seu in sinu eiusdem manifestationis. Non licet, ideo, actum positivum ita exinanire, ut conspici possit in simplici coniectura" (c. Sabattani, Oct. 29, 1963: vol. 55, p. 706).

[6] "qui simulat aut excludit conscius est de non seipso, sicut ad matrimonium requiritur tradito aut altero eodem modo accepto" (c. Serrano, Apr. 5, 1973: vol. 65, p. 325).

[7] "Actus positivus confundendus non est cum intentione, seu voluntate habituali, quae actum ipsum non determinat, neque consensum contrahentis ingreditur, ideoque consensum matrimonialem limitare non potest. Neque pariter haec positiva voluntas est voluntas proprie dicta interpretativa, quae nempe actualis fieret si de perpetuitate excludenda nupturiens cogitaret aut interrogaretur, sed reapse non existit nisi animi dispositione seu habitu, quia de hac positiva exclusione agens non cogitat. Neque nomine actus positivi haberi potest voluntas generica, etiam pluries manifestata, excludendi matrimonii indissolubilitatem, quia etiam voluntas ista recidit in habitum seu dispositionem animi, quae in concreto voluntatem non afficit matrimonium determinatum intendentem. Neque tandem iste actus positivus idem est ac mera hypothesis, seu mera praevisio, etiam cum certitudine, divertendi, nisi actui intellectus actus voluntatis accedat, quo divortium nedum praevideatur, sed positive intendatur" (c. Staffa, May 18, 1951: vol. 43, p. 385; cf. c. Anné, Nov. 8, 1963: vol. 55, pp. 765-766). "Constet necesse est contrahentem, qui simulasse consensum dicitur, tam firmam, absolutam et praevalentem intentionem excludendi vinculi perpetuitatem et prolem fovisse ut potius paratus esset celebrando matrimonio abrenunciandi quam illud inire indissolubile vel cum obligatione suscipiendi prolem" (c. Funghini, June 3, 1987: vol. 79, p. 351-352).

[8] ex. gr. "Protestantes, qui divortium admittunt, generatim valide contrahunt": c. Heard, Oct. 9, 1954: vol. 46, p. 722: cf. c. Brennan, Dec. 22, 1955: vol. 47, p. 895, etc.

[9] "Factum progenitae prolis indicium est, si procreatio non mero casui adscribi debet, sed responsabiliter fit, cuiusdam voluntatis ducendae vitae communionis in perpetuum" (c. Pompedda, May 19, 1986; unpublished). "Qui statim ac matrimonium contrahunt desiderant prolem suscipere, difficile putantur voluisse matrimonium ad tempus contrahere" (c. Colagiovanni, Oct. 18, 1986, vol. 78, p. 544).

[10] "Onus procreandae prolis saepe respuitur si reiicitur matrimonii perpetuitas, data intima et moraliter necesaria connexione communis vitae perseverantis cum prolis exsistentia. Unde, indissolubilitatis exclusio generatim secumfert boni prolis exclusionem, dum e contra stare potest boni prolis exclusio, quin excludatur matrimonii perpetuitas" (c. Lefebvre, July 8, 1961: Ephem. Iur. Can., 1962, p. 103).