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            If one considers marriage as one of the most natural of institutions, then consensual incapacity, for an adult endowed with sufficient use of reason, is a most unnatural phenomenon. An inability to appreciate the essential obligations of marriage, just as much as an inability to fulfil them, is an extraordinary disablement ("incapacitas quid extraordinarium haberi debet" Pompedda, M.: "Incapacitas Adsumendi Obligationes Matrimonii Essentiales" (Periodica LXXV (1986) 138-140), which can only occur in the case of a gravely handicapped person who, as a result, is deprived of the natural right to marry (c. 1058 - "All persons who are not prohibited by law can contract marriage" - states a human right, and sanctions the positive and broad juridic presumption in favour of the capacity for marriage of each adult person.

            It is therefore not surprising that the legislator, in c. 1095, has conditioned the norms governing consensual incapacity in two ways:

            a) it is only in relation to the essential rights/obligations of marriage that incapacity has juridical relevance;

            b) incapacity - if it is not simply the absence of sufficient use of reason - must derive from some seriously pathological condition.

            The first of these two points is specifically stated in nos. 2 & 3 of 1095, although the Code nowhere indicates which are these essential rights/obligations, and jurisprudence is still in the process of arriving at a clear consensus about this. The second point - that incapacity must derive from a serious pathology - is disputed by some; but I think we can show that it corresponds to the mind of the legislator, and to the importance of the natural rights involved. Let us consider each point in turn.

Incapacity must relate to the essential rights/obligations of marriage

            Matrimonial consensual capacity means capacity for entering a true conjugal relationship. Consensual incapacity means the incapacity to confer/accept the rights/obligations which are essential to the constitution of the conjugal covenant. Incapacity in law must therefore relate to the essential minimum juridical content of the "sese conjugaliter tradere", which c. 1057, 2 presents as the object of matrimonial consent.

            The most solid analyses, to my mind, identify this essential minimum juridical content with that of the three augustinian "bona", by which marriage is essentially characterized ("Prae oculis habendum est non quemlibet defectum sufficere ad matrimonii nullitatem declarandam, sed tantum debere esse, qui contrahentem liberae electionis peragendae vel trium bonorum essentialia onera assumendi incapacem reddat" (c. Pinto, July 8, 1974, SRRD, vol. 66, p. 501; cf. c. Pompedda, July 3, 1979, vol. 71, p. 388; c. Davino, Feb. 19, 1981, vol. 73, p. 95).). A person therefore is consensually incapable if, as regards the essential rights/obligations comprised in: a) fidelity to one spouse; b) participation in complementary conjugal procreativity; c) the assumption of a permanent conjugal bond, he or she is not able minimally to understand and evaluate one or other of these rights/obligations, and/or to fulfil them.

            But does c. 1101, 2, in distinguishing "marriage itself, some essential element or some essential property of marriage", not clearly suggest that some other elements are essential to marriage, besides its properties? This would seem to be so. Nonetheless neither doctrine nor jurisprudence are in agreement on what such other element(s) might be. In my view, insofar as the "bonum prolis" - in the sense of procreativity - is not classified as an essential matrimonial property (as I hold it should (cf. C. Burke: "The Bonum Coniugum and the Bonum Prolis; Ends or Properties of Marriage?": The Jurist, 49 (1989):2, pp. 709-713. "Il «Bonum Coniugum» e il «Bonum Prolis»: fini o proprietà del matrimonio?": Apollinaris, LXII (1990), pp. 566-570.)), it is clearly an essential element of marriage.

            Could or should the "communitas vitae" not be considered an "essential element" of marriage, giving rise to essential rights/obligations to be exchanged in consent? As is well known, the expression "ius ad communitatem vitae" was not accepted in the draft for c. 1101, 2; in the new Code it is not used anywhere. The reasons seem to be both the difficulty of defining it juridically, and its evident redundancy. The "community of life" in question is the "community of conjugal life"; thus, it is not an element of marriage, but marriage itself, being synonymous with or included in the "totius vitae consortium" of c. 1055 (cf. Communicationes 15 (1983) 233-234.).

            The well-known Sentence of Feb 25, 1969, c. Anné, already dwelt on the difficulty of specifying what are the essential elements of the "communio vitae" (SRRD, vol. 61, p. 185.). The intervening twenty years have served to underline this difficulty. The jurisprudential attempts to show how the "communio vitae" is an independent essential element have failed to make any solid case. To my mind, further proposition of the case - in the absence of new and grave arguments - is hard to justify.

            Further elements of human interpersonal relationship, even in a more peculiarly conjugal context (e.g. capacity for harmonious policy-making in the matter of education of children) are desirable, but not essential. This, like many other points, is undoubtedly an "aliquod elementum" of marriage; but it is not an "elementum essentiale".

            The essential obligations to be accepted necessarily relate to the non-changing essence of marriage: the permanent, exclusive and open-to-life union of two persons of opposite sex. Now this union of persons involves two evolving personalities. Therefore we can add that by consent a person necessarily accepts the possible evolutions of the other, "for better or for worse"... Concretely, the development of any form of bad health, including supervening mental illness, enters into the possibilities which a spouse accepts in consenting to marriage.

            One can ask if the ends of marriage are the object of its essential obligations. It seems to me that if they are, it is only mediately, or dependently on the obligations contained in the "bona". This, I think, is clear enough in relation to procreation. There is an essential obligation to enter a procreative, open-to-life, union; but there is no essential obligation to actually procreate.

            Re the "bonum coniugum": as I understand it, this consists fundamentally in the maturing of the spouses for the ultimate purpose of life (cf. C. Burke, op. cit.: The Jurist, p. 706-708; Apollinaris, pp. 562-563.). It is precisely to this that marriage, when lived according to its essential properties, tends.

Incapacity must correspond to a grave pathology

            While one at times comes across careless statements which would seem to refer incapacity just to the cases envisaged in n. 3 of c. 1095 and, more importantly, to limit the requirement of clear psychopathology to these cases alone, it seems clear that a defect of discretion, no less than an "incapacity assumendi", invalidates only if it results from some diagnosable pathological condition (cf. c. Bruno, Feb. 22, 1980 (vol. 72, p. 128); c. Pompedda, Dec. 16, 1985 (vol. 77, p. 586).).

            The fact is of course that the whole of c. 1095 is about psychic incapacity (cf. c. Boccafola, Sent. June 23, 1988, n. 6 (Ius Ecclesiae, II, 1 (1990), p. 143).); and the Pope's 1987 and 1988 discourses to the Rota, without distinguishing nos. 2 or 3 of the canon, insist that incapacity must be the result of a grave anomaly affecting man's spiritual faculties - mind or will. The Pope's words leave no doubt that, prescinding from technical or medical classifications, only a serious disorder or pathology of the human «psyche» can invalidate consent. "An argument for real incapacity can be entertained only in the presence of a serious form of anomaly which, however one chooses to define it, must substantially undermine the capacity of understanding and/or of willing of the contracting party" (Address to the Roman Rota, Feb. 5, 1987 (AAS LXXIX (1987) 1457).). It should of course be added that this authentic interpretation reconfirms mainstream principles already established in rotal jurisprudence [1].

            In the light of the Pope's discourses, I would suggest that the following guidelines can be legitimately proposed:

            a) Ecclesiastical tribunals should attach relatively little importance to the actual terminology used by an expert or experts to describe an anomalous psychological condition [2]. This is surely the clear force of the Pope's expression: "however one chooses to define it".

            b) Only a grave psychic anomaly or psychopathology, however defined, incapacitates; and in order to be grave it "must substantially undermine the capacity of understanding and/or of willing of the contracting party". It seems to me that, in the midst of the many schools of thought characterizing modern psychiatry and clinical psychology, the Pope is here trying to guide ecclesiastical judges to seek a more juridic notion of grave (incapacitating) psychopathology, such that jurisprudence can recognize and refer to, independently of the terminology which practitioners may use to describe a particular condition.

            c) It is primarily and essentially the Acts, and not the "peritia", that must provide the juridic proof of the presence of a grave psychopathology causing consensual incapacity. It is the Judge's competence and responsibility to weigh the Acts, to see if they indicate the presence of an anomaly that substantially undermined the person's mind or will. To do this is the very essence of his judicial mission. The expert opinions, if they have been called for, have, according to c. 1579, to be considered simply as one more -qualified - element of the instruction of the case.

            d) I am not suggesting that the judge can always dispense with the services of a peritus; simply that he has to be more judicial in invoking and assessing them. Here it is important to remember that not every case proposed on grounds of incapacity is automatically accepted; the judge can and should reject the libellus, if there seems to be no foundation whatsoever to the grounds alleged (c. 1505, § 2, 4º) (cf. c. Egan, March 29, 1984: ARRTD, vol. 76, p. 210.). But even when the libellus is accepted and the case proceeds, if nothing is produced in evidence to suggest a grave psychic anomaly, the Judge (or Judges) can decide not to seek an expert's opinion, for it is not necessary. Only if the Judge or Judges are in a state of serious doubt about the matter, or incline towards a declaration of nullity, should the services of a peritus be sought (c. 1680).

            e) An Affirmative decision on consensual incapacity normally requires a (supporting) "peritia": because some "serious psychic anomaly" (in the Pope's words) must be shown to have been present. However, a Negative decision does not necessarily require the backing of a "peritia".

            f) Therefore while a Tribunal can give a Negative decision, against the weight of expert opinion (cf. cc. 1579, § 2 and 1680), the same cannot be said of the converse - i.e. a declaration of nullity given when the expert opinion provides no diagnosis of any grave psychic anomaly.

            g) Finally, if there is clear contradiction between various expert opinions, the Judge's position becomes more difficult. He may be able to show that one [set of] opinion[s] finds ample support in the Acts, while the other finds none; but this seems improbable. In practice, such a contradiction between experts would seem to induce a state of doubt such as to make recourse to c. 1060 obligatory.

Canon 1095 offers "easy" grounds?

            Some judges and advocates seem to regard consensual incapacity under c. 1095 as offering "easy" grounds on which to handle a case for nullity. This has always surprised me.

            Arriving at moral certainty about the nullity of a marriage on the grounds on defective consent is never easy, for it means a present pronouncement on the validity of an internal act placed five, ten or twenty years ago. The judicial evaluation of external facts always offers difficulties; but if the fact to be established is internal, the difficulties are immensely increased. The proof of simulation, for instance - as any judge of experience knows - , is seldom easy. I would maintain that, from any serious juridic viewpoint, the proof of consensual incapacity must necessarily result much harder still. When a case is tried on grounds of simulation, an affirmative decision depends on the proof of a deliberate exclusion by one of the parties of some essential property of marriage. This proof normally and naturally hinges on the "confessio simulantis", since the alleged simulator is the only one who can truly know his or her own actual mind at the moment of consent. A judgment in a case of simulation is a decision about what a person really intended, on the basis of his or her statements and in the light of the rest of the evidence [11].

            Now the case of consensual incapacity has some points of similarity with simulation, but other very striking points of dissimilarity. Under c. 1095 too, the Court has, after the passage of perhaps many years, to judge an internal mental situation at a specific moment in the past. In other words, it has to reach back in time so as to establish with moral certainty what really went on inside a person's psyche at the moment of consent. That is the point of similarity. The point of difference however is that the Court has to establish not what the party actually intended to choose (a true marriage or not), but the fact that he was incapable of choosing what he actually intended. The simulator is alleged to have intended a non-marriage. The incapable person is alleged to have intended a true marriage; indeed to have been convinced that he or she was entering a true marriage, but, for reasons of which he or she was perhaps totally unconscious, to have been incapable of so doing.

            If seriously evaluated therefore from a juridic viewpoint, the grounds of consensual incapacity offer notable difficulties, and should be considered anything but "easy" [3]. It is different of course if there exists a clear pre-marriage medical history of psychic anomaly, involving some form of psychiatric treatment, or if the party, shortly after the marriage, begins to show symptoms of some grave psychopathology. If neither of these conditions is fulfilled, it is hard to see how a judge can arrive at moral certainty about the existence, ten or twenty years ago, of such an abnormal disablement as incapacity to consent to marriage ("Difficillime, morali cum certitudine, constare potest contrahentem iam tempore nuptiarum incapacem esse exsequendi officia substantialia coniugalia, nisi iam tempore celebrati matrimonii ille laboraverit gravi omnino nevrosi, in animo iam altissisimis inhaerente radicibus" (c. Anné, Apr. 15, 1975: vol. 67, p. 291).).

Pathology and normality

            Disorder can only be understood and studied in reference to order. And pathology (physiological or psychic abnormality) can only be understood and discussed in reference to normality. It is no doubt an exaggeration to maintain that normality is an invention of modern psychology! But there is no exaggeration in suggesting that the concept of normality proposed by most modern psychiatry and clinical psychology is not acceptable to christian anthropology. Pope John Paul II reminded the Rota in 1988: "It is well known that the experts themselves, in the fields of psychological and psychiatric sciences, find difficulty in defining the concept of normality, in a way that satisfies everyone. In any case, whatever the definition given by the psychological and psychiatric sciences, it must always be verified in the light of the principles of christian anthropology..." For the canonist, who works from this christian standpoint, the Pope continued, "the concept of normality, that is of the normal human condition in this world, also includes moderate forms of psychological difficulty" (AAS LXXX (1988), 1180-1181.).

            Modern psychiatry has studied personality defects in depth, and tends to suggest that the norm of the human personality is to be free from any of these defects. Christianity knows that such a norm is unreal, on earth. For the christian, "normal" personalities include those that are slightly or moderately imperfect; only those that are gravely defective are so abnormal as to be incapable of marital consent. To be somewhat abnormal, therefore, necessarily falls within the christian "norm of normality" [4].

            So I cannot agree with Bersini when he includes, under 1095, 2, "the whole range of psychic disturbances which are on the border between what is pathological and what is normal" (op. cit., p. 94.). The area between what is easily classified as "normal" and what is necessarily classified as "gravely pathological", is huge; and none of those who fall within it can be deprived of the right to marry. In other words, the number of "normally abnormal" people is legion; and it would be a serious violation of justice to deprive them of their human and ecclesial right to marry.

            Much modern psychiatry tends to assume that if abnormality is proved, it follows that it was always there [5]. Not being a psychiatrist, I lack the competence to know what solid scientific basis there may be to this opinion. However, from the viewpoint of christian anthropology, I see no objection to this thesis, provided one starts by admitting that all of us are to some extent abnormal (as a consequence of that "constitutional" anomaly that Christianity calls original sin.). What does not follow is that a mild abnormality must inevitably develop into a grave one; and less still that a grave supervening abnormality shows that the (mild) abnormality existing at consent constituted an incapacity.

Relative or absolute incapacity?

            The first thing to bear in mind in dealing with this issue is that there is a certain ambiguity in the very term "relative" incapacity.

            a) "Relative incapacity" normally evokes the thesis according to which capacity for marriage must be judged not just in the abstract, in relation to marriage in itself, but in the concrete, in relation to the union with the particular spouse chosen.

            b) However one could also speak of relative incapacity, in the sense of "partial" or even temporal incapacity. Then one could ask: is there such a thing as partial incapacity which invalidates? Or must invalidating incapacity be absolute or total, also in terms of duration?

            The idea of relative incapacity, in the first sense, is supported by some judges. At the Rotal level its main proponent has been Msgr. Serrano, but it has found very little support among his colleagues [6]. In line with the thesis that marriage is essentially an interpersonal affair, he proposes that, in order to determine capacity, it is not enough to examine the personalities of the parties, each in isolation; one must primarily examine their capacity for establishing the interpersonal relationship essential to marriage.

            I find no solid basis in law, or in christian theology or anthropology, to justify this theory. Consensual incapacity is incapacity relative to the objective rights/obligations of marriage in their juridic essence. It is incapacity regarding marriage considered essentially, in itself; not existentially, insofar as concerns the concrete partner chosen [7]. Consensual incapacity relates to marriage, not to spouse. The incapacity is person-to-institution, not person-to-person [8].

            The interpersonality theory argues basically from the collapse of the marriage "in facto esse" to the invalidity of the marriage "in fieri". If, in time, a spouse proves capable of a fulfilled marriage - in its interpersonal aspect - , he had consensual capacity from the beginning; if he does not, he had not. The criterion of proof used is the result: failed marriage shows incapacity; successful marriage shows capacity. A bond is created; if it works, fine; if not, it can be dissolved. The presuppositions here lead not to annulment, but to divorce. A further reflection can make this clearer. While it is at least theoretically possible to think up pre-marriage methods of verifying that the spouses-to-be have adequate discretion of judgment, only an "a posteriori" verification could demonstrate relative incapacity. And this, in the last analysis, would mean canonizing a pastoral praxis of "trial marriages".

            The "interpersonality" theory of marriage suffers from a failure to specify what it is that makes up the distinctive essence of conjugal interpersonality. The relative incapacity theory suffers similarly. Insofar as it fails to determine which are the essential rights/obligations, distinctive to interpersonality, it is inadequate to meet the requirements of c. 1095.

            Of course the validity of marital consent demands a capacity for a particular type of relationship: the conjugal relationship characterized by obligations - exclusiveness, procreativity, permanence - towards a spouse, whoever he or she may be. It is capacity for a married relationship; not for relationship with a particular type of person. To determine capacity according to the type of spouse one marries, is to subject the bond to compatibility [12]. In the instruction of a case, therefore, one must reject as leading (and therefore unjudicial and contrary to procedural norms: cf. c. 1564) questions at times asked of a court expert regarding "personality traits" observed in the parties. For instance: "Are/were they of such a nature as to be destructive of the interpersonal relationship which is essential to married life?".

            Relative incapacity in fact simply means incompatibility, which is not an acceptable concept in Christian anthropology. "Incompatibility" seems to me undistinguishable from "moral impossibility", which in turn simply means the "extreme difficulty" which a person, given his or her character, experiences in doing or observing something. In a christian view, certain things can readily be allowed to offer extreme difficulty, but not to be absolutely impossible. No confessor accepts the plea: "But I can't possibly forgive him or her". - You can, with God's help, if you want... After a deep crisis in married life, it may not be reasonable to ask that conjugal life together be maintained. It is not unreasonable, however, to ask that the married bond be respected; nor is it impossible to do so.

            Psychiatrists themselves at times express scepticism about the validity of the concept of basic incompatibility. In a rotal case of 1975, we read the reply of a psychiatrist: "Your second question involves the concept of 'essential incompatibility'. Do you mean by this, basic, unchangeable and irrevocable incompatibility? If yes, I am not sure it exists" (c. Raad, Apr. 14, 1974 (vol. 67, p. 258).

            We could here consider the suggestion that discretion of judgment involves the correct "objective and subjective" evaluation of the rights and duties to be mutually given and received (where objective evaluation refers to those rights and duties in themselves, while subjective evaluation refers to the understanding with which the parties relate these same rights and duties to their own concrete marriage). There is no basis for this in Code: canon 1095 speaks of discretion regarding the essential rights/obligations of marriage; not of this particular marriage. In any case, "objective-subjective" seem to be used in improper contrast here. To be correct or sufficient, the evaluation made by the "subject" (the party) must have a real "objectivity" to it, in the sense that it must correspond to a proper (however minimal) understanding of essential married obligations, as they really exist in themselves.

            b) Now let us turn to the other ways in which "relative" may be applied to incapacity; i.e. when used in the sense of "temporary" or even "partial". While such use may be said to be improper, it is not infrequent; and it certainly affects the terms of the discussion.

            Rotal opinion is divided as to whether temporary incapacity invalidates. In considering the question, one must clearly distinguish 1095, 2 from 1095, 3. Consensual incapacity under c. 1095, 2 is to be judged exclusively in relation to the moment of consent itself: was the person suffering from some psychic anomaly so serious that his or her discretionary judgment - at that time - about the essential rights/obligations of marriage was gravely defective? If this is in fact proved, nothing would seem to exclude the possibility that the party may later overcome that anomaly, and so acquire sufficient discretion of judgment. Now the "incapacitas assumendi" must similarly be present at the moment of consent; but, unlike the grave lack of discretion, it is of its nature projected towards the future, being a present incapacity to fulfill future obligations. The proof of the "incapacitas assumendi", therefore, depends far more on "a posteriori" deductions. If the person, during conjugal life, never fulfilled some essential obligation, there may be some basis for concluding that he or she was incapable of so doing. However, if the person did fulfil the essential obligations (however minimally or however partially), then it is logically, morally and judicially impossible to conclude that he or she was incapable of such fulfillment at the moment of consent.

            There is a sizeable body of jurisprudence which holds that incapacity must be perpetual or permanent; i.e. must not only be actually present at the moment of consent, but must offer no hope of remedy or cure by ordinary and licit means [9]. This view seems preferable to me.

            It is obvious that consent is either absolutely valid or else it is not valid at all; there is no such thing as a "relatively" or "partially" valid consent. Similarly, the "incapacitas assumendi" is either absolute - also in terms of time - or else it is not true incapacity [10]. On the theoretical level, just as I am capable of undertaking today what I can fulfil today - although I may not be able to fulfil it tomorrow -, so, as Sanchez points out, it is clear that I am capable of undertaking today what I cannot fulfil today, but may be able to fulfil tomorrow ("Qui enim in praesenti non est solvendo, cum tamen sit spes fore in futurum, potest ad solvendum obligari" (S. Sanchez, De sancto matrimonii sacramento, lib. VII, disp. 92, n. 2).

            The matter is perhaps more easily clarified by going from theory to the test of practical cases. What instance can be adduced of a true incapacity that invalidates, even though the person subsequently "becomes" capable? Nymphomania is an often-given example. My reasons for disagreeing with the view that the original consent of a nymphomanic was invalid, even though her pathological condition was cured after the marriage, are eminently pragmatic. The subsequent cure seems to me to disprove the adequacy or reliability of the diagnostic or other "proof" of an authentic condition of sexual hyperaesthesia at the time of the marriage. It then becomes juridically impossible to attain moral certitude that the person could not ("non valebat") assume the essential obligations of marriage.

            It would seem that in such a case, the most that can be proved is that for a time she did not actually fulfil an essential obligation; but later - for whatever reason - began in fact to fulfil it. A certain degree of pre-marriage (or post-marriage) sexual laxity was perhaps correctly proved; what was incorrectly diagnosed or assumed was the irresistibility, at the time of consent, of the impulse towards promiscuity (which is of the essence of nymphomania). In other words, what was judged to be an incapacity was simply a difficulty which the person, over a certain period (including the moment of consent), did not wish to (or perhaps actually felt could not) overcome; but later, by putting more effort and making better use of the means (including no doubt the supernatural means) was able to overcome in fact (Here we can again recall the words of John Paul II to the Rota, in 1987: "For the canonist the principle is clear that incapacity alone, and not just difficulty, in giving consent and achieving a true community of life and love, renders marriage null. Besides, the failure of the conjugal union is never in itself a proof which shows such incapacity on the part of the contractting parties, who may have neglected, or used badly, the natural or supernatural means at their disposal": AAS 79 1457). At all events, it seems to me that, whatever about a plea of exclusion of the "bonum fidei" in such a case, a plea of consensual incapacity does not hold.

            Temporary incapacity does not invalidate; therefore neither does possible future incapacity. If a person has present consensual capacity - sufficient knowledge and will in order to make a free and real choice - then the marriage is valid. Nor is its validity destroyed by some supervening factor that makes the maintenance of the conjugal consortium morally impossible. For consensual incapacity one has to be actually incapable, there and then, of granting essential rights and/or undertaking essential obligations; the latent (or patent) possibility that the person may become incapable, in several years to come, cannot invalidate. Otherwise, no one could validly marry a person with a brain tumour who in five years time will be predictably insane; or (if one accepts that the education of children is an essential obligation) no one could marry someone about to suffer capital punishment, who will never be able to fulfil his or her responsibility for the education of a child that may be born of the brief marital union.

Pathological conditions admit of degrees

            As we have mentioned, the term "relative" is at times also used to signify "partial", as when we say a person is relatively recovered from an illness. Whatever the propriety of the usage, it could suggest a finer analysis not only of "Don Juanism" (satyriasis) or nymphomania, but of certain other conditions such as homosexuality which is also a frequent grounds for incapacity under c. 1095. I sense a growing tendency, in some Tribunals, to consider that such conditions are of necessity absolutely incapacitating; and feel we should reflect that this is not always so.

            Two main things, as I see it, have to be considered in such cases. First of all, these conditions are undoubtedly obstacles to a smooth development of married life. Secondly, they all admit of degrees (cf. c. Agustoni, March 23, 1982 (vol. 74, p. 127).

            Many homosexuals have also certain heterosexual tendencies and capacities; in that sense they are not absolutely, but only partially or "relatively", homosexual. Similarly, a person can be sexually weak or loose, and yet not be "absolutely" promiscuous. We can certainly say that such persons are "relatively" incapacitated for married life. But then we have to remember our basic christian anthropology: we are all relatively incapacitated for life. "Relative" incapacity, in this sense, cannot invalidate matrimonial consent.

            To my mind, the mere proof that a person, at the time of consent, suffered some form of homosexuality or sexual hyperaestesia, is not sufficient to demonstrate incapacity. It has to be shown that their condition was so grave as to absolutely incapacitate them with regard to a minimum fulfillment of the essential rights/obligations of marriage.

            The contrary line - i.e. the over-readiness to find an incapacity in any form or degree of sexual abnormality - seems to risk creating a policy of unchristian discrimination against broad categories of persons, threatening to bar those who are sexually weak from any possibility of marriage. No one who believes that human and ecclesial rights must be universally respected, can look on such a possibility with indifference.

            Neither from the viewpoint of moral theology nor of canon law, have I ever liked the term "remedium concupiscentiae", which was traditionally used to describe a secondary end of marriage. The concept, however, is not altogether irrelevant. If we do not act with the greatest care in the matter under discussion, we can end up effectively excluding from the christian community persons who find particular difficulty in the area of sex, and denying them access precisely to the Sacrament where they could well find the graces necessary for salvation.

Some theological-pastoral reflections

            Let me end with some brief remarks regarding possible consequences of excessive or abusive recourse to c. 1095. There are said to be areas today where Catholics can get an annulment as easily as Protestants get a divorce. Whatever the truth of this, I would like to suggest that the parallel - annulment/divorce - needs to be subjected to proper analysis not only from the theological, but also from the pastoral, point of view.

            Much has been written on the effect of easy divorce on the stability of marriage; easy divorce leads to poorly prepared marriages, which in turn are more likely to collapse and end in divorce. The same, it might seem, could be said of easy annulment; and yet I think that there is something even more serious which needs saying.

            Non-Catholics do not normally question the validity of the marriage that they consider terminated by divorce. While those who get divorced may indeed doubt the wisdom of the original decision to marry, they seldom if ever think that their decision revealed or was based on a psychopathological condition. Their children suffer from the divorce; rarely however do they conclude that their parents were abnormal, and it never enters their mind to think that they were never truly husband and wife...

            Are we reflecting on how different the situation is for Catholics when annulment on grounds of consensual incapacity comes to be regarded as an easy and almost automatic process? Two people have lived together for 5, 10 or 20 years in a non-marital or pseudo-marital relationship; their children are strictly (if not technically) illegitimate (my parents were never really husband and wife); and one or both of the parties is marked as having been pathologically abnormal or immature, at the time of the wedding...

            I wonder if our clergy at large are aware of the ecclesial situation that a policy of easy annulments is creating. Annulment has been called the "Catholic divorce". But it is not. If it is not justified - i.e. if it does not correspond to truth and justice - it is much worse than divorce. Consider just this point. A Protestant can in good faith believe (and normally does believe) that a true marriage can be dissolved by divorce. A Catholic cannot believe that a true marriage can be dissolved by an annulment. A Protestant pastor therefore can in perfectly good faith prepare a couple for marriage whom he senses are perhaps not fully mature for the undertaking. He can say to himself (and for that matter, they can say to one another): if it doesn't work out, there is always the possibility of divorce. They believe they are entering a perfectly good marriage; and that their eventual divorce, if it were to come about, would not in any way mean that they had not been married.

            A Catholic pastor cannot in good faith prepare a couple, in similar conditions of doubtful discretion or capacity, for a marriage ceremony, thinking - or worse still, telling them - if it doesn't work out, you can always get an annulment. For that is to steer, or let them drift, into a possible non-marriage, where sacramental grace may be lacking to them, and the possibilities of failure immensely multiplied.

Personalism or individualism?

            It is commonplace to say that the new Code, in its approach to marriage, reflects the personalism of Vatican II. While to me this is unquestionably true as regards canons such as 1055 and 1057, I feel one ought to be more nuanced in affirming, as is often done, that the greater importance attached nowadays to marital consent is another expression of this personalism. The fact is that few things have been more constant throughout the history of matrimonial law, than the preeminent position given to personal consent. What has particularly marked recent decades is a tendency to increase the requirements for consent, thereby of course also enlarging the grounds for consensual incapacity.

            One can certainly interpret this tendency in personalist terms, arguing that to be capable of the conjugal self-donation in a life-long community, in which the Church now sees the essence of marriage, one must logically possess a greater degree of self-awareness, and of freedom in self-possession, than were required in the past (cf. for instance, Bersini, F.: Il Nuovo Diritto Canonico Matrimoniale, Turin, 1985, p. 92). The argument seems valid enough when applied to certain innovations to be found in the Chapter on Matrimonial Consent (e.g. c. 1098, on dolus). I am not however equally sure of its validity if it is unqualifiedly applied to the most notable of the new canons: c. 1095.

            Canon 1095 is certainly one of the most important of the canons newly incorporated into the Code, and its proper and just application clearly serves to protect fundamental rights of the faithful. Nevertheless, much of the background to this canon, in doctrine and jurisprudence, seems to me to have been influenced by other trends besides christian personalism.

            In particular, I feel that the abusive application of canon 1095, where this occurs, corresponds not to any true christian personalism, but rather to the influence of secular individualism and the psychological "selfism" so present in contemporary non-christian values. In this context, it should not be forgotten that one of the strongest characteristics of individualism is a basic suspicion or hostility towards any lasting bond. The concept of a permanent and irrevocable choice is foreign to individualism, since it sees in it a menace to personal autonomy. Christianity, in contrast, sees in the permanent commitment to a genuine value a major expression of the dignity and freedom of the human person, as well as an essential condition for human maturing.

            While time does not permit any enlarging on this here, I would at least like to draw attention to the possibility that behind the interpretation which some ecclesiastical judges and lawyers make of this canon, there is perhaps not so much a greater appreciation of the human person, as a greater scepticism about the person's ability to make a free and responsible choice of something so natural as marriage, with a concomitant pessimism about his ability to stick to his choices. Pope John Paul II, in his address to the Roman Rota in 1987, warned against an "unwarranted over-estimating of the notion of matrimonial consent" (AAS LXXIX (1987) 1183), which, rather than testifying to a deeper awareness of human dignity, could reflect an underlying diffidence regarding the maturity of the human subject and/or his or her capacity of self-determination.

            Arguments can certainly be made that it was urgent to seek more or broader grounds for questioning the validity of consent in certain cases not properly covered under the former law. However, to be satisfied to apply the new norms, superficially understood, might eventually produce a negative ecclesial balance. A positive balance depends on getting people to deepen their awareness that matrimonial consent is one of the most natural exercises of human freedom, and therefore it is human nature to tend to the conjugal commitment, not to fear it. Achieving this is of course not a strictly canonical task, but canonists would do well to bear it in mind.

NOTES

[1] Many rotal Sentences, prior to the Pope's addresses, had expressed the essence of these principles clearly. "In causis matrimonialibus de invaliditate consensus ob quamdam mentis conditionem, graviter morbosam... haud necesse est ut perspicue definiatur species ultima morbi mentalis quo nupturiens laborat, dummodo de ipsa gravi mentis perturbatione morbosa plane constet" (c. Anné, March 30, 1971: vol. 63, p. 220). "Incapacitas ex gravi anomalia oritur vel psychica vel sexualis" (c. Pinto, Oct. 28, 1976: vol. 68, p. 387). Psychological disturbances "cum certae tamen sint et graviores... in moralem certitudinem de irrito matrimonio ducere queunt" (c. Serrano, March 4, 1977: vol. 69, p. 81). "Patet igitur ad praedictam incapacitatem agnoscendam requiri aut gravem psychicum defectum aut gravem psychopathiam" (c. Lefebvre, Jan. 21, 1978: vol. 70, p. 48). "Iuxta probatam N. F. iurisprudentiam solummodo gravem psychopathiam praepedire [potest] discretionem iudicii matrimonio proportionatam" (c. Di Felice, March 14, 1979: vol. 71, p. 97). Cfr. c. Bruno, Apr. 18, 1980 (vol. 72, p. 275; cf. p. 128). c. Parisella, Nov. 27, 1980 (vol. 72, p. 740); c. Egan, Jan. 12, 1984 (vol. 76, p. 3); c. Stankiewicz, March 11, 1980 (vol. 72, p. 170); March 22, 1984, (vol. 76, pp. 175-176); c. Masala, June 19, 1984 (ib., p. 359-360); c. Giannecchini, June 26, 1984 (ib., p. 393); c. Pompedda, Nov. 25, 1980 (vol. 72, p. 732); Dec. 16, 1985 (vol. 77, p. 586), etc. It is interesting to go back 60 years and find the same principle of the need for a grave condition stressed: "Neque ad excludendam libertatem satis est ostendere hominem infirmitate aliqua mentis laborare, sed probare oportet consensum, attenta gravitate morbi, praestari haud potuisse" (c. Massimi, Nov. 20, 1931, vol. 23, p. 464).

[2] While psychiatrists are constantly seeking a standard and stable diagnostic terminology, they cannot yet be said to have achieved it. As the two Sentences coram Anné and Serrano which we have just quoted, state: "haud necesse est ut perspicue definiatur species ultima morbi mentalis quo nupturiens laborat, dummodo de ipsa gravi mentis perturbatione morbosa plane constet" (vol. 63, p. 220). "...de nomine adsignando perturbationibus animi: quae cum certae tamen sint et graviores, seposita quaestione de diagnosi praeciso ac ooncordi termino expressa, in moralem certitudinem de irrito matrimonio ducere queunt" (vol. 69, p. 81); cf. c. Fiore, Oct. 7, 1978 (vol. 70, p. 416, n. 6).

[3] Perhaps for this reason, Italian advocates - with their characteristic juridic sense - tend to avoid these grounds; and prefer the grounds of simulation, when, as so often happens today, the case warrants it.

[4] "ad valide contrahendum perfecta sanitas psychica non requiritur... cum nullus homo a levibus saltem defectibus personalitatis immunis evadat" (c. Bruno, December 17, 1982: ARRTD, vol. 74, p. 651).

[5] "Abnormal personalities show a strictly constitutional pattern. People do not turn into abnormal personalities, but are conceived, born, live and die that way. It is a matter of something constitutional, that is, of a way of being that is innate in the subject": C. Ferrio, Trattato di psichiatria clinica e forense, Turin 1970, vol. I, p. 522.

[6] Msgr. Serrano himself, referring again to the theory in a recent Judgment (Lafayatten. May 26, 1988, n. 4.), cites only some Sentences coram Pinto as supportive of the view. Rotal Sentences which reject the concept include: c. Raad, Apr. 14, 1975 (vol. 69, p. 260); c. Di Felice, Nov. 12, 1977 (vol. 69, p. 453); c. Lefebvre, Feb. 4, 1978; c. Agustoni, Feb 20, 1979; c. Parisella, March 15, 1979; c. Bruno, Feb. 22, 1980 (vol. 72, p. 127); c. Fiore, May 27, 1981 (vol. 73, pp. 314-317); c. Pompedda, Feb. 19, 1982 (vol. 74, p. 90); c. Egan, July 19, 1984 (vol. 76, p. 471); c. Stankiewicz, Oct. 24, 1985, (vol. 77, pp. 448ss); c. Ragni, May 24, 1988, n. 5, etc.

[7] Mons. Pinto claims that the discretion necessary for validity means deliberation about the essential rights/obligations "non in abstracto sed in casu concreto considerata" (Nov. 22, 1985: vol. 77, p. 538). I would not agree with this. Imprudence or irresponsibility in marrying a particular person cannot be raised to the level of an invalidating lack of discretion about the essential obligations of marriage. cf. c. Colagiovanni, Dec. 11, 1985 (vol. 77, p. 571).

[8] "sicuti connubii natura a voluntate hominum non pendet, ita pariter iura-obligationes essentialia matrimonii suam habent obiectivam vim et exsistentiam. Non igitur agendi et essendi ratio personarum moralem bonitatem et validitatem iuridicam confert actibus humanis, sed istorum conformitas cum ordine morali-iuridico obiectivo. Exinde, etiam capacitas eiusmodi... refertur ac referri debet non de subiecto ad subiectum, sed obiective ad matrimonii obligationes essentiales" (c. Pompedda, Feb. 19, 1982, loc. cit.).

[9] cf. Sent. c. Pinto, Mar. 18, 1971 (vol. 63, pp. 187-188), July 15, 1977 (vol. 69, p. 405), Feb. 12, 1982 (vol. 74, pp. 68-69), Dec. 3, 1982 (ib. p. 571); c. Lefebvre, Jan. 31, 1976 (vol. 68, p. 41); c. Parisella, Feb. 23, 1978 (vol. 70, p. 75); c. Ferraro, Nov. 28, 1978, n. 10; c. Agustoni, Feb. 20, 1979, n. 13; c. Bruno, March 30, 1979 (vol. 71, p. 121); c. Stankiewicz, Dec. 11, 1979 (ib. p. 552); c. Egan, Nov. 10, 1983 (vol. 75, p. 608); c. De Lanversin, Feb. 8, 1984 (vol. 76, p. 91); c. Jarawan, June 19, 1984, (ib. p. 372); c. Doran, July 1, 1988, n. 11 (in Ius Ecclesiae, II, 1 (1990), p. 163); c. Giannecchini, Dec. 20, 1988, n. 3; c. Palestro, Jan. 17, 1990, n. 7; June 6, 1990, n. 6; c. Ragni, May 2, 1989, n. 8, etc.

[10] "vitium hoc quod supponitur antecedens, requiritur etiam necessario perpetuum..., dum vere naturaliter incapax dici nequeat is, cui remanet sanationis possibilitas" (c. Lefebvre, Jan. 31, 1976: ARRTD, vol. 68, p. 41).

[11] It is true that a decision for nullity can be given even in the absence of the "confessio simulantis", or even despite the firm denial by the party of any simulation, provided that the rest of the evidence points overwhelmingly to simulation. But, even in this fairly unusual case, the fact remains that the judge is deciding, on the basis of the evidence, what the real mind of the party was at the time of the marriage.

[12] "Rotalis iurisprudentia docet agi debere de vera incapacitate neque tantummodo de mera difficultate, atque eandem verificari dumtaxat in casibus morborum psychicorum at non sufficere simplicem characteris incompatibilitatem" (c. Ewers, Apr. 4, 1981: vol. 73, p. 221).