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            "There is no handy rule of thumb", a Judge observed in a Sentence that came before me recently, "for determining which type of lack of discretion or of incapacity invalidates marital consent". He was of course referring to c. 1095, but I felt he seemed unduly at sea about its interpretation. Canon 1095 itself gives a plain rule: such disabilities can invalidate only if they relate to the essential rights/obligations of marriage. In fact, according to n. 2 of the canon, contractual or consensual incapacity is to be imputed to those "who suffer from grave lack of discretion of judgment concerning essential matrimonial rights and duties (officia)"; and, according to n. 3, to those "who are not capable of assuming the essential obligations (obligationes) of matrimony..."

            This is surely a clear rule for the interpretation and application of the canon [1]. What the Judge in question could more reasonably have complained about is the fact that while the canon speaks of the "essential" [rights and] duties or obligations of matrimony, it does not specify which matrimonial duties are actually to be considered essential. This lacuna is evidently meant to be filled in by doctrine and in particular by jurisprudence. As Pope John Paul II said to the Rota shortly after the promulgation of the new Code: "In the new Code... there are canons of special importance for matrimonial law which have of necessity been formulated in a generic way and await further determination, to which solid rotal jurisprudence above all can validly contribute. I am thinking, for example, of the determination of the "defectus gravis discretionis iudicii", of the "officia matrimonialia essentialia", of the "obligationes matrimonii essentiales" to which can. 1095 refers..." (Address to the Roman Rota, Jan. 26, 1984: AAS 76 (1984) 648).

            It would be premature to say that an overall consensus on the matter has emerged (even on the rotal level), and this article simply seeks to be one further contribution to an on-going process and study.

            It should scarcely be necessary to point out that the canon is not concerned with merely moral rights (cf. J. Hervada: "Obligaciones esenciales del matrimonio", in Incapacidad Consensual para las Obligaciones Matrimoniales, Pamplona, 1991, p. 24), i.e. rights to which a person has a moral claim in conscience, but to which the law gives no special recognition or protection (for instance, the rights/obligations of love and respect between parents and children). Its concern is juridic rights/obligations: those which are due in justice and which can be invoked before the courts of law.

            Further, not all the juridic rights or obligations of marriage, even if important, are necessarily essential in the sense envisaged by the canon. Property rights are certainly important, and could be the object of a law suit between the spouses; but they are not among the essential rights that canon 1095 refers to. In our context, the essential rights/obligations must be those which so fundamentally touch the essence of marriage that, if the capacity of grasping them rationally or of assuming them in a minimal way is lacking, effective consent is impossible and marriage can absolutely not be constituted or brought into existence. Since these rights/obligations are those which are necessarily undertaken by whoever gives proper matrimonial consent, it should be possible to establish their nature from a consideration of the object of consent itself.

Essential obligations must derive from the object of consent

            Now here again we run into some difficulties, for the 1983 Code of Canon Law, in c. 1057, § 2, offers us a new formula of the object of consent; one which is not only very different from the corresponding formula of the 1917 Code (c. 1081, § 2), but whose meaning or content is not yet adequately or univocally established in doctrine or jurisprudence.

            Matrimonial consent according to the old Code was "an act of the will by which each party gives and accepts a perpetual and exclusive right over the body, for acts which are of themselves suitable for the generation of children" (c. 1081, § 2). Here consent had as its object the gift of a concrete right - the "ius in corpus".

            Canon 1057, § 2 of the new Code describes consent in very different terms: "an act of the will by which a man and a woman, through an irrevocable covenant, mutually give and accept each other in order to establish marriage". Here, so it seems, the object of consent is the parties themselves: their giving and accepting of each other.

            Therefore in the 1917 Code, consent involved a "traditio iuris". In the 1983 Code, consent involves rather a "traditio suiipsius": the object is now the gift of one's self. Now a true gift implies the transfer, from the giver to the receiver, of a proprietary right or ownership of what is given. But it is obvious that each spouse does not transfer ownership of his or her person to the other. So it is clear that the concept of "gift of self" cannot be understood in a totally literal sense. We must go below the surface if we are to achieve a deeper understanding of what is involved here.

            Working within the terms of the law in force up to 1983, jurisprudence was careful not to speak of a "traditio corporis" - a handing over of the body - , but of a "traditio iuris" - a handing over of a right, specifically of a "ius in corpus", a right over the body. If marriage consent does not make one spouse owner of the body of the other, still less does it give him or her ownership of the other's person. It would therefore seem that the notion of the "traditio personarum" needs to be juridically refined into that of the handing over of a "ius in personam": a right over some personal element so proper to the individual, so "representative" of him or her, that its "traditio/acceptatio" constitutes the conjugal gift of self measurable in juridic terms.

            If we follow St. Thomas's teaching that the object of the wife's matrimonial consent is not so much her husband, as conjugal union with her husband (and similarly the husband's consent is to conjugal union with his wife) (Suppl., q. 45, art. 1), we can suggest that the right exchanged in consent is a right over the conjugal aspects or attributes of the person; i.e. over his or her conjugal and complementary sexuality. However, we evidently need to go further if we are to establish what is really specific to the gift of conjugal sexuality, and identifies it as such; and why it can legitimately represent a "gift of self".

            Statements like "I give you my masculinity... I give you my femininity..." are scarcely concrete enough for juridic analysis. They remain on the level of mere metaphor or poetry. There is a statement however - "I give you my procreative power" - that has nothing merely metaphorical about it. To give to another a right over one's procreativity has a totally concrete character to it: one that is indeed subject to juridic appraisal or measurement. The gift of procreativity has, in particular, a unique capacity to express the gift of self and the desire for union with one's spouse. It is in fact the first element that truly specifies and distinguishes the object of matrimonial consent. While a personalist analysis is specially called for here, space permits only a brief reference to a thesis that I have more fully developed elsewhere ("Matrimonial Consent and the «Bonum Prolis»": Monitor Ecclesiasticus 114 (1989-III), pp. 397-404; "Procreativity and the Conjugal Self-Gift": Studia Canonica 24 (1990), pp. 43-49).

A personalist analysis

            A couple in love not only regard their love as unique, but wish to give unique expression to it. Nothing can so singularly expresss their marital love and union as their child, and the act by which, in virtue precisely of its procreative orientation, they become "one flesh". Procreativity therefore, far from being a matter of mere "biology", as is maintained at times, pertains to the most intimate aspirations of human love and the desire for spousal union, and as a result is eminently personalist. In fact, in a truly human understanding of conjugality, the personalist and the procreative view are not in opposition but are rather inseparably linked. The readiness to share one's procreative power personalizes the marital relationship in a way that no other act can. It shows that each spouse is truly unique in the other's eyes, for each is prepared to share with the other, and with no one else, the unique power which is actualized in the union of procreative complementarities.

            "What makes marital intercourse express a unique relationship and union is not the sharing of a sensation but the sharing of a power: of an extraordinary life-related, creative physical sexual power. In a true conjugal relationship, each spouse says to the other: "I accept you as somebody like no one else in my life. You will be unique to me and I to you. You and you alone will be my husband; you alone will be my wife. And the proof of your uniqueness to me is the fact that with you - and with you alone - am I prepared to share this God-given life-oriented power" (C. Burke: "Marriage and Contraception", L'Osservatore Romano, English Edition, October 10, 1988, p. 7).

            Thus the "bonum prolis" can and should be reinterpreted in a personalist key, so that the reciprocal gift of conjugal procreativity is seen to uniquely express the mutual "self-gift" proper to marital consent. A brief consideration of the "bonum fidei" and the "bonum sacramenti" can illustrate how these other traditional "bona" are also essential elements of the conjugal self-gift, object of matrimonial consent.

            What is implied in the marital "sese tradere" is the gift of the fullness of spousal sexuality; and this cannot be full unless, besides being open to life, it is exclusive and permanent. In other words, if the gift of sexuality is to be truly human and conjugal, it must be characterized by the further elements or properties of uniqueness and indissolubility (cf. Gaudium et Spes, 48).

            A gift of self for a time - for a day or for five years - is not a real gift of self; it is at most in the nature of a loan. Whoever lends something, holds on to his right to it, and so is able to claim it back. He does not really give it. One can only speak of a true gift when this is irretrievable; in other words, when there is a donation that cannot be reclaimed (cf. Familiaris Consortio, n. 11: AAS 74 (1982) 92).

            There is in fact no middle term between permanent and transient. There is no middle choice between the lasting and unbreakable relationship of marriage, and what is no more than a temporary sexual liaison; between a spouse, to whom one gives oneself for life, and a sexual partner, changeable at will. If the norm for the human sexual partnership is that it can be not only entered upon but also broken as one or other partner wishes, then "marriage" has no particular meaning. It is a form that confers "legality" on transient alliances; but there is no reason - beyond social convention - why people should respect it, or why they should not prefer to remain in a non-formalised relationship.

            Conjugal unity or exclusiveness derives from the same logic, and equally corresponds to the nature of human love. One's "self" is indivisible and unrepeatable. It therefore cannot be given to several persons at the same time; it can only be given to one. "I give you my self" is the affirmation that characterizes conjugality. But if one spouse intends to make the same gift of his conjugal self also to other persons - if he proposes to divide his conjugality - , then it is at the most a part of his conjugal self that he gives to each one.

            We could synthesize these considerations by saying: the distinctive self-gift which is the object of matrimonial consent, consists in the gift of conjugal sexuality; and this gift: a) in order to be sexual - i.e. in order to actualize shared and complementary sexuality - , must be open to life; and, b) in order to be conjugal, must be exclusive and permanent. So, the marital self-gift - the "traditio coniugalis" - is the donation of one's sexuality, in its concretely procreative aspect, made in a permanent and exclusive way.

The augustinian «bona» - a first source of the essential obligations

            Our analysis therefore, applying the personalism of the Second Vatican Council and of Pope John Paul II, marks a line of continuity with tradition. Procreativity, exclusivity, permanence - the augustinian "bona" - define the essence of the conjugal commitment. And the object of marital consent - the self-gift of the spouses - is therefore specified by these three essential characteristics or properties of marriage.

            If the essential obligations of matrimony must derive from the (juridic) object of matrimonial consent - i.e. from what the spouses necessarily and constitutively consent to - , we would now seem to have attained a more certain position from which to state (at least as a first approximation) what these obligations are: they are those that necessarily derive from the augustinian "bona", which are "inter essentialia matrimonii" (cf. c. Felici, Jan. 18, 1955, RRD, vol. 47, p. 54).

            We appear to be on sure ground here, for it is clear that matrimony cannot come into existence without basic understanding and free acceptance of what is fundamentally implied in these three "bona", or without the ability to assume it. As we read in a Sentence coram Pinto, of July 8, 1974, "It must be borne in mind that not every defect is sufficient for a declaration of nullity, but it must be so great that it renders the contracting party incapable of making a free choice or of assuming the essential duties of the three «bona»" (RRD, vol. 66, p. 501); and in another of July 3, 1979, coram Pompedda: "Not every defect of balance or maturity is enough to induce the nullity of matrimonial consent; this can only be brought about by a defect such that it makes the contracting party incapable of a free choice or of assuming the essential obligations and in particular the three «bona» of marriage" (RRD, vol. 71, p. 388).

            An examination of the practical cases where a grave lack of discretion about the essential obligations involved in the three «bona», or an inability to assume them, renders a person incapable of valid marital consent, would go beyond our present purpose. Here we would simply stress that a declaration of nullity requires evidence not only, as the Pope has emphasized, that the alleged psychic disability was grave (at the time of the wedding), but also that it disabled the person in relation to some essential right or duty of marriage.

            A psychosis is normally considered grave in itself. But it must be proved not only that the psychotic condition was present at the time of the wedding, but also that it produced an incapacity in relation to some essential matrimonial obligation. If one is dealing with satyriasis or nymphomania (however classified), and the alleged condition is shown to have been truly present, then the incapacity can be considered established. In the case of a paranoid personality, however, the same would not necessarily seem to follow. A man might have a deep paranoid sense of being harmed or exploited by persons totally unconnected with married or family life (e.g. professional associates or business rivals). No doubt this can be upsetting for his wife, insofar as he manifests his fears to her. But it is not evident how his particular condition relates to, and less still how it incapacitates for, any essential obligation of marriage (Obviously a different judgment might emerge, if his condition were displayed precisely in pathological and groundless questioning of his wife's fidelity). Much the same would seem to apply to other frequent personality disorders: histrionic, narcissistic, dependent conditions, etc.

            This is all the more true if one is dealing with milder psychic conditions, such as neuroses frequently are. Symptoms of moderate neurosis, as often found in persons suffering from a certain degree of hysteria, obsessive ideas, compulsive behavior, etc., cannot reasonably be taken as a basis for a sentence of nullity. They fail both on the count of lack of gravity, as well as on that of irrelevance to some essential obligation of marriage (cf. coram Burke, Sentence of June 18, 1990, n. 9, in Forum, 3 (1992), pp. 103-104).

Essential obligations and the ends of marriage

            Without going further into this, we proceed to another important point which must be pondered. Essential rights/obligations derive from the essence of matrimony, and from everything necessarily connected with the essence, such as the essential properties; but, as I see it, they do not derive from the ends [2]. As we read in a Sentence coram Raad of April 14, 1975: "one must point out that the ends of matrimony or of the contracting parties, do not constitute essential elements of the object of consent, as some authors and judges think. They argue that whoever is incapable of the end, is incapable of entering matrimony and eliciting valid consent. To refute this theory it is enough to recall can. 1068 § 2: «Sterility neither invalidates nor prohibits marriage». What is said of the principal end of matrimony, can be said a fortiori of the other ends" (RRD, vol. 67, p. 243).

            Since the ends of marriage fall outside its essence, I do not think it is correct to wish to determine essential rights/obligations in function of those ends; they must be determined rather in function of the essence, and its essential properties (which do enter the essence, inasmuch as they describe aspects of the essence). This is why I think one cannot properly individuate juridically essential rights/obligations in reference to the «bonum coniugum». Marriage is ordered in fact both to the "good of the spouses" and to the procreation/education of children (c. 1055, § 1). But if, as Raad points out, an incapacity to effectively generate does not invalidate marriage, neither, it would seem, does an incapacity to achieve the «bonum coniugum» [3]. One has the right to what must be given by the other; not to what marriage itself may or may not give, for this latter gift depends not just on the spouses but ultimately on God. Sometimes God's plan for the good of the spouses involves a childless marriage; and it not infrequently seems to involve a union where personality differences create tensions between the spouses that can pull the marriage apart - unless they have recourse to prayer and sacrifice so as to learn to get on together. The solution of this point (which space does not permit us to pursue here) necessarily depends on how one understands the «bonum coniugum», a subject to which I have devoted some consideration elsewhere ("The «Bonum Coniugum» and the «Bonum Prolis»; Ends or Properties of Marriage?" The Jurist, 49 (1989):2, pp. 705-709).

            If actual procreation is not an essential obligation of matrimony, does the same not hold good, a fortiori, for the education of offspring? Personally I tend to agree with the view that regards education of children as an obligation rooted directly in paternity rather than in matrimony. It is certainly a common opinion that the education of children is an effect of marriage, rather than one of its essential obligations [4]. However that may be, it is certainly difficult to give a juridic measure for the extent of this obligation. There are other difficulties: would one, for instance, hold that a man under sentence of death, or suffering from a terminal illness from which he will surely die within a few months, cannot give valid consent because he will be incapable of participating in the education of any child born of this brief conjugal union?

"Consortium/communio vitae"

            I understand the view that would wish to find a broader source than merely the three «bona», for the essential rights/obligations contemplated in c. 1095. And I sympathize too with the desire to find such a source in the «consortium totius vitae» or the «communio vitae et amoris». But it seems to me that once one tries to establish juridically how these latter concepts, of themselves, originate essential rights/obligations, one runs into grave difficulties.

            Can we not say that an incapacity for establishing the «consortium totius vitae» invalidates consent? I think we can; but I am not sure that we have an "autonomous" ground here, i.e. one that covers anything really different to what is embraced in the three «bona». The «consortium totius vitae», however traditional as a description of marriage, offers little by way of defining it, unless one qualifies the «consortium» or the "life" in question with the adjective "conjugal". A homosexual «consortium» for the whole of life could exist, and yet would not constitute marriage. What is essential in the «consortium» is conjugality; and what is essential in conjugality is covered by the «bona».

            So, if it is unquestionable that a capacity for the acceptance of the «consortium totius vitae [coniugalis]» is essential for the valid establishment of matrimony, if this is submitted to deeper juridic analysis, it simply means that there must be a capacity for the acceptance of marriage (with which, we insist, the «consortium totius vitae» is synonymous), in those features which characterize its essence, i.e. the three «bona», for in these are expressed the absolutely necessary characteristics of the "one lot" (the «con-sors») that the spouses share, and must be capable and ready to share [5].

            The personalistic value of the «bona» has unfortunately become obscured in canonical usage over the centuries; which makes its rediscovery all the more urgent. In order to resee these «goods» in a personalist light, one must overcome the tendency to regard the "institutional" and the "personalist" aspects of matrimony as being necessarily in opposition (cf. the author's study: "Marriage: a personalist or an institutional understanding?" in Communio, 19 (1992) pp 287ss). The «bona», as we have sought to show earlier, relate to singular expressions of personal and mutual commitment. They are in fact the first elements that personalize the institution of marriage. Nothing, we insist, so underlines the uniqueness and extent of the conjugal self-donation as the fact that it is the gift of personal procreative power made to another in an exclusive and life-long union.

            This can help us to examine the suggestion that a further source of essential rights/obligations can be derived from the concept of the «communio vitae».

            The rotal decision coram Anné of February 25, 1969 suggested that the object of matrimonial consent should include not only the «ius in corpus» (he of course was writing under the old Code), but also a further essential right - the «ius ad vitae communitatem vel communionem» (RRD, vol. 61, p. 183). The proposal, subjected to proper analysis, appears to lack substance, for the very reason just given in speaking of the «consortium». A right to "communion of life", in our context, can only mean a right to the communion of conjugal life. Then however Anné's proposal simply signifies that consent to marriage originates a right to married life, which is obvious and adds nothing to our knowledge. It is hard to discover any autonomous entity to the proposed right, or to see how its recognition could mark any real advance in the juridic understanding of the object of marriage consent.

            The subsequent history of the "right", as proposed by Anné, would seem to bear this out. Especially in the '70s and early '80s, certain jurisprudential and canonical trends strongly proposed the right to "communion of life" or to "the intimate communion of persons", as a new and essential right of matrimony, and pressed vigorously for its incorporation into the revised Code of Canon Law. The debate was marked by the notable Sentence of the Apostolic Signatura, of Nov. 29, 1975. The special Turnus of five Cardinals (with Cardinal Staffa as Ponens) went into a lengthy examination of the notion of the "ius ad communionem vitae", and concluded that it essentially signifies the "ius ad individuam unitatem vitae sexualis" (cf. Periodica, 66 (1977), p. 310); i.e. the right to exclusiveness in the unitive aspect of sexual life. Thus it adds nothing to the rights involved in the «bona», particularly the «bonum fidei» and the «bonum prolis».

            Despite the Signatura Sentence, the proposed «ius» was at one stage actually included in a draft canon for the revised Code. Nevertheless, it was finally dropped because, as appears from the minutes of the Pontifical Commission charged with the revision, it was considered to be equivalent to «matrimonium ipsum» and therefore redundant (cf. Communicationes, 1977, p. 374; 1983, pp. 233-234). In other words, the «ius ad communionem vitae» simply means a «ius ad matrimonium» (A Sentence of Jan. 31, 1976 coram Lefebvre, says that the «ius ad vitae communionem» "is not independent from the right to the conjugal act with its essential properties, but more properly signifies and indicates all of these in the context of what that right embraces, i.e. the ordination to offspring, perpetuity, and exclusiveness" (RRD, vol. 68, p. 39). Jurists appear to be accepting the logic of this, for it is rarer nowadays to find the «ius» seriously put forward as having any independent entity.

            A "right" to a "communion of life" is as appealing as it is broad and vague. For practical juridic purposes, it appears pointless to propose such a right as "essential" or "constitutive" to matrimony, unless one clearly specifies its content. This has always been the trouble. The undoubted attractiveness of the concept could never make up for its equally undoubted vagueness. In practice all attempts to give it solid juridic body seem to have ended in failure.

            Msgr. Anné himself, in his 1969 Sentence, described as an «onus difficillimum» the task of defining precisely what is juridically necessary for this «communio vitae»: "it is a most difficult task to accurately and exhaustively define and explain what - from the juridic point of view - is required for the substance of this 'relationship and communion of life'..." ("onus est difficillimum modo accurato et exhaustivo definire et explicare quid - sub respectu iuridico - requiratur ad substantiam istius «consuetudinis et communionis vitae»..." (loc. cit. p. 184). This point was later taken up in a Decision of the Apostolic Signatura of Oct. 17, 1972. Having expressed serious doubts whether the «ius ad communionem vitae» could be regarded as constitutive of marriage independently of the rights involved in the three «bona», the Decision went on: "But even if the right and duty regarding communion of life were proper to marriage - as a right/duty different to those represented by the three matrimonial goods - a very precise definition would be required of the elements that constitute this right/duty; and this is something that has not yet been achieved by doctrine or jurisprudence" (Periodica 62 (1973), p. 579).

            It is true that some authors, undismayed by this «dificillimum» task, have not hesitated to make a list of the elements which they consider essential for the «communio vitae», suggesting that matrimonial consent gives a strict right to each of these in such a way that the person incapable of living or giving any of them is incapable of true and valid consent. Elements suggested include: "Oblatory love"; "Responsibility in establishing conjugal friendship"; "Maturity of personal conduct throughout the ordinary events of daily life"; "Stability of conduct and capability of adapting to circumstances"; "Gentleness and kindness of character and manners in mutual relationships", etc. (The Signatura Sentence of Nov. 29, 1975 criticised the inadequacy of these suggestions (cf. Periodica, 66 (1977), pp. 312-313); as did the rotal Sentence coram Raad, quoted earlier: RRD, vol. 67 (1975), p. 244-245).

            It is clear that elements such as these are highly desirable in married life, and their presence contributes greatly to its success and happiness, just as their absence can lead to married unhappiness and failure. It is also clear that the person who is in stable possession of these qualities has attained a high degree of psychological maturity. But the question is: are only those who have attained such a degree of psychological development capable of valid matrimonial consent? In other words, does consent confer a juridic and constitutive right to find such overall maturity in one's partner? If it did, very few marriages could be held valid. Here it is very easy to fall into the mistake which the Pope, in his 1988 Address to the Rota, warned against - of judging "in reference not to the minimum capacity which is sufficient for valid consent, but to the ideal of that full maturity which so influences the happiness of married life" (AAS vol. 80 (1988) 1183).

            Any true anthropological view of matrimony (and not just a christian view alone) surely sees marriage more as a point of departure than as a point of arrival. The maturity required for valid consent is properly that of those who are setting out on adult life, not of those who have already reached the ideal term of human growth. As we read in the Sentence coram Pompedda of July 3, 1979, quoted earlier: "Marriage cannot be considered as the crowning of maturity already acquired, but rather as a step in the process by which fuller maturity is to be attained" (loc. cit.). Canon 1095 speaks of (grave) lack of discretion, not of (simple) lack of maturity; and I feel we should carefully note the difference.

            In any case, and to conclude with the «ius ad communionem vitae», it seems that twenty years after the Signatura Decision quoted above, neither doctrine nor jurisprudence have managed to give any acceptable explanation of how this right has an autonomous entity of its own, or to show how it includes some element essential to matrimony which is not already covered by the three «bona».

A Sentence must specify the essential obligations in question

            The marital relationship certainly involves many other [moral] obligations which are important to the fullness of conjugal life, but are not essential to its [juridic] constitution or coming into existence. Great difficulty, or even what seems to be radical inability, to live up to these obligations (such for instance, as an irascible person's inherent incapacity to control his or her temper) does not render a marriage null. As we read in a decision coram Di Felice, of Dec. 12, 1970: "What the spouses must give and accept when they express matrimonial consent are the rights essential to conjugal life, not its accidental particularities... Therefore if they are prevented from properly understanding and freely choosing not the rights and obligations of marriage, but simply the proper way of acting in the casual circumstances subsequent to marriage which occur later in their conjugal life, they are certainly capable of giving valid consent" (RRD, vol. 62, p. 1152).

            The juridic imprecision of the phrase "community of life", or even "conjugal community of life", means that its use in cases related to c. 1095 is not helpful unless the context has already clearly analysed or specified the essential elements of conjugality. One should reject, as too vague and therefore inadequate for grounding a judgment of nullity, a simple conclusion that "some" disorder was present which "prevented the very possibility of the coming into being of the conjugal community of life". In cases of alleged incapacity Judges should require, and Advocates should state, the specific nature of the essential matrimonial obligation to which the asserted incapacity is referred. "Lest marriage nullity sentences on grounds of incapacity for fulfilling conjugal obligations by reason of some psychic illness or abnormality, become so vague as to embrace all marriages that have turned out unhappily, they must clearly state the obligation that is in question and, once this is clear, why the alleged illness or abnormality is judged to have made it impossible to fulfil that obligation" ("Ne sententiae pro nullitate matrimonii ex incapacitate onera coniugalia adimplendi propter morbum vel abnormitatem psychicam adeo vagae eveniant ut cuncta amplectantur connubia quae infelicem nacta sint exitum, necesse est in ipsis aperte significari de quo tandem onere disputetur et, hoc patefacto, cur morbus vel abnormitas de qua agitur impedivisse iudicetur quominus onus illud adimpleri posset" (c. Egan, Jan. 14, 1981: RRD, vol. 73, p. 13).

            One frequently enough comes across phrases like: "The Court is morally certain that the Respondent did not exercise sufficient discretion of judgment when he gave consent". This again is not specific enough to ground a judgment of nullity, which must always designate the essential obligation to which the grave lack of discretion or the inability to assume related.

            The sphere of intimate corporal relations is certainly one where essential rights/obligations are involved. Physical incapacity for such relations invalidates matrimonial consent. Nevertheless, it does not appear that anomalies which simply make the marital sexual relationship more difficult can render consent null on the grounds of incapacity. Such for instance could be the case of transvestism, i.e. the tendency or compulsion to wear the dress of the opposite sex, particularly when seeking intercourse. Such anomalies certainly take from the "bene esse" of the marital relationship, but not in any radical way from its "esse". Jurisprudence, we repeat, is concerned with what might be called the "valid essence" of matrimony, not with its "ideal essence" (cf. coram Burke, Birmingham Sentence of June 13, 1991). Here we should again recall the words of the Holy Father to the Rota in 1987: "For the canonist, the principle must remain clear that only incapacity, and not just difficulty, for giving consent, renders marriage null" (AAS vol. 79 (1987) 1457).

            To be essential it would seem that the rights/obligations must necessarily be common or reciprocal (as those deriving from unity, procreativity and permanence undoubtedly are). It is therefore questionable if an obligation such as household administration - "paying of bills", etc. - can be held essential. It is no doubt important to conjugal life, but there are serious difficulties to regarding it as an essential obligation, within the terms of c. 1095; above all because it is not of itself a common obligation, there being nothing to prevent it being the responsibility of the husband in one marriage, or of the wife in another.

Interpersonality

            Grave lack of discretion and "incapacitas assumendi" are both referred by c. 1095 to the essential obligations of matrimony. They are to be measured, therefore, in relation to the institution of marriage, and not to the particular spouse whom a person chooses. Some acceptable juridic standards can be established for measuring capacity to appreciate or to assume the "per se" obligations of marriage. None can be established for measuring the capacity of one person to make a wise choice of a particular partner, or to be able to live married life successfully with him or her. Tribunals can reasonably be asked to judge person-to-institution capacity for, although the task is certainly delicate, the points which mainly guide their consideration are the constants of human nature and the essentials of the most natural of human institutions; in other words, objective elements provide the principal basis for their judgment (cf. c. Pompedda, Feb. 19, 1982, RRD, vol. 74, p. 90, n. 9). They cannot be reasonably asked to judge person-to-person capacity, for then all the elements involved are subjective (cf. C. Burke, "Some Reflections...", Monitor Ecclesiasticus, 1992-I, p. 142).

            While I hold that the "personalist" understanding of marriage offered especially by Vatican II and the present Pope, is immensely enriching (also for the canonist), I am not so sure to what extent "interpersonal" theories enable us to make a deeper juridic analysis of the matrimonial institution.

            Interpersonal relations are constant and habitual in human society. When they are characterized by affection or love, as in the case of purely human friendship or also, on a more supernatural plane, of religious life, they allow for many degrees of "union" or "communion" of life. Marriage offers a unique form of such communion. However, it is evidently not interpersonality so much as conjugality which characterizes matrimony, and which must be taken as the criterion for the specification of essential matrimonial rights. Therefore when one states that marriage is by definition an interpersonal relationship, one is stating the obvious, but not the specific. Moreover, one may be in danger of subordinating conjugality to interpersonality, and of thus being led to adopt mistaken criteria for determining what a person who marries is essentially bound to. It is not so much the interpersonality but the conjugality of the relationship, that has to be subjected to juridic analysis. If this is not adequately done, a phrase such as "the right to an essential interpersonal relationship" remains so vague as to be virtually meaningless.

Relative incapacity

            As applied to marriage, the "interpersonal" theories tend to place the accent on the reciprocal capacity of the spouses to adapt to each another. One easily goes on from this to develop the idea of "relative incapacity", and to postulate compatibility of temperament or character as a requisite for valid consent.

            One has a right, when marrying, to find certain essential capacities in one's partner (capacity for a faithful one-spouse relationship, for instance); but one cannot posit a right to particular qualities of temperament or disposition. Otherwise one ends by making the validity of marriage depend on the capacity for an easy and harmonic relationship; and so one arrives at "relative incapacity", as did one Tribunal in judging that the Respondent "lacked the dynamics of that harmonious and viable interpersonal relationship which is an essential component of the «consortium omnis vitae»; or another, on the grounds that she did not possess "l'aptitude a écouter l'autre, à se dévouer a lui, à le respecter, à lui montrer un minimum d'«affectus maritalis», etc... et enfin à se conduire en adulte cohérent et responsable, en particulier devant les difficultés concrètes de la vie de couple et de parent".

            To my mind the theory of relative incapacity should also be judged in the light of the common pastoral experience that many highly "integrated" marriages are between couples with extremely diverse and even apparently opposed characters, who could well have ended up "incompatible" unless they had resolved (in an evidently maturing effort) not to do so (which also underlines that one cannot resolve the «bonum coniugum» into a question of natural compatibility, nor can one hold that seeming incompatibility is necessarily an enemy of the good of the spouses).

            Moreover, the basic principle of christian personalism as enunciated by Vatican II - "man can fully discover his true self only in a sincere giving of himself" (GS 24) - clearly stresses that in any interpersonal relationship, and a fortiori in marriage, expectations of receiving or being loved have to be subordinated to the more truly christian norm of giving and loving. In other words, any possible "ius ad amorem" would have to be weighed against the accompanying "obligatio amandi"; both the right and the duty involved seem to me to strongly resist juridic analysis.

            Msgr. Serrano has been the main proponent of the theory of relative incapacity at the rotal level. In line with the thesis that marriage is essentially an interpersonal affair, he holds 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 personalities in mutual interaction; only such an analisis allows one to judge 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 (which in fact is not accepted in the mainstream of rotal jurisprudence. 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; c. Burke, July 22, 1991, nos. 7-8; etc.). To emphasize the point made above, 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 [6]. The point must be insisted upon: consensual incapacity relates to marriage, not to spouse; it is person-to-institution incapacity, not person-to-person incapacity.

            It would therefore seem outside the competence of the law to judge relative moral capacity. Consequently, the simple fact that a person feels morally incapable of keeping up conjugal life with the particular partner he or she had chosen, while it might offer pastoral grounds for advising separation, would provide no juridic grounds for judging marital consent to have been null.

            In a recent article, Msgr. Serrano maintains that the interpersonal conjugal relationship is ontologically prior to the qualities or properties - the «bona» - which qualify it; therefore, if interpersonality is lacking, it makes no sense to speak of the «bona», since one cannot predicate properties of a non-existing thing ("La consideración existencial del matrimonio en las causas canónicas de nulidad por incapacidad psíquica" Angelicum, vol. 48 (1991), p. 177). I would see the matter the other way round. The conjugal interpersonal relationship has no autonomous existence independently of the «bona»; nor can one properly speak of the relationship being prior to them or existing "first"; for it is the «bona» which define it and give it substance. So true is this, that the absence or exclusion of any one of the «bona» (e.g. in the case of simulation) makes the establishment of the conjugal relationship impossible. Without the «bona», in other words, it makes no sense to speak of the conjugal interpersonal relationship, for it cannot exist.

Essential elements

            In c. 1101, § 2, what is covered by the phrase "essentiale aliquod elementum" ("if either or both parties through a positive act of the will should exclude marriage itself, some essential element or an essential property of marriage, it is invalidly contracted")? Would it not seem that essential rights/obligations derive from it? Some have maintained that it refers to the «ius ad vitae communionem». As pointed out, this appears no longer acceptable, for the tautological «ius» was rejected as lacking in substance. To my mind, the essential element or elements here referred to must cover the «bonum prolis» [7], i.e. procreativity, insofar as this is not yet generally referred to as an essential property - which I believe to be its proper denomination (cf. op. cit., The Jurist 1989:2. pp. 709-713).

            For our purpose, in any case, essential elements and essential rights/obligations are not same thing; essential rights and obligations have to be derived from the essential elements. For instance, if one can say that the «ordinatio ad bonum coniugum» is an essential element (cf. Communicationes 1983, 221), then the rights/obligations deriving from it coincide with those deriving from the three augustinian «bona». It is these that provide the basis for defining the essential rights/obligations through the fulfilment of which marriage can attain its institutional ends.

            It may be objected against this analysis that, while it covers incapacity arising out of conditions such as sexual hyperaesthesia (which would clearly go against the «bonum fidei»), it does not seem to cover cases of homosexuality. Surely a homosexual condition incapacitates for marriage? Pastoral experience suggests that we are wise to reason carefully here. There are milder expressions of homosexuality (as was true in the concrete case of transvestism mentioned earlier), and many people who should be classified as mildly homosexual in that sense want married life, and moreover are accepted by their spouses, despite the difficulties that their condition gives rise to. This is where careful reasoning is called for: their condition involves undoubted difficulties - but not necessarily incapacity - regarding the essential duties of married life. Any blanket conclusion that any and every person with homosexual tendencies is incapable of marital consent, would seem to involve a potential grave violation of the ecclesial and human rights of many people.

            That of course is not to say that nullity should never be declared because of homosexuality. But when it is a case of one partner discovering a pre-existent homosexual condition in his or her partner which seriously disturbs conjugal life, I feel that one would almost always be on proper and surer grounds in alleging «dolus» (c. 1098), rather than trying to force the case in under c. 1095, 3.

Conclusion

            As I mentioned at the start, this article is meant as a simple contribution to an on-going debate. The considerations offered here obviously call for completion; and, it may well be, for correction. Nevertheless, from the analysis so far effected, I feel that whatever the extent of the moral obligations to which marriage gives rise, the only sure basis from which to derive its essential - constitutional - juridic rights and obligations (as referred to in c. 1095) is that offered by the augustinian «bona»: exclusiveness, procreativity and indisssolubility. Other suggested rights/obligations appear to be either not essential or not constitutional (i.e. they refer, as we noted earlier, not to what is essential for the "esse" of married life, but simply to what is desirable for its "bene esse"), or else they simply derive from the three «bona», on which they are dependent and to which, in any strict juridic analysis, they should be referred.

NOTES

[1] The Pope has given another equally clear rule. Consensual incapacity - whether it derives from the mind or from the will - can only be posited in the presence of a grave psychic anomaly: Address to the Rota, 1987 (AAS 79, 1457). cf. C. Burke: "Some Reflections on Canon 1095", Monitor Ecclesiasticus (1992-I) p. 137.

[2] J. Hervada holds that they do, although he finds difficulty in allotting juridic status to the obligations involved in the «bonum coniugum», as he understands it: "Obligaciones esenciales..." loc. cit., pp. 18-39.

[3] The «bonum coniugum», rather than as an essential obligation, would seem better classifed as an effect of marriage; as an effect, concretely, of the observance of the essential obligations involved in the three augustinian «bona».

[4] "Si è sempre affermato nella dottrina canonistica che l'elemento della educazione della prole, alla quale il matrimonio è pure ordinato, non può essere assunto come essenziale nella categoria di diritti e obblighi essenziali. In verità, anche nel nuovo codice, tale dovere è collocato tra gli effetti del matrimonio (cap. VIII, can. 1136), e non tra le obbligazioni la cui esistenza è enunciata ma non individuata né specificata nel can. 1095 e nel can. 1101, 2" (G. Barberini: "Sull'applicabilità del can. 1095 al tossicodependente" Il Diritto Ecclesiastico 96 (1985), p. 164).

[5] See the decisions of the Apostolic Signatura mentioned later: that of Oct. 17, 1972, rejecting the thesis that the «ius ad consortium vitae» is distinct from the rights comprised in the three «bona» (Periodica 62 (1973), p. 579); and the Sentence of Nov. 29, 1975, concluding that the «consortium vitae», as essential to marriage, simply signifies the unitive aspect of marital sexual life (Periodica 66 (1977), pp. 310-311).

[6] Msgr. 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). This does not seem logical to me. 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).

[7] that this was the intention of the drafters seems suggested by the fact that the phrase "essentiale aliquod elementum" replaces the "omne ius ad coniugalem actum" of c. 1086 of the former Code.