cormacburke.me.ke

[English version: The Jurist, 51 (1991):1, 216-226]

I. THE FACTS

1.         In 1973 IC & EE became engaged (when he was 17 years old, and she 16). The engagement, which lasted 9 years, led to sexual intimacy but also to many breaks and as many reconciliations. Although in 1980 she had begun and was continuing an affair with the head of the office where she worked, the parties were married in Feb. 1982. Their experience of conjugal life together was intermittent, since he lived in Bologna, she in Rome; it was above all extremely brief, for within a month she attempted suicide, and they finally broke up some weeks after that.

2.         On Dec. 21, 1982, she petitioned the Regional Tribunal of Latium to declare the marriage null on the grounds of the exclusion of the "bonum sacramenti" and the "bonum fidei" on her own part. An Affirmative decision was given on Sept. 20, 1984.

3.         The Defender of the Bond having appealed to the Roman Rota, two Negative decisions were forthcoming: coram Pompedda of July 28, 1986, confirmed coram Neuhaus of Nov. 19, 1988. The Petitioner did not desist, but had recourse to the next Turnus seeking a new proposition of the case, according to c. 1644 § 1: which was in fact granted by a Decree of our Turnus of Oct. 25, 1989. On March 8, 1990, the doubt was formulated in the following terms: "Whether the nullity of the marriage has been proved, in the case before the Court, on the grounds of the exclusion of the "bonum sacramenti" and the "bonum fidei" by the Petitioner."

II. THE LAW

4.         "The essential properties of marriage are unity and indissolubility..." (c. 1056). "From a valid marriage arises a bond between the spouses which by its very nature is perpetual and exclusive" (c. 1134).

            That the "bonum fidei", which corresponds to the essential matrimonial property of unity, refers more to the "uniqueness of the bond" than to the "exclusiveness of the copula", is a thesis which we have argued at some length in a Sentence of Feb. 8, 1990 (cf. Monitor Ecclesiasticus, vol. CXV, 1990-IV, pp. 502-520).

            There we held that a simple "propositum adulterandi", present at the moment of consent, is not of itself sufficient to prove an invalidating exclusion of the "bonum fidei". Such an exclusion occurs only where there is a refusal of the gift of conjugality - i.e. of exclusive conjugal status and rights - to the other party, or an intention to extend such conjugal status and rights to a third party or parties as well.

5.         In the rotal Decree coram Masala of March 5, 1985, which sent the present case forward for ordinary second trial, we read: "No marriage is contracted by the person who, in the wedding ceremony, besides giving and accepting the right to conjugal acts with the other contracting party, reserves to himself or herself the power or right to have sexual intercourse with other men or women, as spouses, or who allows the same power to his or her partner. In such cases, there is no acceptance of the obligation of one indissoluble bond with one person".

6.         As has been indicated, a new proposition of the cause was allowed in the present case, even though it had already been the object of two concordant rotal decisions upholding the validity of the marriage. There is nothing surprising in this; rather it serves to recall the Church's concern for the rights of persons. As is well known, cases concerning the status of persons never become a "res iudicata", i.e. a definitively adjudged matter (cf. c. 1643). As long as new and grave arguments have been adduced (cf. c. 1644, § 1) - as, to our mind and beyond any doubt, they have been produced in the present case - justice demands a thorough judicial review of the case; and, if indicated, a reversal of earlier decisions. "This is not only to be stated of a further judgment of the case after two sentences in favour of nullity, but the same rule undoubtedly applies even when both sentences have been in favour of the validity of the marriage" (coram Ewers, July 22, 1981: ARRTD, vol. 73, p. 362).

7.         A further remark may be pertinent. The ecclesial and pastoral mission of the Church's tribunals is to defend rights and to uphold justice. Respect for the truth is the only basis on which that mission can be properly and fruitfully fulfilled. Pope John Paul II, addressing the Roman Rota this year on the subject of the pastoral nature of church law, warned against a pseudo-pastoralism in which the clear requirements of truth and justice are subordinated to "understandable but misconceived feelings". The result of lack of respect for the truth is always to separate people from God: "The roads leading away from justice and truth end up in serving to distance people from God, thus yielding the opposite [pastoral] result from that which was sought in good faith".

            As is evident in the Pope's address, the main danger he had in mind is that of declarations of nullity which, if not based on the truth, are necessarily both unjust and unpastoral. A judge may naturally feel sympathy for a person in a difficult marriage situation, but such sympathy must be kept under due control. Uncontrolled sympathy can create a strong temptation to manipulate the truth, with grave detriment to both private and public good.

8.         At the other extreme, a judge may be out of sympathy with a person, feeling that his character or past behaviour ought to disqualify him from profiting through any decision of the Court. But, just as a person's good character gives him or her no title to what would be a violation of objective truth and justice, so a person's bad character does not deprive him of his right to just treatment before God and the law.

9.         A judge must remain detached and impartial. Only so can he judge in truth and justice. If he were to show favour to persons, the result would be discredit not just on him but on the whole judicial system. Partiality would lead to arbitrariness. People, feeling their own ecclesial rights were not being respected, would tend not to respect those of others. The multiplication of injustices, and the spiralling loss of confidence in the normal institutional means for remedying them, would undermine the fellowship, mutual confidence and unity of the whole People of God.

III. THE ARGUMENT

10.       The vicissitudes of this peculiar case would seem to correspond to the mindless character of both parties, especially of the Petitioner. Throughout three instances it has appeared shrouded in incongruities while the parties, as the preceding Turni noted, failed to inspire much credibility.

11.       At first sight in fact, the argument advanced by the Petitioner seems implausible: that, during the time of her engagement with the Respondent, she fell "madly" in love with the married man who was head of the office where she worked, and began an adulterous relationship with him. She decided nevertheless (and says that her boss agreed with her decision) to go ahead and marry the Respondent, with the idea of gaining her freedom and then of quickly leaving him so as to be united to her lover. "... even though I didn't believe in the success of a marriage with IC, we agreed that I would get married; but that between us - the head of the office and myself - nothing would change" (Summ. 30).

            She claims to have professed peculiar ideas about indissolubility and especially about marital fidelity: "Regarding marital fidelity, I was of the opinion that both the man and the woman should be mutually faithful; but if some other love were to develop in their heart, then the obligation of fidelity should be transferred from their own legal spouse to their new love". Before their marriage she communicated her ideas to the Respondent, who in effect made no objections to them: "I felt in honesty that I had to tell him that while I would marry him, he should clearly realize that if problems developed to make our life together impossible... I would not hesitate to leave him and to make a new life for myself... At the same time I told him that if I were to fall in love with another..., I would remain faithful to the other man and no longer to him, even though I might keep up married life together while waiting to be freed from the formal obligations I had assumed. And to this also he said, 'that is alright by me'".

12.       These claims are corroborated by the Respondent: "in 1978-79... E got a job in "X Corporation"... working alongside an office head whose name I would prefer not to give at the moment; a married man, still living with his wife, and with two children. In a word, E became his faithful lover".

            "In those months between our last reconciliation and the wedding, E in fact was honest and did not hesitate to tell me that she was prepared to marry me and would be faithful; but if she meanwhile fell in love with another man, she would be faithful to him; therefore I should realize that if our marriage was a failure, she would leave me and make a new life for herself. Faced with such a prospect, I see now that I was a fool. But the fact is, however, that I felt attached to her and hoped that things would not work out badly".

13.       The preceding rotal Sentences, in coming to decisions unfavourable to the Petitioner's plea, felt that the parties' story "was altogether contrary to sound reason and did not fit the facts". They considered moreover that six of the nine witnesses say practically nothing of value to promote the Petitioner's case. As regards the other three - two priests, AC & SB, and the Petitioner's friend, MB - who made affirmations strongly supportive of the alleged simulations, both Turni felt that, for various reasons, these witnesses did not merit credibility.

14.       We are inclined to interpret the testimony of the two priests differently; and feel that the credibility of the witness MB is confirmed precisely by the new document which induced us to allow the new proposition of the case. We will deal with the evidence of these three witnesses first, before going on to the main points on which we base our decision.

15.       AC, the Assistant Pastor, who interviewed the parties immediately before the wedding, strongly testifies (as does his Pastor) that, in the conversations then held, the Petitioner clearly rejected christian principles concerning marriage. The Vicariate Sentence said of the Assistant Pastor's evidence: "This testimony must be considered of the greatest value since it comes from a qualified witness". The two rotal Turni however considered that the credibility of these two witnesses is destroyed by the declaration made by the Petitioner herself. In coram Pompedda we read: "it must be first pointed out that the evidence of the two priests cannot be accepted, since the Petitioner says: "In the pre-marriage declarations, I lied"; "In the Parish they did not know my ideas on marriage, my intentions and my relationship with the office head"."

16.       We feel that any apparent contradiction can be resolved if the different moments referred to by the Petitioner are taken into account. In her libellus, she states clearly: " I went several times to the parish, and I remember that I had strong arguments with the Assistant Pastor, Fr. AC. The Pastor too, Fr. SB, was of the opinion that it would be better if I didn't get married with all these wrong ideas. Fr. AC says that when she first came to parish, "When we touched on the subjects of indissolubility and fidelity, the girl got annoyed, criticizing the Church's teaching on these points. She asserted that it is not just or moral that two spouses should continue to live together when thjey have nothing to say to one another, or at least when their marriage has turned out to be a failure... As regards faithfulness, she maintained that the woman, when for example she was away from her husband, had the right to maintain a relationship with another man, especially if she were in love with him. In this latter case, she should if anything be faithful to the second man. That meeting is still vivid in my memory, and when I recall it, I confess that as a priest I felt my heart go to my boots". He repeats this when giving evidence a second time, adding: "I flatly refused to celebrate the marriage, to the point that I interrupted the conversation and passed the matter to the Parish Priest". The Pastor, Fr. SB, testifies to a brief meeting with the couple in which, despite their hostile attitude to the Church's teaching, he contented himself with their swearing and signing the pre-marriage declarations, even though "I was convinced they were not sincere". He adds, "In any case I didn't marry them".

            The full passage where the Petitioner speaks of lying is: "in the conversations preparatory to marriage ["in sede di preparazione"], I recall that we had heated arguments so much so that they were wondering if they could marry me. In the declarations ["In sede di Processicolo"], I lied". It seems to us that she evidently refers here to two different moments: the first was her conversations with the priests ("sede di preparazione"), when by all accounts she was quite open and direct about her ideas. It was at another moment - in the signing of pre-marriage declarations; i.e. in the "sede di Processicolo" - that she lied.

17.       Without entering into the question of the pastoral prudence exercised here by the priests, it seems to us that their evidence is not only not to be dismissed, but on the contrary carries considerable weight.

18.       MB, the Petitioner's friend, made a clear statement in first instance, on account of which the Rotal Turni denied her credibility: "I know for sure that she is at present continuing her relationship with the office boss (who has separated from his wife)". The "In Facto" part of the Sentence coram Pompedda concludes in the following way: "We cannot credit the witness MB when she asserts: 'Close to the wedding, my friend made no mystry to me that she intended to recover her freedom, if she was not happy with I.'; the witness merits no faith. She is proved to be either ignorant or lying when she asserts that the petitioner is at present involved in a relationship with the ex-head of her office, since everyone else denies this". But, given the reasons why we granted the new proposition of the case, the credibility of this witness has been fully re-established, as noted in our Decree of October 25, 1989.

19.       One can easily enough understand the perplexity of the preceding rotal Sentences at the peculiar reticence of the Petitioner regarding the question whether her earlier lover and the man with whom she is now living, are the same person or not. It should be remembered that the Sentence coram Neuhaus felt that she had been involved not just with a "third man", but with two and perhaps more men, besides the Respondent; and was certain that VS, the man with whom she was living and by whom she had had a child, was a different person to her office boss. The Sentence states: "She seems rather reticent in her depositions, since she speaks of a certain man, whose 'name I prefer not to mention'. Really one does not know if this man is the same person who is spoken of elsewhere, that is, if he is her office boss or not. She speaks of a lovers' relation before and after the marriage with her boss, who amazingly remains unknown to everyone..." The Sentence continues: "What appears to be completely certain is that the Petitioner entered an affair with another man, that is VS, by whom she had a child on August 26, 1986".

20.       The new proposition of the case was granted, when the Petitioner's Advocate produced a letter identifying the person with whom she is now living - that is, VS - with her office boss. It is regrettable that it is only now, in fourth instance, that the head of her office has been identified and has appeared to give evidence; from very early on, in fact, many pointers suggested that he held the key to clarify an obscure case. Moreover, while the parties were inexplicably reluctant to give his name, they nevertheless said they would do so if necessary. In our opinion, the clarification of the identity of the head of the office has proved vital for an adequate judicial understanding of the case, since now in fourth instance it clearly appears that the Petitioner had been having an almost unbroken relationship with this same VS from before the marriage.

21.       Although he was cited in first instance, VS did not appear to give evidence. Passed over in second and third instance, he has at last appeared in Court. In the event, we feel that his evidence proves decisive for the final evaluation of the case. The previous Turni could make no sense of the Petitioner's story and thought it incredible. VS helps to make it credible.

            While he confirms the substance of her story, he adds that he too thought her plan absurd, and told her so clearly: that getting married meant running into bigger troubles. "E married I above all because she thought it the way to gain what she felt to be her freedom - her freedom of action, of personal independence from her family and from the limitations of the locality in which she lived... E told me explicitly that once the marriage had been celebrated, she would come to a rapid separation from I, as in fact happened. She was absolutely determined to obtain her own independence from the conjugal bond, by any means".

            "I pointed out to her that this attempt to emancipate herself from family ties could involve her in much more serious obligations... Her way of thinking seemed completely muddled to me. Nevertheless, during the whole of the period before the marriage, she repeated her views to me in unmistakable terms. The very morning of the wedding, she reemphasized to me in a telephone conversation that if she was going ahead with the marriage - which she didn't really want but which she could not withdraw from - it was with the mental reservation of not assuming but excluding the duties of religious marriage, that is, indissolubility, fidelity and offspring".

            "Even though E's decision seemed confused to me, as I have said, I rendered it plausible in view of the pressure of the restricted atmosphere in which the girl lived, and the fact that she could see no other way of getting out of the situation in which she had gotten herself".

            "In the telephone conversation we had on the morning of the wedding, E once again showed that her mind was made up to look for the best way of being able later to be united to me".

            "I didn't agree that E should get married and told her so as far as I could. It seemed to me that the girl was running into much more complicated situations".

22.       As the first rotal Turnus noted in sending the case to ordinary second examination, "The Petitioner is not consistent in the facts she presents. She suggests some things that are psychologically absurd. True and false are found mixed in her statements, and one has therefore to be prudent in weighing them up". VS, on the contrary, sounds sincere; there is nothing artificial about his testimony; and the very fact that he contradicts the Petitioner in several points, tends to exclude the possibility of collusion, and to strengthen his credibility at least. She had asserted that, "after a couple of weeks, I started again having sexual relations with my lover", but he says that they had no relations for the rest of that year. She claims that it was in convalescing from attempted suicide that "I decided to break with both men", while, according to him, the break between them occurred precisely before the attempted suicide, and one gets the impression that it was his decision more than hers. She in fact gives no plausible explanation for her attempt at suicide; but it may well have been due to VS's reaction in not wishing them to continue their affair.

23.       Paradoxically, in any case, as he describes his reactions - which mirror ours - to the Petitioner's reasonings, he helps to convince us that those reasonings really were hers.

24.       At this stage we can say that her alleged "causa contrahendi" (to get away from home) appears as more strongly corroborated. We do not have to be convinced by its logic (to gain freedom to go off with the man she loved, by marrying the man she did not love!); it is enough to establish that this really was her way of thinking.

25.       Similarly, her "causa simulandi" now also emerges in greater clarity: her love for another man, going back for years and intensely present at the moment of the wedding; and her intention to unite herself to him as soon as possible. To our mind, the Acts, overall considered, bear this sufficiently out. After VS's evidence, certain earlier statements of other witnesses - besides MB - are now seen to carry greater force. For instance, her father: "When she was under intense care [after her attempted suicide], my daughter let escape the name of an another man, precisely of her office boss. When I think of it I still shudder and I wish I could forget it all; for in other words this daughter of mine had been in love with this other man for years back and still loved him" (cf. also pp. 53, 55, 57, 63).

26.       We have remarked that the Petitioner's ideas on marriage seemed not only erroneous but also confused. Along with her father we find it difficult to grasp the logic of her idea of faithfulness: "regarding married fidelity, she had the strangest ideas. Fidelity for her was meant just for the man that the woman had chosen and loved, whether this was her husband or not"; but in any case it is clear that she excluded it from her marriage with the Respondent, although she says she would have lived it with VS: "the real reason why I excluded indissolubility and fidelity was above all because I was very much in love with my boss. With my boss I would certainly have undertaken an indissoluble marriage, with a commitment to faithfulness".

27.       We should also mention the fact of her determined character. The Respondent testifies to this: "I admit that E had me at her fingertips, and played with me as she liked. She was a strong a determined personality: the type that knows what she wants"; her mother confirms this; and her sister affirms: "One should bear in mind that E was no weathercock; she was determined".

            One cannot expect to find great logic in the plans and decisions of a stubborn but confused person. Like the previous Turni we consider that her decisions showed a notorious lack of objective logic; unlike our colleagues, the evidence has convinced us that they really were hers.

28.       Her exclusions are clear and corroborated: this is sufficient to give moral certainty as to the nullity of the marriage. Even if her motivation were still held to be obscure, confused and apparently illogical, this is not sufficient to rebut the evidence of positive exclusion.

29.       "Faced with the difficulty of associating two bonds", as the Sentence of the Vicariate notes, we feel that the Petitioner clearly chose to exclude any true conjugal bond with the Respondent while, within her own peculiar logic, it seems that she did want a marital bond with her boss.

            It should not be forgotten either that she did not wish to have a child by the Respondent, though she later had one by VS: a fact that can give added support to the view that she refused to give to the Respondent the conjugal status and rights which she had reserved for VS.

30.       The doubt in fact is whether she gave Respondent any conjugal rights at all. It is arguable, in other words, that her exclusion of "fides" amounted to total simulation. But, since this is not the grounds presented...

31.       It would not seem right to end without a further word. The Advocate for the Petitioner received some blame from one of the rotal Turni because of (as it was thought) revealing the content of a Decree of the Turnus to the wits, AC and SB. The subsequent instruction of the case has made it quite clear that the Decree, having been sent to the Petitioner, was shown to AC by her father in order to have the Latin translated; and that the Advocate had no part or blame in this.

32.       Having therefore considered all the aspects of the law and the facts, we Auditors of this Turnus... answer the proposed doubt:

            "IN THE AFFIRMATIVE"

            that is, the nullity of the marriage has been proved, in the case before the Court, on the grounds of the exclusion of the "bonum sacramenti" and the "bonum fidei" by the Petitioner.

            Given in the Tribunal of the Roman Rota, October 25, 1990.

            Cormac BURKE, Ponens

            Thomas G. DORAN

            Kenneth E. BOCCAFOLA