cormacburke.me.ke

[English version: Forum, 2 (1991) 2: 106-124]

I. THE FACTS

1.         Fulvio V and Gloria A fell in love in 1969 when both were attending high school. He had been baptized in the waldensian community, but gave up the practice of religion in late adolescence. While she came from a very religious Catholic background, her family circumstances were not easy since her mother was an alcoholic, and her father, insisting that she take care of her mother, opposed the relationship between the two young people. Family life becoming more difficult, she left home for six months in 1974 during which time she and Fulvio lived together.

            Their relationship as an engaged couple, protracted because of the university studies of both, was not always peaceful. It seems that she also had other suitors. In any case, after a dispensation of mixed religion had been obtained, as well as the consent of her father, they were finally married in - Church, on July 22 1978. Their married life, though without children, was happy at the start; but they broke up in 1983 when he discovered that she was carrying on an adulterous relationship.

            Fulvio later got to know another Catholic girl whom he wished to marry. Therefore he presented to the Tribunal of X an accusation of the nullity of his marriage with Gloria on the grounds of the exclusion of the "bonum sacramenti" and the "bonum prolis" by himself. The case was duly instructed, and on October 29 1987, the Court gave a Negative decision on both grounds. The Petitioner appealed to the Regional Appeal Court which, on March 30 1989, after a supplementary instruction, declared the marriage null on the one grounds of exclusion of the "bonum sacramenti".

            According to the norms of c. 1682, § 1, the case was transmitted to our Apostolic Tribunal where the Petitioner appointed his own Advocate. On June 21 1990 the doubt was concorded according to the formula, "Whether the nullity of the marriage is proved, by reason of the exclusion by the Petitioner of the «bonum sacramenti»"; the Respondent remitted herself to the justice of the Tribunal. No new instruction was made, and when the Advocate for the Petitioner finally presented his Brief, he limited himself to saying that he made his own the conclusions of the Court of second instance. Having therefore studied all the Acts, and also read the observations of the Defender of the Bond, we must reply today to the proposed doubt.

II. THE LAW

2.         S. Bonaventure teaches: "in matrimony there is something permanent - the bond - through which man and woman are bound together, however much they may be separated externally" (Sent. Lib. IV, d. 27, art. 1, q. 1, IV p. 676).

            The bond of matrimony is perpetual by nature. If we take the case of a person purporting to marry who, in his consent, does not accept this perpetual nature of the bond, it is clear that he does not consent to marriage. His consent is invalid, i.e. ineffectual from the point of view of constituting marriage.

3.         Now the situation is obviously different if the case is that of a person who does accept the perpetual nature of the marriage bond, but is already resolved, if certain circumstances arise, to ignore the obligation created by this bond, to separate from his or her spouse, and - if the civil law permits - to contract another union which, however invalid and immoral in his or her understanding, would be "legal" before the civil law. Such a person does not exclude the indissoluble nature of the bond, but simply intends to violate the moral obligations it induces.

            "In the case of the person who knows that matrimony is quite indissoluble, one must distinguish between the intention to restrict the matrimonial consent given, and the intention of separating from one's spouse, seeking a civil divorce and entering a new civil marriage. In the latter case, the will of having recourse to civil divorce, while the sacred bond retains its force, is equivalent to a mere intention of abandoning one's spouse" (c. Bonet, May 10 1954: SRRD, vol. 46, p. 388).

4.         Therefore the intention of dissolving the marriage must not be confused with the intention of maintaining conjugal life only for a time, and not to the end of one's days. It is one thing not to accept an obligation; it is another to intend not to respect it in certain circumstances. So one has to distinguish carefully between the person who does not accept that the marriage bond is indissoluble, and the one who accepts that it is indissoluble but means, if it suits him or her, to violate the obligations that indissolubility originates. What invalidates matrimonial consent is not the intention to violate the obligations that derive from an essential property, but the positive exclusion of the property itself.

5.         Two quite distinct approaches are involved. One amounts to: "I will accept you in marriage as my true wife or husband. But I will leave you if things work out badly and, if the civil law permits it, contract a new "marriage", even though I know it will not be really a marriage before God and my own conscience". The other approach is: "I will not accept you as my true wife or husband, but only as my temporary or conditional partner - even though I realize this is contrary to the nature of a true marriage, or at least contrary to the obligations that, by my words of consent, I profess to accept". In the first instance the person's present intention is to contract a true marriage, even though it is accompanied by a readiness to act immorally in the future. In the second, his or her present intention is to enter an invalid matrimonial contract.

6.         St. Thomas' teaching, "matrimony is never found without inseparability" (Suppl., q. 49, art. 3), leads us to the same conclusion. The person who accepts only a soluble "marriage", with a temporary bond, does not contract marriage at all. But it is different if he accepts marriage as nature presents it, in its indissoluble character, although with the intention, in certain circumstances, of taking advantage of civil law dispositions which let him "break" the bond, in its civil effects, so that he can "marry" again civilly. At the moment of rupture, as is clear, he would violate a moral and conjugal obligation of fidelity. At the moment of consent, however, he would not have excluded indissolubility, and his marriage could not be declared null under a plea of the exclusion of the "bonum sacramenti" (possibly it could be declared null under the exclusion of the "bonum fidei"; and then the point of our considerations would be that, in the cases where the facts seem to correspond to those we are considering, nullity should be sought on the grounds of the exclusion of the "bonum fidei" and not of the "bonum sacramenti").

            So, when one reads, "that person contracts invalidly who reserves to himself the right to seek civil divorce" (SRRD, vol. 32 (1940), p. 94), it must be observed that this scarcely analyses the matter in sufficient depth. Bonet, in the sentence quoted earlier, was more precise when he added: "Certainly, from the fact that someone reserves to himself the faculty of seeking a civil divorce, an argument of restricted consent can be developed, but each case is to be decided individually, taking all the circumstances into account" (SRRD, vol. 46, ib.).

7.         "Those who simulate do not wish just to break up the "consortium vitae" or common life together, while leaving the bond intact; they want, as far as is in their power, to dissolve the bond itself" (c. Grazioli, Feb. 16, 1932: SRRD, vol. 24, p. 68). To dissolve the bond, as far as lies in their power: that is precisely what simulators must have in mind. Their intention must be not just to violate the moral or even legal force of the bond, but to nullify it, to terminate its very existence.

8.         "The expressed intention of «recovering one's freedom» if the marriage does not work out well, does not necessarily imply a dissolution of the bond" (c. Raad, Jan. 26, 1978, n. 5). "It must be clear that the simulator intended to free himself from the bond itself, so as to be able to enter another marriage, the mere intention of separating not being sufficient" (c. Pinto, March 19, 1978: cf. SRRD vol. 73, p. 202).

            Or, as we read in a decision of Oct 11, 1969, c. Ewers: "Perpetuity is excluded by the party who reserves to himself the right, even hypothetically, to dissolve the bond and to recover full freedom" (SRRD, vol. 61 (1969), p. 942). Exactly; the simulators' intention must necessarily be to dissolve the bond, and to be restored to a position of full freedom. Full freedom can here only mean the freedom to contract a valid marriage, as if he or she were not bound by any previous bond. For a person who believes in the natural truth of the principle of indissolubility, full freedom to marry validly can only be recovered by the death of one's spouse; alternatively, such freedom can be retained if a person is prepared to simulate consent by the exclusion of indissolubility, thus entering an invalid marriage.

9.         We might add that the idea that the conjugal bond is for life comes naturally to the human mind. It is not accurate therefore to speak of indissolubility as a "Catholic" principle; it is a principle of the natural law which appears, indeed as difficult, but also as true, powerful and worthwhile to everyone who reflects. That is why disbelief in sacramentality or in "catholic marriage" does not of itself prove exclusion of indissolubility. Man has a natural belief in marriage, as such; and this belief is reflected in the words of consent, which normally express his natural awareness that the spousal self-gift must be total, also in terms of time. "Sexuality is realized in a truly human way only if it is an integral part of the love by which a man and a woman commit themselves totally to one another until death. The total physical self-giving would be a lie if it were not the sign and fruit of a total personal self-giving, in which the whole person, including the temporal dimension, is present: if the person were to withhold something or reserve the possibility of deciding otherwise in the future, by this very fact he or she would not be giving totally" (John Paul II: Familiaris Consortio, no. 11).

10.       Divorce, which was not recognized in many countries earlier in this century, has now been declared legal in almost all civil systems. While it is true that the civil law can gradually influence the moral values of citizens, it is also clear that personal and intimate convictions do not automatically or even easily follow changes in the civil law. The principal norms and values proposed by the natural law are too deeply inscribed on people's hearts (cf. Rom 2, 15), to be easily overwritten by positive law. Personal conscience tells each one that not everything that is legal is moral. In matters rooted in human nature people do not take their intimate convictions simply from outside sources.

11.       Almost everywhere today the civil law is "permissive" in the sense that it allows divorce and recognizes a subsequent "marriage" as civilly valid. Catholics, no less than other citizens, are aware that they can always "take advantage" of these civil law dispositions, if they wish. That they are prepared to do so shows an objectively immoral disposition, but does not of itself prove the exclusion of indissolubility.

            Since people today have full freedom - within the civil law - to remarry, during their spouse's lifetime, no special intention is necessary to "retain" that freedom; it is always available. From the point of view of canonical jurisprudence, the freedom that the simulator is interested in, is freedom - in his own internal forum - to enter a new union; and he retains this freedom by deliberately choosing a first union that is soluble, not just before the civil law, but in itself.

12.       Simulation at the moment of consent involves a person in the grave dishonesty of internally contradicting what he or she solemnly professes on the outside. Moreover, for all those who have a minimum of Christian formation (and this they can acquire at least from pre-marriage instruction), it means the serious sin of consciously embarking upon an invalid marriage: in other words, of deliberately taking up an immoral sexual relationship.

13.       Those who entertain deep misgivings about the future happiness of their marriage, and wish to guarantee a "way out", have two alternatives. One is to lie and simulate at the moment of consent, and thus immediately enter an invalid marriage. Faced with the gravity of this, many people may well prefer the other alternative, which is to enter a valid marriage, with the immoral intention, if it turns out unhappily, of breaking conjugal life, separating from their spouse and uniting themselves civilly to another person. When the choice is between the present certainty of living in an invalid marriage, or the future possibility of so doing, many people will prefer the latter. If this is in fact their choice, there is no positive act of exclusion of the "bonum sacramenti" at the moment of consent.

            "The law favoring divorce does not of itself much favor a positive intention against indissolubility. Those marrying are often satisfied with a law which keeps a way open (however wrong) of recovering their freedom, if things work out badly. This way of thinking remains in the area of error, and does not affect consent" (c. Agustoni, May 27, 1980: ARRTD, vol. 72, p. 391).

14.       A person - Catholic or not - may have professed a pre-matrimonial intellectual position favorable to divorce. Even if it is shown that this was a deeply held ideological error (and this is a point that must be demonstrated), it does not follow that he or she, in giving matrimonial consent, positively willed to be linked only by a soluble bond to the spouse he or she was choosing. Both the radical quality of the error, as well as its translation into a positive act of the will actually applied to the consent given, have to be proved; such proof is not easy.

15.       The task of a Court in matrimonial cases is not to require evidence that a marriage is valid (there is a general presumption - c. 1060 - that marriages are valid, and this presumption will only yield to proof to the contrary), but to consider whether sufficiently compelling evidence of its invalidity - such as to generate moral certainty - is forthcoming from the Acts. If it is not, then the presumption of validity stands, and the Court must respect it.

16.       The judicial and the ecumenical spheres are evidently quite distinct. Jurisprudence must be guided, not by considerations of ecumenical expedience, but by theology. Catholic theology has always held that a marriage between two Protestants, even if they do not believe in the sacramentality of marriage, is in fact a sacrament. This is one of the difficulties facing the recent view of some, which demands explicit faith in, and acceptance of, the sacramentality of matrimony, for valid consent. This opinion, which would seem to be without support in theological tradition or magisterial teaching, also has (as it happens) very negative ecumenical implications, for its acceptance would mean that all the marriages of our separated brethren, as well perhaps as all mixed marriages, would have to be considered invalid unions, in the eyes of the Catholic Church.

III. THE ARGUMENT

17.       With the Judges of first instance (71; 78), we would draw attention to the total contradiction between the parties. The Petitioner claims: "non accettai di legarmi indissolubilmente a Gloria" (4); "io non intesi accettare il vincolo cattolico ma intesi legarmi fino a quando le cose fossero andate bene tra noi" (17/4); and affirms that she was aware of his intentions (ib./DR). She vigorously denies that he had "neppure in modo vago" shown any attitude or intention contrary to indissolubility (42-43/4), or to offspring (43/5). In second instance, she confirms her first instance testimony (85). This contradiction makes it necessary to pay special attention to the credibility of the parties, and to the logic and coherence of their evidence.

18.       The causa contrahendi: the Petitioner is quite specific and clear about it. After 8-9 years of relations, he married because "ero molto innamorato di Gloria" (4; cf. 15 in medio). He repeats this in second instance: "Io sposai Gloria per amore" (95/11; cf. 90/4/5).

            That he loved her very much is confirmed time and again by witnesses: his mother: "Fulvio era innamorato, attratto dalla bellezza di lei" (25/2). LC, a friend of the Petitioner, "Fulvio era molto infatuato di lei" (37/2). His sister, Christiana: "Fulvio amava molto Gloria... era innamorato e vedeva solo la fidanzata" (101-102/4; cf. 21/2; 35/4; 97/4).

19.       Regarding the causa simulandi (which, it is scarcely necessary to recall, has to be proportionate to the gravity of the act of exclusion), his libellus gives three motives which together would have constituted it: "Gloria mi appariva incerta sull'opportunità del nostro matrimonio... a anch'io avevo seri dubbi sull'esito di un'eventuale nostra unione per vari motivi: anzitutto per la malattia della mamma di Gloria, che temevo potesse trasmettersi a lei e ad eventuali figli (che infatti non volevo), in secondo luogo per le incertezze di Gloria che mi facevano seriamente dubitare sulla realtà e stabilità dei suoi sentimenti verso di me; infine, per la differenza di religione" (3-4). Here the (alcoholic) condition of the Respondent's mother is put forward as the main reason (anzitutto) for simulating. As regards the difference of religious belief, he does not explain why this should cause an act of unnatural exclusion. It is to be noted that in his later evidence, these arguments do not appear at all.

20.       In second instance, he lists a different set of reasons for doubting the outcome of the marriage: "in me sorsero dei dubbi soprattutto per due motivi: il primo era l'ostilità degli A, soprattutto il padre... che non voleva lasciarla sposare con me... Il secondo e più grave motivo, che forse non è apparso chiaramente nella mia prima deposizione, è che io avevo saputo prima del matrimonio... da Gloria stessa che ella era stata chiesta in moglie da un altro giovane..." (90/4/5). As regards the alleged resistance of her family (who eventually consented to the wedding: 17/4), it is not clear why this temporary opposition should have made him doubt the success of the marriage, nor does he advance any reasons.

            In any case, he has now departed from the order of motives presented in his libellus. His hesitations are no longer caused "anzittutto" by health dangers arising out her mother's sickness, but rather - as "il più grave motivo" - by the fact that he had had a competitor for her affections during the year or so before the wedding. Again he does not make it clear why this should have made him uncertain about the quality of her love. It is not normally a matter of great surprise to a man to discover that the woman he loves may have had other suitors; and if she chooses him in the end, he rather feels happy and confirmed in love. He himself testifies that she made her option precisely for him, and that he had the logical reaction: "mi disse, "io ho fatto la mia scelta" e la scelta era per me, del che fui contento evidentemente" (91/4/5).

21.       In his libellus he had said that "le incertezze di Gloria" were the reason for his own uncertainty. Presumably he wishes us to find proof of her alleged uncertainty in the letters from her former suitors which he produced during the first instruction (51-61). But here we must note: a) in his libellus he said he had discovered these letters only after their separation (3 in fine); b) the most pertinent aspect of the letters is surely the complaints of her former lovers that they are uncertain of her love for them (52 in initio; 53; 54; 55 in initio; 56 in initio; 57-58; 59 in medio; 61 in medio). Such complaints are understandable if she were about to make her "choice" for the Petitioner.

22.       The second instance judges attach a lot of importance to his affirmation, "Io quindi avevo qualche motivo di incertezza nello sposare Gloria, ma non mi era difficile superarli tenendo conto che io ritenevo che, qualora non fossimo andati d'accordo, potevamo separarci" (91/5). But their conclusion, "le circostanze del suo matrimonio lo portarono ad ipotizzare un futuro deludente" (127), does not accord with his love and what he had testified a moment later: "in quel momento non desideravo divorziare e speravo che tutto andasse bene" (92/6). What strikes us here is his confidence that things would work out. His mother confirms this, saying she warned him against the marriage, but "egli mi rispose che era fiducioso verso il futuro..." (26/4).

            We can accept that he had some fears that the marriage might not work out. But these would seem, at most, to have been slight; probably no more than the normal misgivings that anyone marrying may have.

23.       He complains that the first instance Judges gave more credibility to the Respondent than to him. But, with the first Sentence (74), we find his credibility under strain when he claims that, although he told his parents and several friends about his exclusion (17/DR), he did not speak with the Respondent about it: "Non ci fu un discorso del genere tra me e Gloria" (17/4): "Un discorso teorico [sull'indissolubilità] tra noi due prima delle nozze non c'è stato" (16/3). The strain increases when he adds: "Gloria però sentì i miei discorsi con gli amici e quindi potè rendersi conto delle mie intenzioni e di fatto non reagì" (17/DR). She energetically denies this: "E' semplicemente falso... Io, se avessi sentito discorsi del genere, mi sarei ben guardata dallo sposarlo" (43/DR). If she had heard, it certainly seems unlikely that she should not have reacted, inasmuch as their pre-marital relationship was already filled with arguments, as he himself testifies: "la nostra relazione fu abbastanza litigiosa" (15/2), which is confirmed by his parents (25/2; 29/2) and others (32/2; 37/2).

24.       He gives a list of six witnesses he says had pre-marital knowledge of his intention (17/DR). As we examine their evidence, however, we note: a) his parents, at most, speak vaguely about the "possibility of divorce", while three of his other witnesses specifically deny having had any conversation with the Petitioner about indissolubility; b) the burden of the witnesses' evidence remains open to the interpretation that he was speaking of an hypothesis of simple separation, in the event that the marriage broke down, rather than expressing an intended exclusion of indissolubility.

            JB, a friend of his: "Non ebbi mai occasione de toccare con Fulvio il discorso dell'indissolubilità del matrimonio, nè prima nè dopo le nozze... Prima delle nozze non ebbi mai occasione di sentirlo fare previsioni sul possibile fallimento della loro unione" (32-33/4). AR, this last witness's husband and equally a friend of the Petitioner's: "Non ebbi mai occasione di discutere con Fulvio... sull'indissolubilità" (35/3).

            These two witnesses however do testify to some comment of the Petitioner, with regard to the possible failure of the marriage. AR says that Fulvio told him, in his wife's presence, "che lui si sposava perchè Gloria gli piaceva, però... se poi la loro unione non avesse funzionato, lui se ne sarebbe andato riprendendo la sua libertà" (35/4). The witness's evidence does not make it clear whether this was said before or after the wedding; his wife however is quite specific that it was said afterwards: "Ricordo invece che dopo le nozze, quando tra loro già l'unione aveva momenti di crisi, Fulvio passando nel nostro negozio disse che se le cose tra loro non fossero andate bene, lui prima o poi si sarebbe separato..." (32-33/4).

            Here we have two of the Petitioner's main witnesses, friends of both parties for almost ten years before the wedding (34/2), who both testify that the Petitioner never discoursed with them about indissolubility, but that (after the wedding, it would seem) he did speak of his intention in the case of a marital breakdown: "se ne sarebbe andato"; "si sarebbe separato"... It appears clear from this that, in the mind of the witnesses, the Petitioner's affirmations about "andarsene" or "separarsi" did not represent a discourse about indissolubility; it would therefore seem that they understood him as expressing a simple intention of separating from his wife, in case of a breakdown, rather than any positive exclusion of the unbreakable nature of the marriage bond.

25.       This fits in with what HG, a waldensian friend of the Petitioner, says: that Fulvio, before the wedding, expressed some doubts "e concludeva dicendo che di fatto c'è poi il divorzio e se non riusciamo ad andare d'accordo ci separiamo" (22-23/4). We also take note of the evidence of LC, a friend of his. After he has stated, "Fulvio era molto infatuato di lei" (37/2) and, "Non ebbi mai occasione di discutere con Fulvio... sulla indissolubilità", he adds: "Egli mi diceva - apparently before the marriage - che se le cose fossero andate male, lui se ne andava e avrebbe rifatto la vita a modo suo" (38/3-4).

26.       Finally we have the non-conclusive evidence of his parents. His mother: "egli mi rispose che era fiducioso verso il futuro, però per male che fosse andato c'era sempre la possibilità del divorzio" (26-27/4). His father testifies more to his own ideas on divorce, than to those of his son, saying simply that the Petitioner tended to agree with him: "Finii col dirgli io stesso: «Meno male che c'è sempre la possibilità del divorzio e quindi di riprenderti la libertà». Fulvio non si oppose a questo mio discorso ma dimostrò di condividerlo" (30/4).

27.       We now come to consider the question of his protestant outlook. In fact, his efforts in second instance (through his own new deposition and two further witnesses) to strengthen his argument of exclusion are essentially built around his claim to have retained his waldensian mentality. We do not have to question this point, in order to observe the following:

            a) His waldensian upbringing would not seem to have been very deep. AR says: "Fulvio era valdese... piuttosto indifferente" (35/3); LC: "era valdese ma non practicava". The first instance Judges (74) conclude that the conversation he had with his pastor in or around 1968 shows a superficial grasp of protestant principles on his part: "ricordo che il pastore G. mi spiegò che per la nostra Chiesa non esiste un'indissolubilità como viene presentata dall Chiesa Cattolica... Quindi per noi era ammesso il divorzio" (16 in medio). This conversation shows that the Petitioner was not even aware at that time of the precise waldensian teaching on marriage and indissolubility ("il pastore... mi spiegò"). This of course demolishes any argument to support the hypothesis of "error radicatus".

            The second instance Judges say that in consequence of his waldensian belief, marriage for him "era sempre stato un atto con valore civile che seguiva le leggi civili, divorzio compreso" (118). But, applied to the present case, this is an ambiguous argument, and even one that tells against the Petitioner. If the civil law was the norm for a waldensian conscience, then through his formative adolescent years and right up to 1974, his ideas should have followed the Italian civil law which did not allow divorce.

            If he had in fact strong religious-based ideas in favour of divorce, it is striking that he never mentioned them to the Respondent, knowing that she came from a very different religious background. The Acts certainly lend some colour of likelihood to her assertion that, "Fulvio era un indifferente verso i problemi religiosi" (42/3).

            b) In any case, a religious (or irreligious) outlook cannot be mistaken for, and does not constitute proof of, a positive act of the will.

            In second instance he testified: "Da qualche anno in Italia c'era il divorzio e io lo accettavo, avevo anzi votato a favore. Quando mi sposai questo concetto era presente in me, io non avevo avuto nessun motivo per ricredermi e anzi... avevo qualche motivo di incertezza che tanto più rafforzava il mio pensiero divorzista" (92). It is clear that he is speaking here on the conceptual level (questo concetto... il mio pensiero divorzista...). The testimony of his uncle, TV, "Con me Fulvio esprimeva qualche sua incertezza: riconobbe che era utile la presenza del divorzio in Italia. Egli non lo voleva certo ma non lo escludeva" (99/6), does not help toward providing the necessary proof of how his intellectual errors (insofar as they were present) led to a positive act of the will applied to his own concrete marriage.

28.       The Judges of second instance argue that since "il matrimonio-sacramento" is not accepted by the Waldensians, "dobbiamo ammettere che" - in the case of the Petitioner - "non c'era e non poteva esserci alcuna volontà di accettazione dell'indissolubilità" (119). It is difficult to understand how they can reach this conclusion unless they erroneously regard indissolubility as a property of sacramental marriage alone and not, as it is, of every true marriage, whether between baptized persons or not.

29.       The Petitioner's advocate laughs at the hypothesis that the Petitioner was "converted" to acceptance of Catholic doctrine on indissolubility. So does the second instance Court, finding it "del tutto inverosimile" that he should have accepted indissolubility, which they describe as "il principio cattolico della indissolubilità" (124).

            Now the hypothesis of his "conversion" is unnecessary. The judges are following a red herring when they doubt whether he had "respinto il suo errore" (125). To marry validly, he did not have to do so. A marriage entered on by a person who "believes" in divorce can be perfectly valid. It depends not on his having been converted from his divorcist ideas, but on his not applying them - with a positive act of exclusion - to the actual marriage he is entering. In other words, it is sufficient if, in his consent, he does not simulate: i.e. if, in accordance with the words pronounced, he actually accepts the indissoluble character of the marriage he is here and now contracting. The issue is not did he change his ideas, but did he mean what he said.

30.       We are perplexed by the Judges' statement, "non possiamo negare che è inverosimile che egli respingesse positivamente la possibilità di un divorzio" (119). The law, we repeat, presumes the sincerity and validity of the positive acceptance of indissolubility which is expressed in the act of consent (cf. c. 1101, § 2). And we reemphasize that it is not the sincerity of this act, but its possible insincerity, that calls for proof.

            This is why we are truly amazed when the Judges state: "L'affermazione è inverosimile e sfiora il ridicolo nell'immaginare che un contestatore agnostico, cresciuto con mentalità valdese possa riternersi disposto ad accettare il contenuto del matrimonio cattolico senza alcuna affermazione sua in proposito" (120). They repeat this: "I fatti sono precisi; non c'è nessuna affermazione di accettazione della indissolubilità da parte del V." (121). But this is absolutely untrue. The Petitioner, by uttering the words of marital consent, did make a very explicit statement to the effect that he accepted the permanent nature of the bond between husband and wife. If he now claims he was lying, he must prove it.

31.       The second instance Court wants to make a main argument out of the fact that in the pre-marriage examination of the parties the parish priest did not record any answer of the Petitioner to the questions about having no intention against indissolubility or offspring. Whatever about the carelessness of the priest here, the pre-marriage declarations have little importance compared with the explicit acceptance of the essential properties of marriage contained in the formula of consent.

32.       The Judges correctly state: "La presenza dell'errore facilita, può far arguire un voluto rifiuto della indissolubilità, ma non è sufficiente. L'essenziale è verificare se quanto pensava l'attore, cioè quanto era presente nella sua intelligenza, si è veramente tradotto in un atto di volontà" (125). We agree; but this is precisely what they do not verify. Assuming - rather than proving - that the Petitioner's error was deeply rooted (which is not clear), they further assume that it was so deeply rooted that it determined his will. They state, "Siamo di fronte ad un errore pesantemente gravante su un positivo atto di volontà" (131). We find this statement gratuitous, and not borne out by the evidence.

33.       The Petitioner felt he had a serious complaint to make against the first Sentence: "mi stupisco che (the Respondent) sia stata creduta solo con la sua deposizione, senza alcun testimone di quanto ella ha dichiarato. Questo a me sembra la pecca più grave di tutta la sentenza" (96); to which the second instance Judges comment: "ed ha ragione" (128). But such an analysis is deficient. It is not that she was believed; he was not believed to have proved his case; because of his own contradictions and because of the weak evidence given by his supporting witnesses. The onus is on the one who affirms... Throughout the Acts, we find the Petitioner testifying more to not having renounced a pro-divorce mentality, than to having applied a positive act of exclusion to his own marital consent; in this way he is clearly making a poor case for himself.

34.       The second instance Judges felt that if the Judges of first instance had possessed a more sensitive ecumenical spirit they might have reached a better sentence (133; cf. 119). While ecumenical considerations cannot be allowed to impinge substantially on judgments concerning the nullity of marriage, it is true, as we pointed out in the Law Section, that the views of the second instance judges in this case lead logically to the thesis that all marriages between Protestants are invalid. This thesis can scarcely be considered very ecumenical; fortunately it is not correct.

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

            "IN THE NEGATIVE"

            that is, the nullity of the marriage has not been proved, in the case before the Court, on the grounds of the exclusion by the Petitioner of the "bonum sacramenti".

            .....

            Given in the Tribunal of the Roman Rota, May 2, 1991.

            Cormac BURKE, Ponens

            Thomas G. DORAN

            Kenneth E. BOCCAFOLA