cormacburke.me.ke

[English version: Studia canonica 27 (1993), 479-486]

I. THE FACTS

1.         Maria D and Colm G first met in 1965. After they had been going together for some months, the man embraced the Catholic faith. Then the girl became pregnant and, at the urging of the parents of both, they were married on August 12, 1967. She was then 18 years old, he was 20. Their married life together, from which three children were born, was happy at the start; but then declined with infidelities on both sides. In 1979 Maria made Colm leave the home for good.

            On July 2, 1984 Maria asked the Regional Tribunal of Dublin for a declaration of nullity of the marriage on the grounds of lack of due discretion in both parties. The instruction of the case was made up of evidence given by the parties themselves and six witnesses; a psychological report was also obtained. A first instance Sentence, handed down on October 1, 1988, was Affirmative as to lack of due discretion in the Petitioner, and Negative as to lack of due discretion in the Respondent. Appeal was made to the National Appeal Tribunal of Ireland which on June 23, 1989 pronounced a Negative Sentence on both grounds. The case was then sent to this Apostolic Tribunal where, after gratuitous legal representation had been granted to the Petitioner, the instruction was completed with further examination of both parties. Certain defects in the evidence sent, especially the absence of the notary's signature, caused some delays. Sanation of the Acts - ad cautelam -was asked of the Dean of the Rota and granted; and so today we must reply to the doubt concorded on October 10, 1991: "Whether the nullity of this marriage has been proved on the grounds of a grave defect of discretion of judgment in the Petitioner".

II. The Law

2.         "They are incapable of contracting marriage... who suffer from a grave lack of discretion of judgment concerning the essential matrimonial rights and duties which are to be mutually given and accepted" (c. 1095, 2º).

            In this case, heard under the above canon, the Judges of first instance came to an affirmative decision on the grounds that the Petitioner "did not exercise the minimum of maturity of judgment in her marital consent" (Acts, p. 59). Although precedents can be found also in rotal practice for considering "immaturity" or "lack of maturity" as grounds for consensual incapacity, the use of the term "maturity" has its difficulties, as can be gathered from the fact that the Pontifical Commission for drafting the new Code, in considering a schema for what was to become c. 1095, 2º, rejected a formula according to which "maturity of judgment" would have been an alternative expression for "discretion of judgment" (cf. Communicationes, 1975, pp. 46-48).

            The new Code in effect proposes a precision of juridical terminology which sound jurisprudence should be careful to follow. A recent rotal Sentence makes a point regarding petitions of nullity under c. 1095, 3º, which has its application also to those heard under number two of the canon: "in present circumstances, that is after the promulgation of the new Code, one can no longer justify following the old practice - common in ecclesiastical Tribunals under the former Code - of defining psychic incapacity for marriage in "meta-juridic" terms: for instance, on grounds "of immaturity", "of psychopathology", "of homosexuality", and so on" (c. Stankiewicz, Bonaëren Sentence of Feb. 27, 1992, n. 4).

3.         A first objection to the term "maturity" is its vagueness; it offers no precise standard of measurement. Furthermore it is misleading, for it suggests a wholeness that can always be shown to have not yet been attained. Since Christianity holds that we are all continuously in a process of maturing - "to the measure of the stature of the fulness of Christ" (Eph. 4: 13) - it follows that everyone is still in some way immature here on earth. Even secular psychology would agree that no one ever achieves perfect maturity; the fully mature person is ideal rather than real (cf. G.W. Allport: Pattern and Growth in Personality, New York 1961, 275ss). "Psychological and psychiatric experts themselves do not dare and are not able to define human "normality" or the maturity that is sufficient so that a person can be said to be "normal"." (c. Huot, July 5, 1973: RRD, vol. 65, p. 539).

4.         A stricter juridic analysis of the judgment necessary for valid matrimonial consent is facilitated by bearing in mind that we are speaking of something to be measured not absolutely but in terms of degrees. Maturity relates to growth and is measured by fullness; discretion relates to use, and is measured by competence. Maturity may imply perfection, discretion does not. On the contrary, the term discretion of judgment has been constantly used in jurisprudence to indicate a degree of maturity of judgment, proportionate to marital commitment itself. "Discretion adds, over and above the use of reason, a maturity of judgment proportionate to the contract to be celebrated, that is, in our case, to matrimony" (c. Sincero, Aug. 28, 1911: RRD, vol. 3, p. 450; cf. c. Sabattani, Feb. 24, 1961: vol. 53, p. 118; c. Pinna, Dec. 20, 1960, vol. 52, p. 592; c. Ewers, Oct. 30, 1971, vol. 63, p. 826; c. Pompedda, July 3, 1979: vol. 71, p. 388, etc.). This is unquestioned in rotal jurisprudence.

            Therefore, what is required in those marrying is not perfect discretion of judgment, but discretion proportionate to the importance of the matrimonial commitment. "But the cross of canonists lies in the determination of that proportion" (c. Ewers, June 26, 1971: vol. 63, p. 538).

5.         One can in fact distinguish a double aspect to the proportionality of discretion of judgment. If discretionary judgment must clearly be proportionate to marriage (and there its minimum cognitive content is indicated in c. 1096), it clearly must also be proportionate to the age of the contractant (and there the minimum age is indicated by c. 1083). In natural law a person of lower age might have sufficient maturity of judgment for valid consent; but ecclesiastical law establishes a presumption against. Contrariwise, once a person has reached the age indicated in the canon, the presumption must be that he or she possesses sufficient discretion for valid consent (cf. decis. Pittsburgen., c. Boccafola, Feb. 27, 1992, n. 8). The opposite can of course be proved; but proof must be provided.

6.         In short, once the legal age of marrying has been reached, a person's discretion of judgment cannot be said to be gravely disproportionate to marriage unless it is also gravely disproportionate to the discretion normal at his or her age. This is all the more important in that it is always possible to show that people emerging or recently emerged from adolescence are relatively immature - in relation, that is, to the maturity that longer experience of adult life brings. There is almost certain to be a considerable disproportion between the understanding of marriage shown by someone of 30 or 40, and one of 18 or 20. Yet the norm by which the adequacy of the latter's understanding is judged cannot be the degree of understanding attained by the former. It has to be proved that the latter had a discretion or maturity of judgment gravely below the normal at that age; which is only possible if he or she can be shown to have labored under some serious characterial or psychic defect. In his address to the Rota in 1987, Pope John Paul II warned against nullities being granted "under the pretext of a certain immaturity or psychic weakness in the contracting parties", and insisted that "An argument for real incapacity can be entertained only in the presence of a serious form of anomaly" (AAS 79, 1457-1458). A slight or moderate departure from the norms of proportionality are not enough to support a plea of invalid consent.

            "If there is no evidence of any illness or anomaly that can affect the faculties of intellect and will, then these are to be regarded as sound in their exercise, and the person is to be presumed to enjoy sufficient use of reason and a discretion of judgment proportionate to matrimony" (c. Boccafola, Jolietten. Sent. of Dec. 13, 1989, n. 13).

7.         The validity of consent, under c. 1095, 2º, must be judged in terms of the minimum maturity necessary. As is clear, only in extreme pathological cases could an invalidating lack of discretion or maturity occur at the age, say, of 25 or 30. But it should be equally clear that a condition of invalidating immaturity at the age of 16 or 18, must also be pathological; i.e. it must be the result of a gravely anomalous defect of personality development, totally improper to the age in question. The "relative" immaturity, characteristic of such an adolescent age, is no grounds for consensual incapacity (cf. c. Burke, Dublinen. Sent. of Nov. 7, 1991, n. 6).

            "A lack of discretion of judgment proportionate to matrimony, free from any psychiatric or psychological defect - simply because of some inadequate psychic preparation for the life-long fulfilment of conjugal duties - cannot be admitted" (c. Di Felice, May 26, 1981: vol. 73, pp. 290-291).

8.         One can argue from a lack of discretion to immaturity; but not necessarily the other way round. If one wishes to connect the two, it is clear that a grave lack of discretion shows a grave immaturity; but that a normal or average immaturity is no proof of a grave lack of discretion. In other words, "immaturity", even if proved, does not of itself demonstrate consensual incapacity. The immaturity must be pathological which, we repeat, is not possible unless it is totally disproportionate to the age.

9.         At times it is maintained that consensual incapacity can result from emotional imbalance or "affective immaturity", even in cases where the mind and will are quite sound. This argument does not seem to withstand examination. In a normal person, the emotions develop under the control of the higher faculties. If they are under- or over-developed, this is due not just to the weakness or strength of the emotions, but to the defect of the higher faculties in activating, guiding or commanding them. It is true that this defect of mind or will may be traceable to an affective or emotional condition, as to its cause; but that does not take from the fact that the mind and/or the will reveal a serious weakness, and it is to this deficiency of mind or will that consensual incapacity is properly to be attributed.

10.       Not every immaturity or every lack of discretion, even if proved and even if grave, incapacitates for marriage (a person may be immature in other respects - e.g. in the sphere of social life in general, or of professional responsibilities - but still not lack minimum discretion for marriage). Canon 1095 states that a grave lack of discretion incapacitates only when it relates to some essential right or obligation of marriage. In a case of consensual incapacity under c. 1095, 2º, the Court must therefore always address this question: which was the essential matrimonial right(s) or obligation(s) about which the person's judgment was gravely immature or lacking in discretion? (cf. C. Burke: "The Essential Obligations of Matrimony": Studia Canonica 26 (1992), pp. 392ss).

11.       Immaturity is shown not by the person who pledges his life in a single binding decision to marry, but by the one who feels chronically unable to pledge himself. It is the one who is too calculating, too closed in on self, to commit himself or herself maritally to another, who is immature, showing a lack of authentic human development and some significant disturbance of personality. Here again one observes how maturity and discretion do not necessarily coincide. Such a calculator is immature in the truest human sense, and yet he or she possesses a highly developed "discretion", i.e. a keen ability to weigh the pros and cons of a decision, and to decide (however selfishly) in full freedom.

12.       The desire to achieve "independence" from one's parental home is typical of a young adult, and no sign of abnormal immaturity. It is rather a normal factor that frequently enters into the decision to marry.

13.       Facing up to the responsibilites induced by a pre-matrimonial pregnancy is not a sign of immaturity; whereas recourse to abortion - the "easy" way out - arguably is. When a person decides to follow the moral law in such circumstances, this reveals an undeniable maturity of criterion and will.

14.       Christian anthropology would not allow that looking to others for guidance is always a sign of immaturity. Much of modern psychology seems to equate maturity with independence, or with self-reliance. From the christian viewpoint, self-reliance can be sign of immaturity, at least when it means a conceited refusal to seek advice from qualified sources. The matter may be different of course when it is a case of an older person who is pathologically unable to decide anything on his or her own.

15.       The soundness of an expert opinion normally appears from the fact that it is corroborated by the balance of the other evidence present in the Acts. When an opinion is unsupported by the Acts or in contradiction with them, a judge can seldom be justified in simply accepting the "peritia". If he cannot harmonise the differences, then it seems incumbent on him to seek further evidence, so as to be in a better position to resolve the case either in accord with the expert opinion or with the burden of the lay evidence. New documentary proof may be available; and further interrogation of witnesses on specific points would be particularly indicated. Another "peritia" may also be sought, but that is often the least helpful measure. The new opinion may disagree with the earlier, but also may agree. In the latter case (and very possibly even in the former), the substantial difficulty remains - that of harmonising lay and specialised evidence. What the judge specially needs in order to resolve this difficulty is better verification of the information available from the lay sources.

16.       Finally we would note a procedural norm that must be followed in first instance, at the very beginning in fact of a case: the need to consider whether or not the Petitioner's libellus shows a "fumus boni iuris". Litigation, as well as consuming time, raises expectations which are not always fulfilled, and often causes further and deep bitterness between the disputing parties. That is why an initial libellus is required, setting forth "the basis for the petitioner's right and at least in general the facts and proofs which will be used to prove what has been alleged" (c. 1504, 2º). The court must then consider the libellus, to decide if there is in fact a minimum legal basis to the claim, a minimum possibility of its being upheld after formal judicial investigation; if not, the libellus is to be rejected (c. 1505 § 2, 4º), for it is an abuse if cases are admitted to hearing which are certainly groundless. Concretely, in cases brought under c. 1095, unless the allegations brought forward give some grounds to consider that one may be dealing with a grave defect of discretion regarding some essential right/obligation of marriage (c. 1095, 2º), which moreover would point to some serious psychic anomaly, present at consent, and not just to slight or moderate pathologies or simple defects of character (cf. Addresses of Pope John Paul II to the Roman Rota, 1987 and 1988: AAS, vol. 79, 1457; vol. 80, 1181), then the libellus should not be accepted.

III. The Argument

17.       This seems to us one of those cases where there was so little basis to the Petitioner's plea that it probably should not have been accepted in the first place (cc. 1505, 2§, 4º; 1677, §1). We note the first reaction of the Judge Auditor to the libellus: he considered it "close to being rejected" (13).

18.       In brief summary we have a case where the Court in first instance gives an affirmative decision on the grounds of the immaturity of the Petitioner (Sentence, no. 6), without ever considering whether this, if proved, was gravely anomalous for her age, and without saying a single word relating the alleged lack of discretion to the essential obligations of marriage. After a second instance decision reversing the first, the new Instruction at rotal level confirms the basic normality of the Petitioner.

19.       The Petitioner's alleged immaturity. She nowhere says that she was more immature than any girl would be at 18. In fact she rather affirms the opposite, claiming that she was "an average 18 year old" (I, 15/5; ex off.). Asked how she would rate her maturity at the time of the marriage, she replies: "I was young but I don't think I was that immature really. I knew about marriage and I was prepared to settle down and raise a family" (I, 15/5). From her specific affirmation that she had no intention against the "bona" of marriage (I, 8/16), one can conclude that she felt she had a clear idea of what these properties involve. Asked in first instance, "What was your idea of marriage at the time?", she replies: "Just to be with him. I hoped I'd be a good mother" (I, 8/15). This answer seems to us to offer a simple view of marriage, proper to an 18 year old, including a positive acceptance of the prospects of motherhood.

            Further, far from pleading that she was too immature to cope with domestic life, she again tends to say rather the opposite. She kept house and had three children, in the midst of financial difficulties. When she speaks of these difficulties, she adds: "I believe I put up with the stress well" (I, 11/22); "I did my best to make it [the marriage] work" (I, 16/6). And when she is asked, "When would you say did you stop trying?", she insists: "I never stopped. Towards the end I tried harder than ever" (ibid. ex off. 8). Her mother confirms that the Petitioner "tried very hard to make the marriage work" (43/15).

            It is true that in third instance she seeks to contradict her earlier evidence about maturity. "Yes, I was too young to marry and I just married because I was pregnant and I also felt I would be getting away from my parents' control eventually" (III, 22/10). As we have pointed out in our legal considerations, neither the fact of facing up to the responsibility of a pregnancy, nor the desire for a degree of personal independence to be achieved through marriage, shows a grave lack of discretion.

            "I didn't put any importance into the decision to marry. I wasn't looking at the relationship as being long-term and forever" (III, 23/14); "it had never entered my mind, at the time, that this person was the one I was to spend my whole life with" (III 25/10). This contradicts her evidence in first instance: "I knew about marriage and I was prepared to settle down and raise a family" (I, 15/5). We would also recall her affirmation that she had no intention against the bona (I, 8/16).

20.       Pressure from her family? As regards the relationship of the marriage to the pregnancy, it was no doubt hastened by it, but the burden of the evidence is that the Petitioner accepted the anticipated marriage readily, and that any pressure coming from her family was slight. Asked, "Did you want to get married?", she replies: "Possibly marriage was taken for granted having gone so far and so long together. I didn't object... I wasn't that unhappy about getting married" (I, 7/10). Later, speaking about her reaction when she realised she was pregnant, she adds: "I can't say I was that surprised... It didn't frighten me. Colm and I weren't formally engaged at the time but there was an "understanding"." (I, 14/2). In her libellus however she had stated: "We were engaged" (I, 1; cf I, 6/6).

21.       The Acts indicate the she grew up in a loving home and had a good relationship with her (adoptive) parents (she was an orphan adopted by her uncle and aunt). Her suggestions of parental pressure are insufficiently confirmed. She claims her parents were "tyrannical" (III, 21/6); and her mother "was strict, very protective and restricting" (I, 5/3; cf. III, 22/9). Yet she inconsequentially adds: "I could always discuss things with my mother and I was not afraid to tell her anything" (III, 22/11). In first instance she had simply said that after the news of the pregnancy, the marriage "was taken for granted" (I, 15/4), and that she fell in with the plans (ib., ex off. 4). Both her parents deny imposing the marriage on her: "They were happy about getting married" (38/9; cf. 42/11a). The explicitly say that she wanted to marry, and that "it was a free choice" (38/10; cf. 42/11b). Her mother, stating firmly, "She would not have been easily led" (42/7), adds: "We put no force on her to marry" (42/10).

            She clearly says: "I never, ever rebelled against my parents or disobeyed them in any way. I felt that they were wiser than me and that they knew better. I never felt that I'd lose their love as I knew they loved me too much for that" (III, 21/7); words which allow an ample margin for disobedience in the case of the marriage, if she had wished to disobey. The evidence is that she did not wish.

22.       Other evidence. The Respondent is inclined to think he made little efforts to make the marriage work, while she made more (27/8). He also feels he was not very mature at marriage, while "Maria was more sensible" (27/9).

            WD, the Petitioner's father: "She was very obedient and disciplined" (37/4). Asked, "Was either of them in any way unusually immature for his/her age?", he replies: "Maria was very sensible" 38/5. Her mother does not contradict this, simply saying: "She was only sixteen and very innocent" 42/6 (but 16 is the age of their meeting, not of the marriage). TG, the Respondent's father, asked about the parties' maturity: "Given that both were young they were not unusually immature for their ages" (45/6).

            The Petitioner's Advocate in first instance argues that she came from an over-protected home, and the Judges, noting her "sheltered background", seem to accept this (59). We cannot find proof of "over"-protection in the Acts. She had had previous boyfriends before she met the Respondent (I, 5/3), was allowed to date him at the age of 16 (III, 20/3), and had frequent intercourse with him (III, 33/18). In third instance, the Respondent states: "No, they weren't over protective. They loved her and always gave her a lot of attention but they didn't stop [her] from doing the normal things she wanted to do. She was a happy child and looked on her parents as if they were her own..." (III, 27/3).

23.       The Expert opinion. The first instance Judges, acknowleding that the witnesses' evidence does not sufficiently support any grave lack of discretion in the Petitioner ("the lay evidence merely points in the direction of the Plaintiff's immaturity"), rely for their affirmative decision mainly on the psychological expert's report (59/6). The report itself is based on tests carried out on the Petitioner in 1985 by Mrs. AC, psychologist. The tests establish the Petitioner "in the range of bright normal intelligence" (52). From Rorschach tests, "Maria's record shows a neurotic, fearful and anxious personality with marked feelings of insecurity. She is socially withdrawn with no positive feelings for relationships... She tends to be unresponsive to others..." (I, 53).

            In evaluating the expert's extrapolation of such personality traits, a Judge must ask if their presence is confirmed in the Acts; and, if so, whether their own severity appears such as to prove a severe defect of discretionary judgment at the time of consent. The Petitioner herself, when questioned about these psychological assessments in third instance, denies their validity: "I'd trust my neighbours and I was always friendly to them when I met them. I didn't socialise with any of them because we didn't have the money and I had a young baby at the time. No, I am not suspicious of people. I have my friends, but I don't socialise a lot with people. No, I am not unsure in social relations..." (III, 23/12). The Respondent also denies that the Petitioner was "cold or detached in any way", and adds that "once she was married she made her own decisions and, in her own way, could be bossy". "She could be quite aggressive from time to time, even with my own family... She is a headstrong girl" (III, 29/8-9; 30/12). Our view is that the psychologist's assessment gives no basis for moral certainty about the Petitioner's capacities or incapacities at the time of the wedding.

24.       The expert further writes: "The indications from the interview and assessment are that at the age at which Maria married - 17 - she would have been more immature, with less personality formation, less objectivity and more subjectivity, and more emotional disturbance than is now evident. She would in effect, have been more neurotic, her ability to think or choose in a conflict-free way less even than now" (53). While noting that the Petitioner's age at marriage was 18 and not 17, we have no difficulty in accepting the first suggestions: "more immature, less personality formation, less objectivity and more subjectivity". As we pointed in the Law section, this difference in degree of maturity - as between the ages of 18 and 36 - is absolutely natural, and offers no element of proof to help the Court. On this point, then, we accept the psychological assessment, but consider it irrelevant. But we would strongly question the basis on which the expert can conclude with scientific certainty that the Petitioner, 18 years before the interview and tests, had more emotional disturbance and was more neurotic than in 1985.

25.       Our main doubt, however, concerns the gravity of the character defects which the psychologist claims to find in the Petitioner. As the Judges of second instance rightly remark: "The psychological assessment states that she is «bright-normal, neurotic, fearful, anxious, no positive feeling for relationships, sex role not defined, childish level of development». Again these characteristics recur regularly in psychological assessments. There is nothing to show that people with these characteristics are necessarily lacking in due discretion for marriage. One must be fearful of relying too much on these assessments when the lay evidence does not give them solid support in favour of the invalidity of the marriage" (II, 17).

26.       Finally, as indicated above, the Court of first instance does not even address the very important question of which were the essential matrimonial obligations in regard to which the Petitioner was held to have laboured under a grave lack of discretion of judgment.

27.       For several years the marriage was in fact quite normal. When the Petitioner is asked, "For how long was the marriage reasonably happy?", she replies: "I'd say for about 3-4 years" (I, 9/19); "it would be fair to say that the marriage gradually deteriorated from the time of the second child" (I, 9/20). She adds: "About 1974/1975, I wasn't trusting him any more" (ib. 9/21), though it should be noted that their third child was born in the following year, 1976.

28.       In short, we do not find it in any way proved that this marriage was invalid because of consensual incapacity. If one wishes to find an explanation for the final breakdown despite a happy beginning, the indications are that it was mainly due to marital infidelity on the part of each spouse (cf. 29/3; 19/3; 32/3; 35/13). Nor is there anything in the Acts to show that these moral failings were grounded in a radical incapacity.

29.       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.

[Omissis]

            Given in the Tribunal of the Roman Rota, October 15, 1992

            Cormac BURKE, Ponens

            Thomas G. DORAN

            Kenneth E. BOCCAFOLA