cormacburke.me.ke

[English version in Forum, 6 (1995) 1: pp. 113-139]

I. THE FACTS

1.         Bridget M, a Catholic, married for the first time in 1953, three daughters being born from the union. After the death of her husband in 1960 she lived as a widow until 1975. For his part, Terence S, an unbaptized non-Catholic, married in 1960 for the first time. His wife having died in 1970, he married again the following year, but this union broke up after only twelve months. Bridget and Terence met in 1975 when he took a room in her lodging house. Shortly afterwards they began to live together "modo maritali". At the start of 1977 she expressed her desire to get married before the Church, overcoming opposition on the part of her daughters. After dissolution in favor of the faith of the man's marriage by papal grant, along with a dispensation from any possible impediment of crime, the parties were married that same year. Married life turned out badly, due to the character of each of the partners, and they separated after four years; no children were born.

            In 1984 Bridget petitioned the Tribunal of Northampton for a declaration of nullity "on the grounds of a lack of due discretion and/or ability to assume and fulfil the basic obligations of marriage", on the part of the man. After the case had been duly instructed, a Negative decision was given in 1986, which the Court of Birmingham overturned eighteen months later. The Apostolic Signature was petitioned to allow the case to be heard in third instance at Westminster, but the petition was denied. Only after two years did the case reach the Tribunal of the Roman Rota.

            Gratuitous legal representation was granted to the Petitioner. The Respondent having been cited in vain, the last time by Edict in the English Edition of the "Osservatore Romano", the doubt was finally concorded on February 21, 1991 in these terms: "Has the nullity of the marriage in question been proved on the grounds of a grave lack of discretion of judgment concerning the essential matrimonial rights and duties of marriage, and/or an incapacity for assuming the essential obligations of marriage, on the part of the Respondent?" The documents relating to the dispensation from the possible impediment of crime were missing in the Acts sent here; and some time elapsed before they were obtained from the Tribunal. Today finally, having received the Brief of the Petitioner's Advocate and the Remarks of the Defender of the Bond, we proceed to give an answer to this doubt.

II. THE LAW

2.         The distinction between no. 2 and no. 3 of c. 1095. Incapacity for giving valid matrimonial consent, deriving from some notable defect of the person's psychic faculties, is dealt with in c. 1095 of the 1983 Code: "They are incapable of contracting marriage: 1º who lack sufficient use of reason; 2º 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; 3º who are not capable of assuming the essential obligations of matrimony due to causes of a psychic nature".

            Doctrine and jurisprudence are agreed that three distinct grounds of consensual incapacity are indicated in the canon. "If [in c. 1095] the Legislator has determined three different incapacities for contracting matrimony, ... we must conclude that the Legislator is treating of three distinct incapacities" (M.F. Pompedda: "Incapacity to assume the essential obligations of marriage", in AA.VV. Incapacity for Marriage, Rome 1987, p. 195). While the fact that the grounds are different is clear, perhaps one can look more deeply into the reason for the difference between them.

            The basic structure of the canon as we now have it, was already settled in 1971. Then the Commission for the revision of the 1917 Code offered the following comment on the three types of incapacity proposed: "While in the first two cases the subjective psychological act of consent labors under some substantial defect, in the last case it can perhaps be elicited in its integrity ['forte integer elici potest'] by the contracting party, but he or she is incapable of fulfilling the object of consent, and hence incapable also of fulfilling the obligation assumed" (Communicationes III, (1971), p. 77).

3.         It is a clear juridic principle that a contract between two persons is invalid, if the object of the contract does not lie within their legal right and power of disposal; or, a fortiori, if the object itself does not exist. Considerable use of this principle marked the development of the idea of consensual incapacity. So, in a Sentence of Feb. 25, 1969, insisting on the "consortium vitae" aspect of the matrimonial contract, Lucien Anné argued that if the "consortium" fails in its very principles, "in such a case the very object of matrimonial consent is lacking" (RRD, vol. 61, p. 185). Doctrine and jurisprudence have tended to make this principle central to the analysis of the "incapacitas assumendi", as we now find it in c. 1095, 3.

4.         Working from the above, it has become common to say that the difference between the three numbers of c. 1095 is that the defect in consent is "ex parte subiecti" in no. 1 and no. 2, but "ex parte obiecti" in no. 3. In the latter case, the consent given is thus held to be sufficient of itself but ineffective, for it lacks its proper object, and so is null. Therefore the "incapacitas assumendi" does not necessarily imply an inadequacy inhering in the very act of consent, since the psychic faculties of the subject - mind and will - need not suffer from any disorder. Thus in an earlier decision, Mons. Anné had written that an incapacitating condition (nymphomania in the case in question) "does not touch the very formal elements of matrimonial consent; in other words, it does not undermine the estimative knowledge and the will of the one giving consent, as far as their operation is concerned; but it does affect the object of consent" (Jan. 17, 1967: RRD, vol. 59, pp. 28-29).

5.         It is true that this analysis follows juridic thought relating to contracts in general. Yet it offers no small difficulty when applied to capacity for marriage. Properly considered, it focuses attention on an incapacity of being assumed on the part of the object, rather than on an incapacity to assume on the part of the subject. It thus tends to make something external to the person, rather than anything internal, the cause of invalid consent. In other words, consensual incapacity under c. 1095, 3, appears to arise not out of a defect of the human act itself, as occurs in nos. 1 and 2, but rather to have an origin which is extrinsic to the agent.

            One wonders if this is the meaning of the canon as finally intended by the legislator. Can the act of consent of a person proposing to marry be in fact integral or sound ("integer") ("that act can perhaps be elicited in its integrity..."), if he or she finds [the obligations of] marriage impossible to fulfil? Is it tenable that a person can be consensually incapable without his or her act of consent being intrinsically defective? In the end, the issue is whether the impossibility dealt with in c. 1095, 3º is external or internal to the subject.

6.         While the frequently invoked principle, "ad impossibile nemo teneatur", is unquestioned in the law of contracts, its application to marital consent calls for no little care. It is quite clear that certain impossibilities can be said to inhere totally in the object, without there being any defect in the elective or executive faculties of the subject. The impossibility of drawing a square circle, for instance; or, to take a more frequent example in law, that of acquiring a particular object which no longer exists (as in a contract to buy or sell a horse which, unknown to the contractants, has just died). In such cases, one can rightly say that the object of the intended contract fails. If the parties' consent - free and adequate of itself - is reduced to juridic ineffectiveness (not unilaterally, but on both sides, be it noted), this is totally and simply a consequence of this "defect of the object".

            Now it is not clear that the above-mentioned principle - properly applied in such cases - can be similarly applied to the contracting of marriage. The object of matrimonial consent is marriage, with its essential rights and obligations. If a person cannot assume the inherent natural obligations of marriage, this is not due to a lack of object - for the object is there - ; it is due to a lack of capacity in the subject, with regard to the object. It is not in the object (marriage), that the impossibility of contracting arises, but in some defect of the person purporting to contract marriage. It is on his or her part, not on its part, that marriage fails. The incapacity lies totally in the subject. Canon 1095 is not speaking of marriages that cannot be undertaken, but of persons who cannot consent to marriage: "They are incapable of contracting marriage:..."

7.         That consensual incapacity for marriage is always therefore a defect in the subject, who fails in some aspect of the consent he or she gives, is no less true of c. 1095, 3º than of nos. 1 and 2 of the canon. The canon in its entirety is concerned precisely with factors internal to the subject which impede valid consent.

8.         Each of the three heads under which c. 1095 considers consensual incapacity is therefore characterized by the presence of an invalidating defect or insufficiency in the subject (the contracting party), regarding the object (matrimony) which he or she purports to choose. The whole of the canon deals with an inadequacy of subject in relation to object. If this is so, the division into three heads must indicate that the defect of the subject is internally configured in a different way in each of the three cases. The analysis of the canon therefore calls for a more exact determination of the distinctive nature and root of the defect, as contemplated in each number of the canon.

            In no. 1, the matrimonial incapacity of the subject arises from his or her absolute incapacity (at least in the moment of consent) for any human act, due to lack of sufficient use of reason. Nos. 2 and 3 deal, however, not with incapacity for any human choice, but with an incapacity relating to the essential rights/obligations of marriage. Here the canon is very precise, and it is important to keep its precision in mind: "... who suffer from a grave lack of discretion of judgment concerning the essential matrimonial rights and duties"; "... who are not capable of assuming the essential obligations of matrimony".

            It could therefore be said that, insofar as one can speak of the object of the choice under no. 1, it is marriage considered "simpliciter"; whereas in nos. 2 and 3, it is marriage considered from the angle of its essential rights/obligations. If the lack of use of reason contemplated in no. 1 is verified, the marriage is always null. But even if a grave lack of discretion or an incapacity to assume are proved under nos. 2 or 3, consensual incapacity does not ensue unless it is also shown that the anomaly in question incapacitated the person precisely in relation to a right/obligation which is essential to marriage. An incapacity for understanding/assuming unessential rights/obligations of matrimony is irrelevant under c. 1095, 2 or 3, and does not invalidate consent. It would seem to follow, as a requirement of sound jurisprudence, that any declaration of nullity under nos. 2 or 3 of this canon, should specifically indicate the essential right/obligation for which the person was held to be incapacitated.

9.         If we now focus attention on nos. 2 & 3 of the canon from this viewpoint - that both treat of a defect of the subject vis-à-vis the object - , we can repropose the question: what is the main reason for the distinction between the two grounds? One possible answer might be that 1095, 2º deals with consensual incapacity which is rooted in the estimative powers of the subject, while 1095, 3 considers such incapacity when it affects his or her executive powers, always in relation to the essential rights/obligations of marriage.

            According to this hypothesis, the defect of the subject (at the moment of consent) in relation to the object would be rooted in the mind, in the case of 1095, 2º; and in the will, in the case of 1095, 3º. As we read in a recent Decree, this attribution has considerable logical consistency: "just as the mind and the will are inter-connected, each in its own specific way, in matrimonial consent, so in canon 1095, an incapacity in the intellective sphere is related to a defect of discretion of judgment (no. 2 of the canon), and an incapacity of assuming the obligations promised pertains to the volitive sphere (no. 3 of the canon): so the two numbers of the canon, each in its own way, are inter-related in the matrimonial consent given" (c. De Lanversin, Decree of Jan. 13, 1993, no. 6).

            If one takes this approach, cases of consensual incapacity attributable to anomalies or defects of the mind are covered by c. 1095, 2, while c. 1095, 3 covers those where the incapacity is rooted in defects of the will. Under no. 3 of the canon, then, a person understands the essential obligations sufficiently but, due to weakness of the will, is unable to carry them out; and therefore cannot validly assume them. He or she lacks executive ability.

10.       Analysis along these lines might reasonably take another step which would bring out the logic of the canon and facilitate its application; that is, to assign all cases of incapacity due to defect of the will to c. 1095, no. 3. From the volitive viewpoint, one must in fact consider not just possible executive inability - inadequacy of the will to dispose of the object chosen or to fulfil the obligations consented to - but the prior and even more radical hypothesis of elective inability: i.e. absolute incapacity for making any choice whatsoever.

            In other words, a person can be volitively incapable of valid matrimonial consent:

            a) because, while he retains his will power, it exists in such a weakened state that it is not up to the measure of the object choosen. He is able to choose, but is not able to fulfil (always remembering that a real impossibility, and not just a difficulty must be proved). Nymphomania could be a case in point;

            b) or because he has totally lost his will power, his very power of free choice. His internal freedom has been so undermined that his actions are no longer human choices at all. He is not able to fulfill, because he is no longer even able to choose. A pathology such as drug-addiction can reduce a person to such a state.

            In the first case, his incapacity derives from the inadequacy of his executive power; he is unable to assume because he is unable to fulfil. In the second case, it is the very elective power itself that is missing; he is unable to assume simply because he is unable to make any true human choice.

11.       Thus all cases of incapacity with a volitive origin - will existent, but too weak; and non-existent will - would be dealt with under c. 1095, 3º. And so we would have reached a consistent analysis of the difference between no. 2 and no. 3 of the canon:

            1095, 2º: defects of the mind; of the estimative-critical faculty;

            1095, 3º: defects of the will; of the elective-executive faculty.

12.       This might give a better picture of the logical unity and division of the canon. While it has one topic - consensual incapacity of a person purporting to marry - it contemplates it from three angles: a) invalid consent because of absolute incapacity for any human choice; b) invalid consent deriving from defects of the mind, in relation to the essential rights/obligations of marriage; c) invalid consent deriving from defects of the will, in the same respect.

            This moreover could bring the juridic use of the term "discretion of judgment" into greater harmony with its more properly philosophic sense, where it possesses an intellective, not a volitive, connotation.

13.       We could mention here in passing the difficulties brought up by the suggestion that incapacity can occur, under 1095, 3, without there being a true psychic anomaly. So we read in a recent Sentence: "The main difference [between the three numbers of the canon] consists in this: in the last hypothesis the incapacity arises out of one or several concurring causes of a psychic nature, which do not however constitute a true psychic anomaly or illness, that can be included in a diagnostic category; while in the first two cases a true psychic anomaly, properly so called, is required which, given its nature and seriousness, must fall within some diagnostic category" (c. Faltin, March 3, 1993, no. 10). It does not seem possible that so grave a handicap as consensual incapacity, originating in psychic causes, should occur without the existence of a true psychic anomaly. Other recent Sentences seem to express the basic principles more correctly: "Both in no. 2 and in no. 3, we are dealing with a defect of consent arising from some psychic anomaly" (c. Doran, March 25, 1993, no. 6). The gravity of the underlying anomaly is stressed: "an incapacity for assuming or fulfilling the obligations of matrimony not derived from some grave psychic disturbance at the moment of the wedding, is scarcely conceivable in the juridic order" (c. Boccafola, Jolietten., Dec. 13, 1989, no. 13); "a true incapacity for assuming the essential obligations of matrimony such as to invalidate marriage, can also be admitted if it is proved that the state of psychic pathology of the contracting party was grave at the time of the wedding" (c. De Lanversin, Bogoten., Jan. 27, 1993, no. 10). And this necessarily involves a grave disturbance of the personality: "No. 3 of can. 1095 refers to and weighs the 'juridic impossibility of assuming the essential matrimonial obligations by the contracting party who suffers causes of a psychic nature, that is, psychic anomalies, which undermine the structure of his personality" (c. Ragni, Mutinen., March 23, 1993, no. 4); "there must be proof of a true and rooted permanent disorder of the personality" (c. Agustoni, Corcagien., July 15, 1986, no. 4). It is clear that a person so radically affected in his or her personality is suffering from a grave psychic anomaly.

14.       The right to spiritual intimacy. Matrimonial consent means conferring and accepting a right (with its corresponding obligation) to both physical and spiritual intimacy. A person who is incapable of understanding the minimum juridic content of the essential obligations involved in these rights, or of assuming those obligations, is incapable of matrimonial consent.

            The question of consensual capacity for the physical intimacy of marriage does not seem to pose great theoretical problems. On the estimative level, the parties must understand that marriage gives an essential right/obligation to a 'certain sexual cooperation' ordered to the begetting of children (c. 1096, § 1). On the operative or executive level, there must be a real capacity to perform intercourse (c. 1084, § 1). (We do not enter here into the questions raised by the phrase "humano modo" in c. 1061, § 1). So, from both the estimative and executive points of view, the essential nature of the right exchanged is clear. No special difficulties therefore face a Court in judging if there was a minimum critical understanding of this right to physical intimacy, or if there was capacity for assuming the corresponding obligation.

15.       The question is different with regard to consensual capacity for the spiritual intimacy of marriage. Jurisprudence and doctrine are still engaged in the by no means easy task of determining what is essentially involved, from the juridic viewpoint, in the exchange of a right to such intimacy. The fact is that many of the spiritual aspects of marriage pertain to the moral or ascetical spheres, rather than to that which is strictly legal. It is nevertheless clear that the juridic investigation of the question must be pursued. The investigation should not ignore c. 1096, § 1, as if it offered just a sexual-biological concept of marriage. On the contrary, the canon, precisely in presenting marriage as a permanent, open-to-children, "consortium" between a man and a woman, thereby indicates the main fundamental elements on which the human-spiritual character of the covenant rests. The permanence of the interpersonal intersexual relationship established, its exclusive character, its openness to shared procreativity: these must be the first reference points for determining those essential rights/obligations of marriage, also from the spiritual point of view, which have a juridic dimension and in whose regard therefore a person's estimative-critical faculty, and his or her volitive-executive faculty, can be the object of judicial estimation.

16.       A rotal sentence c. Raad of Apr. 14, 1975 (one of the "Sources" for c. 1095, 3º, cited in Codex Iuris Canonici, Fontium Annotatione Auctus; Lib. Ed. Vat., 1989, p. 301)) considered at some length different qualities and capacities, relating to the spiritual intimacy and integration between the spouses, which had been suggested as being essential to the valid juridic constitution of the married covenant. They included: "stability in work", "maturity of conduct throughout the ordinary events of daily life", "self-control or temperance necessary for any reasonable and 'human' form of conduct", "stability of conduct and capability of adapting to circumstances", "gentleness and kindness of character and manners in mutual relationships", "mutual communication or consultation on important aspects of conjugal of family life"... Raad's observation still seems cogent: "If each and every one of the aforementioned elements are essential to matrimonial consent, then one can legitimately ask: Who is capable of marriage?; Is there any unhappy marriage which cannot be declared invalid?" (RRD, vol. 67, pp. 243-245).

17.       A psychiatric expert, in a recent rotal case (PN 15.685), asked which he considered the essential obligations of marriage, answered: "the obligations of a moral nature: of support, of communication, of mutual understanding". We fully agree with the expert that, within the moral order, these are indeed important obligations whose fulfilment is necessary for the realization of all the promises of marriage. The question within the legal order, however, is whether they can be considered juridically essential (as undoubtedly are the obligations contained in the three "bona"), in such a way that marriage is not possible for the person who does not sufficiently understand or is incapable of living such moral obligations. In judging consensual capacity, the measure of the law must be what is constitutionally required of a person so that his or her consent brings marriage into being, not what might be morally desirable in him or her as likely to bring subsequent conjugal life to human fullness or perfection.

18.       That there is an constitutive and essential obligation to be faithful, or to share one's procreative power with one's partner, is evident; and an ecclesiastical Tribunal can be reasonably asked to judge from the evidence if a party, at the time of consent, had sufficient critical perception of such an obligation or possessed the capacity to assume it. However, with regard to the duty to be stable, patient, communicative, good-natured, kind, prudent, adaptable, etc., it is difficult to see how these can be properly regarded as constitutive to valid marital consent, and no less difficult to establish (or even to suggest) any objective jurisprudential criteria by which a Court could judge whether a person's possession of such qualities was sufficient or insufficient for the validity of his or her consent.

            A Court may well conclude that the evidence shows a person to be of unstable temperament, constitutionally nervous or impatient, rough in character, with little self-mastery in smoking or drinking, deficient in financial responsibility, etc. Yet (leaving aside the case where deceit about such defects was deliberately exercised so as to bring about marital consent), by what legal standards and on what human grounds can it be held that a person with defects like these is incapable of marrying, or that another party, even if in love with such a person and fully aware of his or her defects, has not the right or the possibility of marrying him or her?

19.       Canon 1057, § 2 clearly states that by matrimonial consent, one not only gives oneself; one also accepts the other. This acceptance involves taking a person as he or she is: i.e. with his or her defects. Being human, both the one who gives, as well as the partner whom he or she accepts, has defects. Such defects can even be apt of their nature to gravely perturb married life. But the Code, in c. 1098, makes it clear that, in the absence of deliberate deceit, they have no invalidating effect on matrimonial consent.

20.       "An argument for real incapacity can be entertained only in the presence of a serious form of anomaly which, however one chooses to define it, must substantially undermine the capacity of understanding and/or of willing of the contracting party" (Pope John Paul II; Address to the Roman Rota, Feb. 5, 1987: AAS vol. 79, 1457). "Certainly, some degree of psychopathology is universal and its presence cannot automatically be equated with illness" (Editorial: American Journal of Psychiatry, vol. 143 (1986), p. 201). Defects such as temper, jealousy, ups and downs in mood are common; and one cannot lightly make them enter the category of a "serious anomaly", necessary to give any basis to a plea of consensual incapacity. Elements of temperamental variation are easy to note in the way of acting of many persons, and one can say, if one chooses, that they show "dichotomy" in behaviour. But it would be totally unwarranted to conclude from these temperamental ups and downs that such persons are schizophrenic in a strict sense. For that, a professional and trustworthy psychiatric diagnosis would be absolutely necessary.

21.       As regards the phenomenon of jealousy, so often present between lovers, we could note that while an 'official' view has spread in much of modern psychiatry and psychology, which treats jealousy as a pathology, a symptom of immaturity, possessiveness, neurosis or insecurity, psychiatrists of repute disagree, holding that while it can be pathological, there is a normal jealousy which ordinary people still in fact regard as a natural concomitant of love (cf. Paul E. Mullen: "Jealousy; The Pathology of Passion", British Journal of Psychiatry, vol. 158 (1991), pp. 593-601). St. Thomas remarks: "jealousy of the husband towards his wife, and of the wife towards her husband, is natural; for it is to be found in everyone" (Suppl. q. 65, art. 1).

III. THE ARGUMENT

22.       The plea we have to judge is that of the alleged consensual incapacity (under both nos. 2 and 3 of c. 1095) of a man who had been twice married before, and who was 47 years old at the moment of consent to the marriage being impugned. It seems to us that the Judges of first Instance pertinently remark: "people in their forties who marry have more than a presumption in favour of their maturity for marriage... Persons who have married successfully before are unlikely to lack the necessary discretionary judgement for marriage at a later stage" (101). Whatever about the Respondent's second marriage (dissolved in favour of the faith), his first marriage would seem to have been "successful", having lasted ten years and ending only on the death of his wife.

            Therefore, given the age and previous marriages of the Respondent, the evidence for his consensual incapacity, under either 1095,2 or 1095,3, would have to be very clear and convincing. In fact, it is almost nil. In particular, no evidence is offered to indicate or identify any grave psychic anomaly from which he would have suffered at the time of the marriage. The witnesses, with the one exception of Fr. B., are hostile to him (the first instance Judges speak of the evident "animosity of the witnesses to the Respondent": 106), but they cannot indicate anything in his background which might imply a psychic anomaly (cf. 35/2c; 43/2c; 51/2c; 122/2c). He says he had no family or personal history that might be adverse to valid consent (26). The Petitioner's oldest daughter confirms this: "From what I know of his parents, his background was a good one... they had a lovely home" (122)

23.       Re discretion: The Petitioner, asked if she thought the Respondent was mature at time of wedding, replied: "He should have been... If you're not mature by then, you never will be" (21). Her sister Margaret E. and Joseph, her husband, thought "they were both mature enough" (44).

            In his second deposition the Respondent underlines the deliberation preceding the decision to get married. Asked, "Did you leave your [former] wife to go to Bridget?", replies: "No, no... Bridget and I were living together for 15 months beforehand. We got an annulment to marry in the Catholic Church" (93). The Petitioner's other sister, Mary V, and her husband Barry, say that before marriage, "they got to know each other quite well through him being a lodger there. They in fact knew each other very well" (52).

            Asked if he or the Petitioner had doubts beforehand about the success of the marriage, the Respondent replies: "No. I thought that if we got married, we would be better off" (28/6a-b). The witnesses confirm this (45/6a; 53/6a; 123/6a), although her daughters had some doubts (123/6b).

            As the Defender of the Bond in first instance says, "They were both over 40. They had already been living together for 15 months. They both felt marriage was the right thing for them, considering the way they were already living. And that was a reasonable judgment" (68). We agree with this last statement.

24.       The Appeal Court Judges admit the force of the remarks made by the Judges in first instance about the presumption in favour of maturity; they contend nevertheless that particular circumstances of the marriage show the presumption to have been rebutted. "The Judges understand the opinion of their Brethren at First Instance that at forty-seven and following two previous marriages, the Respondent must have appreciated what was involved and have been basically capable of it... however, it is clear that the Respondent had little appreciation of the position in which his third wife was. He had no children of his own and clearly resented the natural relationship between Bridget and her daughters. While some of the difficulty may have been due to the adolescent behaviour of these girls, surely a man of that age should have appreciated the delicacy of what he was undertaking. We know nothing of why his second marriage ended in divorce but it is a reasonable supposition that the same sort of things were happening" (142).

            None of the points adduced by the Judges seem to have any bearing on discretion in the sense in which it is used in c. 1095. Whoever fails "to appreciate the delicacy" of the future relationship to be lived vis-a-vis one's spouse's daughters, may show a lack of intelligence, or of simple tact, but certainly not a grave lack of discretion about some essential obligation of matrimony, as it is juridically to be understood.

25.       Re "incapacity of assuming". The second instance Judges concluded in any case that the Respondent not only lacked due discretion for marriage, but was also "unable for its obligations" (142). The defects which convince them of this latter incapacity are listed: "There is good evidence that his general behaviour was impossible with jealousy, outbursts and tantrums and sometimes with violence. He was unreliable in financial matters. What impressed the Judges was the evidence that he came from a very good background and had lovely parents but could not get on with them. The Judges were particularly influenced by the evidence of the dichotomy in his behaviour. He could be nice, charming at one time, and suddenly impossible" (ibid.).

            Even if the assertions of some of the Petitioner's witnesses about "split personality" or inconsistent behavior on the Respondent's part are accepted, it must be said that no truly abnormal degree of characterial defect is thereby shown. As we saw in our juridic considerations, an argument of "dichotomy" in the behavior of a person can serve as a basis for declaring his consensual incapacity only after a competent expert diagnosis of a grave and permanent condition of schizophrenia, present at the time of the wedding.

26.       While the Judges of the Appeal Court give examples of areas where married life was not always peaceful, they assume rather than prove that the Respondent was the one at fault. In particular, they engage themselves in no judicial process of deliberation which could show the seriousness and permanence of the faults attributed to him, or their antecedence to the marriage, or above all how they relate to obligations which are essential to matrimony. Having noted that this latter failure - to examine and identify the essential marital obligations for whose fulfilment the Respondent would have been incapable - constitutes a major defect of the second instance Sentence, we go on to examine the main areas touched on by the Judges.

27.       Jealousy. There is some evidence of jealousy on his part. While we do not necessarily go along with the remark of our Deputy Defender of the Bond ("within the juridic field, this characteristic of the man can be positively evaluated. For, in acting so, the Respondent showed his discretional capacity regarding the exclusiveness of the partnership of the whole of life between him and the Petitioner"), we would refer back to the points made in our Law considerations. We cannot hold that there is an essential conjugal obligation not to be jealous, nor a conjugal right not to have a jealous partner. It is not in fact uncommon for married people to feel offended if they never see any signs of jealousy in their partner. The Acts offer no indication of pathological jealousy in the Respondent.

28.       Financial irresponsibility. The Judges of first instance comment that money was "clearly a bone of contention" (108). While it was a cause of rows between the parties, their evidence as to details does not concur (23; 30/9; 94). That he was not absolutely irresponsible in money matters is borne out by her own testimony: "He gave me £10 p.w. for digs. Maybe he gave a little bit more before he got married" (21); after marriage, "sometimes he'd hand over his money" (23/9c).

29.       Violence. The first Court says: "A major allegation is violence" (106); but she says the violence occurred only after the marriage, not before (21). In her first deposition, all she states about violence is: "On one night... he started hitting me with the pillow"... "Sexually he was very demanding... The violence started a couple of months after we were married. There were definitely rows and arguments every month. The violence wasn't exactly monthly however" (23). In her second deposition, she says, "he hit me and my daughter too", but it is not clear that this was often (78). According to her, the marriage came to an end when she could not "take any more of his tantrums and violence" (24). In describing the episode of the pillow, she adds: "That is what I call a tantrum" (23); one gets the impression that the violence was not of a much greater degree. In her libellus, she claims "on one occasion he attempted to strangle me" (1; 23), but gives no further proof. In her petition for divorce to the civil court, she said he had "threatened to strangle" her (12).

            He first denies that there was violence (30), but admits in second interrogation that "sometimes" there was (96). Her brother Daniel speaks about one occasion when there seemed to have been particular violence; but adds "we only learned about all of this after the marriage was over" (38). In second instance, her daughter Anna recalls once when the Respondent was violent to her; the police were called, but refused to intervene in a "domestic" quarrel (127), which the Respondent confirms (30; 95). Anna also says, "I knew from mother he had on quite a number of occasions hit her. But in front of me or my sisters, a few times he had perhaps grabbed her by the arm and shakened her, but never more than that" (121).

30.       Quarrels. Their conjugal life was marked by several ruptures (24; 30; 77-78; cf. 75, 128). A partial reading of the evidence could give the impression that it was she who always made him leave, but he would return and in the end be received back by her. Anna says: "He would be phoning up incessantly... Mum would give in to his phoning... She would give in all the time. He would always promise that he would try harder... Deep down she really did love him and deep in her heart she wanted to believe that it was working out and so she would always give him another chance. Even when she had told him to go and not come back, she was depressed" (128). However, the Petitioner's evidence shows that reconciliation was also sought by her: "he was coming and going all the time. I asked him back myself a couple of times... It was he who asked for the divorce in the end, I even came back twice after" (78). According to her daughter, "when it was resolved and he came back, Mum used to be happy... Then everything would be fine for another couple of months and then it would flare up... Maybe they were incompatible..." (128). The Acts make it clear that there were rows, but not whether he or she was to blame; probably both were.

31.       In short, as regards the defects listed, we find:

            i) little convincing proof that they were grave or frequent;

            ii) no proof that they were incapacities, and not just moral defects - of the Respondent, or of both parties;

            iii) no proof that, if they were incapacities, they were inherent in his character at the time of the marriage;

            iv) no judicial reasoning to show that the defects listed fall within the category of essential marital obligations.

            The Defender of the Bond in first instance had commented: "One cannot make a case for 'inability to assume the responsibilities of marriage' on this kind of trivial evidence" (67), and added: "Is this the stuff of which annulments are made?" (68). They are remarks which could have been pondered more thoroughly by the Judges of the Appeal Tribunal.

32.       We would return to an observation of the Judges already noted: "There is good evidence that his general behaviour was impossible with jealousy, outbursts and tantrums and sometimes with violence" (142). "Impossible": to whom? The Judges' meaning seems to be that such behaviour (to us insufficiently corroborated, at least in its gravity and one-sidedness) was "impossible" for the Petitioner to bear. But this is irrelevant, unless the grounds alleged are her incapacity. In making a moral or pastoral, rather than juridic, analysis here, the Judges seem to stray from the issue before them: that it was impossible for him to act otherwise, and that this impossibility - incapacity - was present at the moment of consent.

33.       Fidelity is certainly an essential matrimonial obligation. Asked if the couple were faithful to one other during the marriage, the two sisters of Petitioner and their husbands reply affirmatively (46/6f; 54/7f; 55/9d), as does the Petitioner's daughter, Anna (125/7f; 126/9d). The Respondent affirms that there was no unfaithfulness on either side (31).

34.       An expert psychiatric opinion "super Actis" was requested in this instance by the Petitioner's Advocate but, after careful consideration of the evidence, was considered not warranted or useful. Our judicial evaluation regarding the defects alleged in the Respondent is that their presence to any degree of gravity is not sufficiently proved by the Acts; and moreover that even if it were, this would not amount to a serious psychic anomaly which alone could originate a grave lack of discretion regarding essential rights/obligations of marriage, or an incapacity to assume them. The Judges of second instance were within their right to hold that the charges of bad behaviour in the Respondent are adequately proved from the Acts; we do not think so. However, they were not right to go on to conclude to some pre-nuptial psychic anomaly (not specified either in nature or in gravity) which would have made him consensually incapable; and less still to do so without the unequivocal scientific support of a trustworthy expert opinion. Our conviction is that the Acts simply could not support any possible expert conclusion to this effect; it therefore seemed pointless to seek a peritia (cf. c. 1680).

35.       It could be noted that the instruction of the case in first instance is well done: the questions are pertinent and make for a thorough investigation. Nevertheless, the complete instruction offers little more than one-sided assertions of not very major defects in the Respondent. The version of matters presented from the Petitioner's side, even if fully accepted, would give grounds for separation, but none for consensual incapacity. The claim originally made - against the consensual capacity of a man of 47 years of age, who had been twice married previously - was prima facie not likely to succeed, in the absence of plausible indications that one could be dealing with an extraordinary case. It is questionable whether the petition, as presented (Acts, 1), should have been accepted.

36.       The reasons for the final breakup remain a matter of conjecture. The Respondent places the blame on 'interference' (92-94). Rev. B. testifies to the strains which the Respondent felt at the Petitioner constantly having her daughters or other people lodging in the house. "He felt that he and Bridget had no privacy and no life of their own" (74-75). The Petitioner herself says: "I first told him to leave around Christmas 1977, just him being impossible, rows, shouting, things I wasn't used to" (78). She adds, "I wouldn't have minded if there had been a reason"; but immediately qualifies this: "I'd think it was my fault, my girls being there or family in the way, I'd think" (ibid.). One also notes Rev. B.'s letter to the Court: "I think that Bridget treated Terence very badly, even scandalously" (14).

37.       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 a grave lack of discretion of

judgment concerning the essential matrimonial rights and duties of marriage, and/or an incapacity for assuming the essential obligations of marriage, on the part of the Respondent".

            Given in the Tribunal of the Roman Rota, July 22, 1993.

            Cormac BURKE, Ponens

            Thomas G. DORAN

            Kenneth E. BOCCAFOLA