cormacburke.me.ke

[English version in: Studia canonica 28 (1994), 241-262]

I. The Facts

1.         James and Eugenia first met at Easter 1957. They got engaged in 1964, after he had finished law school; and were married in October 1965. They had three children, and their married life together lasted 22 years. Tensions between them arose, due to James' drinking, especially in the last years. They separated at Eugenia's request, and civilly divorced.

            James then petitioned the Tribunal of X to declare his marriage null on the grounds of lack of due discretion in both parties. An Affirmative Sentence was handed down by a one-Judge Court on August 28, 1989. The Respondent then appealed to the Roman Rota, where the case was sent in July 1990. On January 31, 1991, our Turnus sent the case to ordinary examination in second degree, since it appeared to require further proof. The Petitioner appointed his own rotal Advocate; another rotal Advocate "ex officio" was named for the Respondent. Further instruction of the case was effected through the judicial examination of the Petitioner and of his brother, and the furnishing of declarations and medical documents. Finally, having received and examined the Advocates' Briefs and the Observations of the Defender of the Bond, we must today respond to the doubt concorded on October 3, 1991 in the following terms: "Whether the Sentence of first instance is to be confirmed or reversed; in other words, whether the nullity of the marriage has been proved, on the grounds of a grave lack of discretion of judgment on the part of the Petitioner concerning the essential matrimonial rights and duties which are to be mutually given and accepted, according to the norm of c. 1095, 2".

II. The Law

2.         In weighing cases of consensual incapacity, ecclesiastical jurisprudence needs to establish and hold to juridic terms of reference, without unnecessary or inattentive use of medical or psychiatric terms. This is all the more important when, as seems to be the case in modern psychiatry, even leading psychiatrists themselves are not in universal agreement about diagnostic terms (cf. American Journal of Psychiatry, vol. 141 (1984), pp. 542-545; 548-551; vol. 150 (1993), pp. 399-410).

3.         This can be pertinent in considering a statement made in one of the Briefs presented before the Court in the present case. According to the Petitioner's Advocate, rotal jurisprudence accepts that an incapacitating defect of discretion "does not require the existence of a real psychopathology" (Brief, 7). Whatever positions on this may have been maintained in the 1970s, c. 1095, 2 of the 1983 Code lays it down that incapacity for marital consent can arise only where there is a grave defect of discretion: only, that is, when the judgmental faculty of the human "psyché" is gravely disordered. If any possible doubt remained on the point, it was dispelled by an authoritative interpretation (for the whole of c. 1095) given by the chief legislator himself. In his 1987 Address to the Rota, Pope John Paul II declared that "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" (AAS, vol. 79 (1987) 1457). From the viewpoint of christian anthropology and canonical jurisprudence, such an "anomaly" - however it may be defined by other sciences - certainly represents a true pathology of the «psyche»; a disorder or illness ("morbus") of mind and/or of will (and some would also say of affectivity), such as to incapacitate for consent.

4.         The progress of modern science has shown that psychological disorders are much more frequent than was supposed or at least admitted in the past. It does not follow from this, however, that such disorders are always serious. "Formerly the presence of some form of psychic anomaly tended to be regarded as something quite exceptional, and also as a fact to be ashamed of. Contemporary society readily accepts that psychic ailments are almost as common as physical, and that, like physical sicknesses, they can be present in mild, moderate or severe degrees. This new realization is not really new to Christian anthropology which holds, as a fundamental view of man flowing necessarily from the doctrine of Original Sin, that each person suffers from some disturbance or lack of integration in personality. From the christian view, therefore, there is no one who is perfectly "normal", in the sense of never deviating from the norm of "ideal" or perfect harmony or inter-working between the different psychic faculties" (Sentence coram undersigned Ponens, Jan. 17, 1991, n. 3).

            Certainly, a simple diagnosis of a "Personality Disorder", with little specification of its effects and no clear indication of its gravity, is totally inadequate to prove consensual incapacity. Personality Disorders are frequent. DSM-III-R, listing many types, states that "Borderline Personality Disorder is apparently common" (p. 347), and affirms the same of Histrionic Personality Disorder (349), of Avoidant Personality Disorder (352), of Dependent Personality Disorder (354), and of Obsessive Compulsive Personality Disorder (355).

5.         Moreover, the ecclesiastical judge must always consider whether the symptoms - the indications invoked to diagnose an alleged "Disorder" - are sufficient to establish the existence of a truly incapacitating disorder, within acceptable anthropological terms of reference. Particular care is called for in considering how a "Dependent Personality Disorder" might render a person incapable of marital consent. After all, given the fact that matrimony was instituted to provide mutual support, a certain disposition towards and desire for dependence would seem to make a person apt for consent, rather than unfitted for it.

            According to the current criteria of the American Psychiatric Association, a diagnosis of "Dependent Personality Disorder" is appropriate when a person shows the following five "symptoms": (a) "volunteers to do things that are unpleasant or demeaning in order to get other people to like him or her"; (b) "feels uncomfortable or helpless when alone, or goes to great lengths to avoid being alone"; (c) "feels devastated or helpless when close relationships end"; (d) "is frequently preoccupied with fears of being abandoned"; (e) "is easily hurt by criticism or disapproval" (DSM-III-R, p. 354). The last of these "symptoms" no doubt indicates a degree of moral defect, though hardly a grave one. It is arguable however that the other four are compatible with true marital love and fidelity, and even that they could be regarded as a sign of such love and a good basis for it.

            The Petitioner in the present case claims that grave immaturity was shown in the fact that he and the Respondent were "codependent": something he clearly regards as a defect. Marriage however is essentially a codependent affair. To be a support to one another, so as to grow together, is part of the design of marriage, aimed precisely at fostering the "good of the spouses". Modern psychologists tend to consider "excessive dependence on one's married partner" as a character defect (British Journal of Psychiatry (1991) vol. 158, p. 598); perhaps; but if it is not excessive, it is a virtue.

6.         Expert opinions

            In the process of building up the evidence and proofs which the Judge must weigh in coming to a decision, the opinion of professional experts in various fields (impotence, calligraphy, etc.) has long been considered of particular use. Canon 1574 states: "The service of experts are to be used whenever, by ruling of the law or the judge, their examination and opinion, based on the laws of art or science, are required in order to establish some fact or to ascertain the true nature of some matter".

            In relation to matrimonial cases, c. 1680 makes this use prescriptive, whenever what is alleged is a "defect of consent due to mental illness" [morbus mentis]. Bearing in mind what we have seen above - that consensual incapacity can only arise from a serious psychic anomaly or illness - it is clear that if, not only from what is stated in the libellus but especially from the subsequent instruction of the case, some reasonable indication emerges that a grave "morbus" may have existed at the time of the wedding, then the use of an expert is called for. If nothing in the instruction indicates the existence of a serious psychic anomaly at that time, then, also according to the prescription of c. 1680 ("... unless it is obvious from the circumstances that this would be useless..."), it would seem pointless to call on the services of an expert (cf. Sentence coram undersigned Ponens, June 18, 1990, nn. 7-9: in Forum 3 (1992) 1, p. 110).

            "Where the Acts in no way insinuate a doubt as to the alleged abnormality in the person, it is not just the Judge's right but his duty to omit recourse to expert opinion. Cases after all are instructed not on probabilities or hypotheses, but on facts and circumstances as expressed; not on what is desired, but on the truth" (c. Agustoni, July 15, 1986: RRD, vol. 78, p. 461).

7.         The purpose of a "peritia" is to provide peculiar or specialised information, that sheds fresh light on the case, so helping the Judge to arrive at a new and deeper understanding of it, not previously accessible to him. Although it is true that the "conclusion of experts is not legal proof" (c. Bejan, March 14, 1964, RRD, vol. LVI, p. 195) and that "psychological judgments do not constitute legal norms" (c. Stankiewicz, May 31, 1979: RRD, vol. 71, p. 310), the findings or opinions of an expert clearly merit special attention, as those of a qualified or "technical" witness (cf. c. Ferraro, Decree of Dec. 21, 1982, n. 6). At the same time it is obvious that the scientific value of such opinions is proportionate to the certainty of the data on which they are based, as well as to the reliability of the methods used in coming to them. A psychiatric opinion based on specific clinical-medical records (which certify, for example, to a condition of alcoholism or drug-addiction) works, at least in part, from objective data whose legal relevance can be fairly assessed. The data provided by psychological tests would seem to offer less basis for arriving at certainty in legal judgments, psychiatrists themselves being at variance about the reliability of the different types of tests, and the validity of the particular conclusions to be drawn from them (cf. J.J. López Ibor Aliño: "Cuestiones Médico-legales", in Introducción a la Psiquiatría (9th Ed.), Barcelona, 1977, p. 487). A direct psychological or psychiatric examination of a person can also produce data for an expert opinion; but, once again, the scientific certainty of the conclusions offered poses a question of no small difficulty for the Judge.

8.         Physicians seldom differ radically among themselves about the nature or even the gravity of a particular physical ailment; their differences more often relate to its treatment. Among psychiatrists, however, as every judge knows, radical differences in diagnoses of psychic ailments are quite frequent. Nor are these differences surprising. While physicians share a common model of "normal" health, such a model does not exist in psychology, for psychiatrists or psychologists have no unanimously admitted standard of normal personality or normal psychic health (cf. S. Cervera et al.: "La psiquiatría y la función del perito en las causas matrimoniales" Ius Canonicum 18 (1978), p. 256; G.W. Allport: Pattern and Growth in Personality, New York, 1961, p. 307).

            While these considerations in no way deny the value of psychological or psychiatric opinions, they do suggest that the scientific certainty which they provide is relative, since a large element of hypothesis tends to underlie the interpretations they offer. The Judge should not lose sight of this, when he comes to consider the Acts.

9.         The Acts are made up of documents, testimonies, opinions (expert or not), as well as established facts. It is by judicial evaluation of each element of the Acts, and especially of the overall interplay between them, that the Judge must acquire the moral certainty necessary for his judgment. In weighing up a psychological opinion, a principal guideline for the Judge is to consider whether it is corroborated or not by the other elements in the Acts, and by the conclusions which can be drawn with moral certainty from them. "The judge is to weigh carefully not only the conclusions of the experts, even when they are concordant, but also the other circumstances of the case" (c. 1579 § 1). When an expert opinion is supported by the overall evaluation of the rest of the Acts, powerful grounds are created for its positive acceptance in the judicial determination of the case. On the other hand, a "peritia" unsupported by the Acts is to be questioned; while one in contradiction with what clearly emerges from the other elements of the Acts, is almost always to be rejected.

10.       Jurisprudence is agreed that the Judge should not depart from an expert opinion without serious reasons (cf. c. Felici, Dec. 3, 1957: RRD, vol. 49, p. 791). While this is so, it obviously supposes that the "peritia" in question rests on reasons which are themselves serious and bear up to scrutiny. If an expert opinion is seen to be superficial in scientific method, and if above all it does not stand up to judicial verification - being contradicted rather than supported by the other evidence available - , then its value for deciding the case is almost nil.

11.       The delicacy of the task facing the Expert is underlined by the peculiar nature of any judgment about consensual incapacity. The Expert opinion concerns the internal condition of a person, and gives a necessarily retrospective evaluation of that persons's mental or psychic health at a particular moment (that of consent), five, ten or twenty years previously. Moreover, the Expert is being asked not for a vague or general psychological picture, but (and this is his proper service to the Tribunal) for a specific judgment about the psychic condition of the person at that past moment: diagnosing, as the case may be, the existence then of a grave anomaly, or of a moderate anomaly, or of no anomaly at all; or perhaps indicating that the information available is insufficient to allow any sure diagnosis to be made.

            A psychiatrist or psychologist will ordinarily require the clinical knowledge proper to his own specialization (provided by a personal interview or examination of the subject, coupled with psychological tests) before he is ready to pronounce a positive professional diagnosis, qualified by the degree of scientific certainty which he considers it to merit. While he may be quite certain about the present condition of the subject, he will normally be more tentative if asked to relate his judgment to that person's psychic state at some moment in the past; the more distant in the past that moment, the more tentative will be the judgment. It is different, as we have noted, when documented medical history of psychic illness at that past time exists; in such a case, with the corroboration of the documents, a certain present diagnosis can be justified. In the absence of such clearly documented medical history, a personal examination of the party concerned, many years after the marriage ceremony, may justify a professional opinion regarding the present, but can seldom give scientific certainty about the existence of a grave anomaly at that far-off moment.

            "When many years have passed after the marriage without the spouses having ever consulted or sought treatment from doctors or experts in psychiatry or psychology, it seems almost impossible to conclude with certainty to a psychic anomaly or character disorder at the time of consent" (c. Pompedda, Dec. 16, 1985: RRD, vol. 77, p. 586).

12.       A special problem facing Tribunals is the weight to be given to a psychiatric or psychological opinion, based exclusively on a reading of the Acts, without any interview of the party or parties or without any tests. From a medical or psychiatric viewpoint, the value of such an opinion, completely lacking in clinical support, is certainly quite limited. In practice it is often difficult to see how it differs from a judicial evaluation - proper to the Judge - of the same elements of the case. The fact of noting, from the Acts, a number of character defects, singling them out as symptoms, and attaching a psychiatric label to them, is not sufficient to turn the "peritia" into a true expert opinion, which provides the Judge with information he himself cannot otherwise put together.

13.       The Judge seeks from the Expert scientific knowledge that he himself may not possess, but which, once offered, he must judicially evaluate (cf. A. Stankiewicz: "La valutazione delle perizie nelle cause matrimoniali per incapacità psichica": Monitor Ecclesiasticus, 117 (1993-I-II), pp. 263-287). It is important that the Judge carefully follows the various stages called for by a proper judicial evaluation. First he needs to consider whether the Expert's conclusions are based on acceptable scientific and anthropological presuppositions. He must then see to what extent these conclusions are borne out by the Acts, since the scientific certainty attaching to the Expert opinion is normally conditioned by the degree of this conformity. Finally, he must weigh and decide the juridic relevance of the Expert's findings. If a Judge were to omit this thorough judicial evaluation of the "peritia", reaching a decision simply on the basis of the Expert's diagnosis, then one would have to say it was the Expert who made the decision regarding the nullity, while the Judge limited himself to attaching his signature to a case decided by someone else.

            "It pertains to the Judge alone to make a judgment about the nullity of the marriage. The Expert's task is simply to provide those elements which concern his specific competence, i.e. the nature and extent of the psychic or psychiatric factors in virtue of which it is asserted that the marriage is null. The Code in fact, in canons 1578-1579, expressly requires the Judge to critically appraise the expert opinions" (Pope John Paul II: Address to the Roman Rota, Feb. 5, 1987: AAS vol. 79 (1987) 1457-1458).

            "Hence it would be illegitimate for the ecclesiastical Judge to rely on the simple assertions and conclusions of the Experts, even if they are [professionally] well-known, unless the source of the disabling condition is clearly indicated, the psychic ailment of the person is adequately proved, the seriousness of the disorder affecting him or her at the time of the wedding is demonstrated; and finally unless the psychological concepts used are translated into canonical terms" (c. Pompedda, Nov 25, 1980: RRD, vol. 72, p. 732).

14.       It would be irresponsibile in the extreme if the Judge were to limit himself to a simple repetition of the expert's opinion, without any critical evaluation. Just as he is bound to give his reasons if he rejects the "peritia", showing how its presuppositions or methods are unacceptable, or how its conclusions cannot be harmonized with convincing evidence gleaned from other sources (lay witnesses, etc.), so, if he accepts the opinion, he is equally bound not only to indicate the acceptability of its principles, but especially to show, with detailed references, how it agrees with and is confirmed by the overall burden of the other proofs. Thus, c. 1579, § 2 says: "When he is giving the reasons for the decision, the judge must state on what grounds he accepted or rejected the conclusions of the experts". Simply to accept expert opinion, while failing to check it against the rest of the Acts, involves a dereliction of one's judicial role.

15.       In the case of a "peritia" based largely or exclusively on the Acts, it is elementary to insist not only that the Expert gives a clear diagnosis indicating the gravity of the disorder in question, but also that he makes precise references to those passages from the Acts which in his view support the diagnosis. Only thus can the Judge properly weigh the probative force of the passages cited, and fulfil his judicial mission of deciding whether or not they sufficiently corroborate the Expert's conclusion regarding the presence, nature, gravity, etc. of the anomaly diagnosed.

16.       Among the arguments presented by the Petitioners's Advocate in the present case, we note the suggestion that he suffered from an incapacity for "setting up an equal interpersonal relationship". To have any juridic force, this argument would have to be explicitated in clearer anthropological terms. No one will dispute that there must be "equality" in the married relationship, in the sense that husband and wife share equal personal dignity and rights. But if an "equal relationship" is taken to suggest that the roles of the spouses are identical in marriage, then there is room for disagreement. The marital alliance, characterized by complementarity as much as by equality, is certainly not a relationship where every role is identical. Complementarity does not necessarily apply to all roles or duties, or even to the majority, in married or family life. Who is to keep accounts, or wash dishes, or plan vacations, are functions or tasks that husband and wife can assign between themselves as they please, or even entrust to others. But this is not true of every role. The complementarity/non-identity of roles between the spouses appears most clearly in the matter of having children. The husband can beget but cannot give birth to children; it is the wife who conceives and bears them. With relation to their children, a father can never completely fulfil a mother's role, nor vice-versa. As between the spouses themselves, husband's role is not identical with that of wife, nor wife's with husband's, although it falls more to anthropology than to legal science to take cognisance of the specific differences between the two. The fact remains that the equal dignity of the spouses does not imply an identity of essential roles in married or family life.

17.       It seems the natural plan of marriage that spouses gradually learn to change their focus from a simple mutual relationship to a shared concern for their children. That this happens is a healthy sign, and certainly betrays no wrong concept of marriage.

18.       The validity of marital consent cannot depend on the intensity of feelings of love then present, or on the capacity to have and maintain such feelings later on, for there is no essential marital right or duty to feelings of love. The incapacities contemplated by c. 1095, 3 do not include the inability to have feelings, or to make one's partner have them.

19.       Alcoholism, even if proven to have been present at the moment of the wedding, does not necessarily provoke consensual incapacity under c. 1095, 2. Proof must also be provided that alcohol dependence had a gravely impairing effect on the person's faculties of decision and choice at the time in question. In case of doubt about the gravity of actual impairment at that moment, c. 1060 is to be applied.

III. The Argument

20.       We note that, although the Respondent accepted the Advocate assigned to her by the Court of first instance (I, 22; 24), he takes no part in the proceedings, and in particular presents no Brief. It is hard to avoid the impression that the Respondent's right of defense has not been fully respected.

21.       From the outset we must say that this case has been presented and argued in a confused manner. At times the Petitioner and his Advocate contend that his consensual incapacity (arising from a "Personality Disorder") consisted in an inability to "evaluate" properly the nature of the marital relationship. Such a deficient evaluation could indeed constitute an invalidating lack of discretion of judgment under c. 1095, 2, always provided it were shown to have been serious and to have referred to the essential obligations of marriage. However if the faulty judgment which is demonstrated simply consists in an poor psychological understanding of the other party, this is not the grave and incapacitating lack of discretion contemplated by the canon.

            At other times however the Petitioner's alleged incapacity is rather presented as an inability to "relate" to the Respondent, or to make a true conjugal "self-donation" to her. This claim, insofar as it is thought to have some substance, would clearly have to be dealt with under 1095, 3, not 1095, 2.

22.       The Expert opinion and its judicial evaluation

            The decision in first instance rests totally on a Court expert's opinion, given in 1989 from a simple reading of the Acts, without any examination of the parties. It begins: "I have had the opportunity to study the Acts in the case of James O vs. Eugenia F and with this preparation I am able to state, with medical and moral certainty, that at the time of the marriage, October 9, 1965, James O was suffering from a serious and disabling personality disorder" (125). This unambiguous claim to scientific certainty about the presence - 24 years earlier - of a gravely incapacitating psychic disorder in the Petitioner obviously impresses the single judge, for he accepts totally and uncritically everything that the expert writes. In the Sentence, after a brief "In Iure" part (which quotes several canons - cc. 1574, 1575, 1577, 1578, 1579 - relevant to the use of experts in general, but fails to mention c. 1680 on their use in the case of alleged defect of consent), the four pages (135-138) of the "In Facto" section are made up of a twice repeated word-for-word transcription of the expert's version and opinion of the case (cf. 125-126). The only contribution of the Judge is a single paragraph saying, "The Court finds that this interpretation offered by the Medical Expert is based on the facts as they appear in the Acts of this case; the interpretation is logical and in conformity with the principals of the science of psychiatry. The Court has additional confidence in this testimony because of Dr. B's eminent reputation as a psychiatrist, and his long experience with many Ecclesiastical Tribunals. The Court concludes, therefore, that it would be imprudent to reject this expert psychiatric interpretation of the the facts". The Judge makes no judicial analysis of the Expert's assumptions and judgments.

            The expert, Dr. F. C. B, says: "The correct diagnosis is Inadequate Personality Disorder which bears the code designation 301.82 in the Official DSM of the the American Psychiatric Association". Despite this confident diagnosis, it is to be noted that "Inadequate Personality Disorder" does not appear, under the code 301.82 or anywhere else, in the "Diagnostic and Statistical Manual", neither in the 1980 edition (DSM-III) nor in the latest revision (DSM-III-R, published in 1987).

            Dr. B describes this disorder as "a behavior pattern characterized by ineffectual responses to emotional, social, intellectual and physical demands. While the individual seems neither physically nor mentally deficient, he does manifest inadaptability, ineptness, poor judgment, social instability and a lack of physical and emotional stamina" (125). Expressions such as "inadequate" [personality], or "ineffectual" [response], are extremely imprecise, and resist any useful juridic analysis or application. The "symptoms" listed by the Expert are common defects; insofar as they point to a disorder, this would be per se mild. It is very hard to see how, even if proved to have been present in a serious degree at the time of the wedding, they could cause so exceptional a handicap as consensual incapacity for marriage.

            It is certainly not clear from the Acts that the Petitioner, a highly successful trial lawyer, suffered from "ineptness, poor judgment, social instability or lack of physical stamina". The Expert nevertheless concludes: "there is no doubt that at the time of this marriage, James O was suffering from serious psychopathology" (127). Insofar as reasons for this opinion can be put together they would seem to be: a) the Petitioner's upbringing made him expect there would always be someone "available to gratify his needs and solve his problems"; b) he developed "an enormous capacity to work" (being "an excellent student"); c) he drank heavily; d) "there was no adequate planning for the marriage"; e) the parties "never enjoyed a satisfactory marital relationship" (125-126). As we will see, not all of these assertions are borne out by the Acts. But, even if they were, neither Dr. Bauer nor the Judge explain how they would generate any psychiatric or judicial certainty as to a serious and incapacitating psychic anomaly present in 1965.

23.       The Petitioner's Advocate wished in this present instance to present hospital records of treatment for alcoholism. Nevertheless he acknowledges in his Brief that alcoholism was a postmarriage condition; and he presents the Petitioner's drinking at the time of consent as simply a sign of the underlying Personality Disorder diagnosed by the Peritus (Brief, 2). Consideration of the Petitioner's drinking habits at the time of the marriage can therefore be left for later.

24.       To our mind, the Expert gives a poor summary of the reasons which the Petitioner himself thinks demonstrate his incapacity. Therefore, out of justice to the Petitioner, we will pay more attention to his own arguments than to the Expert's outline of them. Thus we will be in a better position to consider their value in the light of the Acts and of the juridic principles enunciated above.

            One episode in the pre-marriage period is presented by the Petitioner as a clear indication of lack of discretion (and the Expert may have had this in mind when he says: "There was no adequate planning for the marriage"). This is the interruption (by mutual agreement) in the courtship between the parties, while the Petitioner pursued his law studies. In his second instance interrogation, the Petitioner is reminded of a remark made by the Respondent's sister: "The only thing that I find strange about the courtship was... that law school was considered by both parties more important than their personal relationship" (I, 118), and asked: "Looking back, do you now think that making a sentimental relationship take second place to working for your future career, shows maturity or immaturity?" He answers that it shows immaturity "because what I was doing was putting the secondary role of life first. I was putting personal achievement first" (II, 66).

            Whether this shows immaturity or not is debatable (it could be argued that to delay the marriage until his professional position was well established, was rather a sign of maturity on the part of both); it certainly does not show any grave lack of discretion about any essential right or obligation of marriage.

25.       Understanding of roles; marriage as an equal union

            What canonical evaluation is to be made of the Petitioner's claim that his failure to understand the essentials of marriage consisted in a fundamentally wrong idea of respective marital roles? "I was very mixed up about the roles in marriage". For him, the wrong idea was seeing himself as "bread-earner", and her as "wife, mother and homemaker" (II, 64-66; cf. 51; 54; 79); coupled with a basically wrong idea of how husband and wife should relate. Neither of them, he argues, realized that these views are inadequate for marriage.

            "In terms of what I understand about capacity for entering into an agreement, a contract, I didn't understand anything about myself and I didn't understand anything about my wife's needs. I didn't understand what she or I needed from the relationship. I didn't know who I was, so how could I agree to the relationship. I know that now" (II, 75-76).

            Asked in second instance, "Would you agree that the initial mistake was not about the essentials of marriage (a permanent and exclusive bond, having children), but in your failure to understand each other's different lifestyle preferences?", replies: "It was a failure to understand the commitment of marriage" (64); adding, as in surprise: "And this is from two college educated people; two fairly bright people, and products of, at least in my case, nineteen years of Catholic education... The point was that I... couldn't form any relationship" (65).

            He especially blames himself for not realizing that her duty as a wife was to give him affection, and not just to care for their children: "Her job, as I understood it, wasn't the job of a wife... She didn't know what she wanted from me, either... What she needed was someone to take care of her and need her, just as I wanted someone to help me and take care of me. And that was never there for either one of us" (II, 65).

            In second instance, his brother, Gerard, answers questions prepared by the petitioner's advocate. Asked, "How did your brother intend the role of husband and wife?", he replies: "He would be the provider and Gene would do the nurturing". To the question, "Was he able to enter an equal partnership?", he answers, "No". Asked further, "Was he able to "give" himself to his wife-to-be?", he again replies: "No, they were not able to grow together... They were not supportive emotionally" (II, 88-89).

26.       We have commented in the Law section on the concept of "equality" in the married relationship. From the evidence in the present case it seems that the parties divided marital or family roles btn themselves according to a "traditional" pattern. The Petitioner's Advocate insists on this: "He regarded Eugenia above all as a woman who should lead the same life that his mother led - as a housewife fully occupied with the home", and quotes the Petitioner's words: "I wanted a wife that was a housewife; I wanted a wife that was in the house, taking care of kids" (I, 67). But this view or preference, arguably "old-fashioned", is no proof of grave lack of discretion and is without any doubt compatible with valid consent. He himself said in first instance: "we just wanted absolutely two different roles - two different lifestyles, and that didn't mean that we didn't want to be married and didn't want to have children" (67). It does not help a smooth marital relationship if husband and wife have or develop two different lifestyles, but this has nothing to do with consensual capacity.

27.       Incapacity for a "true oblative union"

            As we have said, the Petitioner's alleged incapacity is at times presented as an incapacity for understanding, and at times as an incapacity for fulfilling, what he considers the essential role of a husband (with a corresponding incapacity of the Respondent to fulfil the essential role of a wife). His rotal Advocate states that the "man's incapacity... consists in a lack of affectivity... a lack of capacity of giving himself: a defect, in other words, of oblative capacity..." (Final Brief, 2).

            One notes that the Petitioner often uses the expression "to fail" and "to be unable" as if they were identical in meaning, whereas obviously they are not. "In that personal failure or inability to act properly, we were unable to care for one another as a man and wife should..." (I, 58). "I know where I failed my kids and I know where I failed Eugenia. I didn't fail them deliberately. I was unable, incapable" (II, 75-76). However, to fail in doing something does not prove that one was unable to do it. He does affirm that his failure was not deliberate, adding, "I failed because I was a victim of disease" (ibid.); but no proof has been adduced of any serious psychic condition at the time of marriage which would have made it not just difficult, but impossible, for him to carry out the essential duties of marriage.

            His main contention throughout is that they failed - or were unable - to work out a satisfactory relationship, according to his idea of how husband and wife should interact. He blames her as much as himself; perhaps even more. He says that now he would never marry her, "because I know that she would not address those needs that I have a right to seek satisfaction for in a marriage - mutual help and friendship" (I, 58). Here he seems to describe as simple unwillingness what he has elsewhere called incapacity.

            As we have just noted, he says he failed his children; yet at other moments he insists on his efforts to be a good and loving father (II, 52; 54; 57), providing generously for them (ib. 59; 67-68; 76). So when he says "we were both in the marriage to take - not to give" (59), it is not quite true.

            Given the ambiguity, or perhaps simple confusion, in the Petitioner's argument, the Turnus, having met to decide the case on April 1, 1993, thought fit to decree a "Dilata", so that the doubt could be reformulated and the case judged also on the basis of c. 1095, 3, "as in first instance". The Defender of the Bond however had objections to this; so the doubt as originally formulated was let stand. Nevertheless, we cannot adequately respond to the Advocate's argumentation unless we also consider whether the Acts in any way show that the Petitioner was radically incapable not just of evaluating the essential obligations of marriage, but also of assuming them.

            Do the Acts reveal any radical incapacity in the Petitioner for fulfilling the essential duties of a spouse or father? In this marriage (as in every marriage) deficencies no doubt existed on both sides, but there is also clear evidence of the fulfilment, by the man too, of major conjugal duties over a large part of the 22 years that the union lasted. We would note the following.

28.       Indications of a fairly normal married life over many years

            The Expert considers that the parties "never enjoyed a satisfactory marital relationship", and takes this as proof that "There was no adequate planning for the marriage" (126). Whether a marital relationship is "satisfactory" or not, has little bearing on its validity. In any case the burden of the evidence is that the marriage was normal enough, during many years at least. His daughters say: "Mom adored him" (94). The Respondent's sister (119-120) and her friend, Sister H, C.S.J. (122), testify to a happy marriage relationship at the start, which he himself admits (II, 51). As for the witnesses, his brother, Gerard, is the only one to describe the marriage as a "destructive relationship" (85). That a serious deterioration occurred only in the last years of their married life together is borne out by the psychiatric report of Dr. A. (May 1987), which the Petitioner himself submitted in second instance: "Patient reports that... he and his wife have not been getting along in the past 2 to 3 years and their marital problems have escalated to the point where he feels that they are finally getting a divorce" (II, 45). His sister confirms that she first noted serious problems about 1985 (120).

            Reminded of his previous testimony, "the marriage day was a happy one" (I, 56), he was asked in second instance: "Were there moments of happiness in your married life, at least at the start?", and replied: "Yes, there were. The birth of my three children. I guess initially the first couple of weeks with my wife had some happy moments" (II, 51-52).

29.       His affection as a husband

            In first instance, he had stated: "I'm sure that I felt... that I loved her very much. I think it was mutual" (I, 66). In this present instance, reminded of the evidence of the Respondent's older sister, Marie T - "Both Jim and Jean were proud and loving parents. Jim was more demonstrative in his love of his children than any man I know. He was also proud and affectionate to his wife. Jean, in turn, was proud of him and his successful career" (S. 119) - , he is asked: "Were you affectionate towards your wife? Was she proud of your career?" His reply is: "Ostensibly, yes, I was affectionate toward my wife to the outside world and very early on in the marriage that was returned. I was affectionate, of course, for the wrong reasons" (II, 53). One is certainly living an obligation of marriage in being affectionate to one's partner, even if this is for the "wrong reasons".

            Reminded of the evidence of Sister H - "He often declared how much he loved Jeannie but I believe that in truth he was emotionally dependent upon her" (123) - , he is asked: "Allowing that love usually involves some sort of emotional dependence, how much would you say that you were in love with your wife?". He replies: "I am sure there was affection there, and I might add that up until recently there probably still was affection... but there wasn't the love that I had come to understand and realize is possible in a marriage" (II, 56-57).

            That, with the exception of his drinking problem, he claims to have been a good husband, would seem to underlie his remark: "the ingestion of alcohol gave me peace away from her and gave her a reason to complain about me because ostensibly she didn't have any other" (II, 51-52).

30.       His duties as a father:

            "I think we both proved we were very loving parents, and we tried our darndest with our kids and that was really the focus and justification of our lives. I was a good provider... because I was a great worker. She viewed herself as a very attentive and indulgent mother. That's what we both focused our lives on, not the great helpmates, from me to her or her to me" (II, 57).

            Here again the argument seems to be that because the spouses' way of living the obligations of marriage was incorrect, they must have had a grave lack of discretion about these obligations in the moment of consent. However, as we pointed out in the Law Section, attention of the spouses to their children rather than to each other, even if proved, shows no fundamentally wrong concept of marriage, or wrong approach in living it.

31.       Spousal inability to be mutually caring?

            Reminded of his earlier evidence, "I don't know the reasons why this marriage was doomed from the beginning... We both failed (not one another) but ourselves. In that personal failure or inability to act properly, we were unable to care for one another as a man and wife should..." (58), he is asked: "You speak of "failure or inability": which do you think it was?" "Inability", he says; since, as a husband, "I went out and worked, put food on the table... I didn't know what a good marriage was, but I also knew that I wasn't getting what I thought I should get". Asked at this stage, "What did you think you should be getting?", he responds: "I'm not too sure about that, but I do know that part of what I thought I should get was the way I saw my mother treat my father, and I wasn't getting that" (II, 60).

            Here his alleged incapacity (of assuming or fulfilling some essential obligation) would be borne out by his having limited himself to a false or inadequate role ("putting food on the table"). Nevertheless, a little before he had asserted: "I was a good dutiful husband to the outside world. They thought I was wonderful" (II, 51-52). One further notes that it is not so much himself as the Respondent whom he is accusing of incapacity; of being unable to give him what he expected.

            "We kept under the same roof and portrayed the great mother and father and did our best to portray a loving couple to our kids. But it was all form, no substance on both our parts" (II, 51-52). By "form" here, he seems to refer to the actual fulfilment of duties; by "substance", to the fact that they were fulfilled - he claims - without any underlying feelings of love. But, as we have mentioned earlier, there is no essential marital right or duty to have or to communicate feelings of love.

            Even if we allow that there was a failure to act as he apparently now thinks a husband and wife should, we find no proof that party either was incapable of acting otherwise; less still does any essential obligation of marriage appear to be involved in what he alleges. He may not have been treated as he would have liked - according to the memory he has of his mother's way of treating his father; but not every aspect of one marriage necessarily marks an obligatory pattern for another.

32.       Codependency

            He sees his lack of discretion (or incapacity of assuming) proved in his having done the right things for the wrong reasons. "I was affectionate, of course, for the wrong reasons. I was affectionate because I begged for approval and it's all part of a phenomenon that has been explained to me as codependency. If she liked me and took care of me, that meant that I was doing the right job" (II, 53). "we were codependent up to the hilt. I was codependent with her..." (ib. 56)

            Asked in second instance, "would you say that you were emotionally dependent upon her?", he replies: "Absolutely" (II, 57). He clearly regards this "codependency" as a defect, an indication of immaturity, and proof of a radical misunderstanding of the marital relationship. We consider that "codependency", considered in an anthropological rather than a mere medical connotation, is a natural and good thing between husband and wife, tending to strengthen the bond that unites them.

            Moreover, the assertion that their marriage suffered from "codependency" seems to be in contradiction with his complaints noted earlier of not finding any spousal support (a "great helpmate") in the Respondent: "not the great helpmates, from me to her or her to me" (II, 57).

33.       Alcoholism

            The appealed decision was not based on the Petitioner's alcoholism. Nevertheless, his rotal Advocate chose to present hospital reports on his treatment for this condition, arguing that the Petitioner's weakness for drink is to be seen as a symptom that confirms his Personality Disorder: "The Petitioner's penchant for drink at the time of the marriage is not necessarily to be considered the cause - or at least the only cause - of his incapacity for emitting valid matrimonial consent; but it is at least a sign and confirmation of the existence of a personality disorder in James and of his psycho-affective immaturity" (Brief, 20). So we should end with a word about this point.

            The Court Expert (and therefore the Judge, who follows him in everything) claims that the Respondent's "testimony in every way corroborates that of James" (126; 136; 138). This is certainly not true regarding the seriousness of his pre-marriage (or even post-marriage) drinking. Asked "At the time of the marriage, how much was he drinking?", she replies: "It was hidden; I really can't say"; "it was not recognized by me" (73-74); "I did not know [that he was drinking heavily at the time]" (76). She insists that even later, when his alcoholism developed, she never saw signs of a "loss of moral sense" which, so the Judge Instructor told her, rotal jurisprudence considers one indication of incapacitating alcoholism (74).

            He himself says: "I drank heavily from the time I was 15-16 years of age. I always functioned as a worker, student and lawyer so that I never recognized alcohol as a problem before my marriage" 52 ... "Drink never interfered with my function as a lawyer. It numbed me in all other aspects of my life" 53); this latter point is unproved.

            His brother, Gerard: "Jim had always been a heavy drinker. Somewhere along the way he became an alcoholic" (85). His daughters, Elizabeth and Jeanmarie, testify explicitly that their father's alcholism was a post-marriage development; adding that his claim to have been alcoholic since the age of 15 is a recent invention (93-94). Sister H states, "In the more recent past I became aware of Jimmy's alcoholism" (123).

            In second instance, the following was put to him: "You testify that in the years following the birth of your third child [1971], you were depressed, "and saw Dr. Edward M... He did not think that I was an alcoholic" (I, 59). You also state: "I never recognized alcohol as a problem before my marriage" (ib. 52). You also quote your daughter as saying, "that drinking wasn't the reason for our discontent, and that 'they have been fighting since I was a baby'..." (ib. 57). You also testify to your ability, in your twenties, to control your drinking: "When I got into Law School,... I had to cut it down to one night a week" (ib. 65). Would you agree that, from this evidence, your situation regarding drink at the time of the marriage, more than one of alcoholism, was rather that of having, as you say on p. 65, "a phenomenal capacity" to take drink?" The Petitioner rejects this reading of the evidence - "No, what that history reflects is the normal progression of alcoholism" - and explains: "Certainly, even when you abuse it initially, since it hasn't taken control of you emotionally and physically, you can still control it. The need or want to be able to control something means it is out of control already, so by definition, I was an alcoholic when I wanted to control it" (II, 47). Without attempting to evaluate this contradictory statement, we note the admission that he could "still control it". He declares that he "finally put alcohol down... in 1987" (II, 69). From which it would seem that he had that control he had spoken about.

            His brother, asked in second instance if he was an alcoholic, simply replies, "He was a heavy drinker" (II, 88). He himself admits that heavy drinking began after parents died [in 1970] (66; cf. 83). The earliest medical records exhibited date from 1984 (19 years after marriage), and relate to his alcoholism at that time. The Hospital report says: "The patient stated that ... he has been drinking since he was a teenager and feels that it has been a problem for the past ten years" (II, 24). These reports are far too late and inconclusive; nothing can be proved from them about any definitive degree of alcoholism in 1965. There appears to be no further medical point that can be clarified.

34.       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 on the part of the Petitioner concerning the essential matrimonial rights and duties which are to be mutually given and accepted, according to the norm of c. 1095, 2".

            Given in the Tribunal of the Roman Rota, April 29, 1993.

            Cormac BURKE, Ponens

            Thomas G. DORAN

            Kenneth E. BOCCAFOLA