cormacburke.me.ke

[English version in Studia canonica, 29 (1995), pp. 241-253]

I. The Facts

1.         David and Danielle met in 1962 when the petitioner was doing military service with the U.S. Army in France. On his return home, they kept corresponding until she came at his invitation to attend his sister's wedding in August 1967. They then first spoke of getting married which actually occurred at the end of that same year. He was then 25 years old, and she was 27.

            Their conjugal life was unhappy from the start, and broke up after two years when the respondent returned to her country. He went twice to France in the hope of persuading her to come back, but in vain. In 1972 they were civilly divorced. In 1987 the petitioner asked the Tribunal of X for a declaration of nullity, alleging two grounds: lack of due discretion of judgment on his part, and on that of his wife. On July 14, 1989, the Diocese of X, in a one-judge affirmative decision, declared the marriage null on the grounds of lack of discretion on the man's part alone.

            The Respondent having appealed to the Roman Rota, the case was sent to this Apostolic Tribunal on September 21, 1989. The Defender of the Bond, with the concurrence of the Promotor of Justice, then lodged a complaint of nullity against the Sentence. On Dec. 13, 1989, our Turnus declared the Sentence null, on the grounds of violation of the right of defense of the Respondent (cf. Studia Canonica, 25 (1991), pp 193-198.).

            The Dean of the Rota then called the whole case to the Rota. By a Decree of Feb. 18, 1991, the Acts of the hearing at the X Tribunal were incorporated into the instance at this Apostolic Tribunal. Gratuitous legal assistance having been granted to the parties, they were both once again judicially interrogated. Finally an Expert opinion, based on the Acts, was obtained. The respective Briefs having been presented and the Observations of the Defender of the Bond examined, we, hearing the case in first instance, must now therefore reply to the doubt concorded on Jan. 10, 1991: "An constet de matrimonii nullitate, in casu, ob defectum discretionis iudicii utriusque coniugis ad normam canonis 1095, 2º".

II. The Law

2.         The "ius nubendi". One of the first and most basic human rights is the right to marry (cfr. Gaudium et Spes, 26, 29, 87). Acknowledged by the Code of Canon Law (c. 1058), it in fact antecedes all positive law. In the natural course of events, most people tend to marry young: at the start or in the early years of adult life. People at that age obviously lack the maturity which only prolonged experience of life can bring; and therefore the Church is concerned that all possible pastoral means be used to help such young people make a prudent choice (cfr. cc. 1063-1065; 1072). For the validity of their consent, however, the Church does not and cannot demand a maturity that would be out of proportion to their years.

            The balance of the matter is well expressed in a Sentence coram Pinto of June 26, 1969: "Because of the unique importance that marriage has for the contracting parties, as well as for the family and for human society, it is very necessary that, before it is celebrated, the parties should exercise greater deliberation than in the case of other contracts. However one has to avoid demanding for its validity such maturity of judgment and such freedom as are only found in full adult age. For as St. Thomas says, «in matters towards which nature inclines, the same vigor of reason in deliberating is not required as in other matters. Therefore, given sufficient deliberation, a person can more readily consent to marriage than settle his affairs in other contracts without his tutor» (Suppl, q. 58, art. 5 ad 1)" ("Ob singulare momentum quod matrimonium sive pro contrahentibus sive pro familia ac humana societate habet, expedit omnino ut antequam illud celebretur contrahentes maiorem deliberationem quam pro aliis contractibus adhibeant. Cavendum tamen est ne ad eius validitatem exigatur talis iudicii maturitas tantaque libertas quales solummodo in maioritate inveniuntur. Nam, ut ait S. Thomas, «in illis ad quae natura inclinat, non exigitur tantus vigor rationis ad deliberandum sicut in aliis. Et ideo ante potest sufficienter deliberans in matrimonium consentire quam possit in contractibus aliis res suas sine tutore pertractare»... ": RRD, vol. 61, p. 655-656.).

3.         Limitations on the right to marry. Not everyone can rightly claim to exercise the "ius nubendi". Canon 1058 says, "All persons who are not prohibited by law can contract marriage". Canons 1083-1094 indicate a series of impediments, based on divine or human law, which prevent a person from validly marrying. Canon 1095 deals with the person who is under no such impediment, but is simply incapable of valid matrimonial consent, due to the absence of sufficient use of reason (no. 1), or to some radical defect in his or her powers of choice (nos. 2 & 3). The incapacity, under nos. 2 or 3 of the canon, to exercise this basic human right, represents a grave deprivation and disability - which can only occur in the case of truly abnormal persons whose estimative/elective faculties are severely impaired.

            "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: 1987 Address to the Roman Rota (AAS vol. 79, p. 1457). It is clearly contrary to the mind of the Legislator, to the tenor of c. 1095, and to natural justice, that consensual incapacity should be attributed to a person simply because of slight or moderate defects of personality, such as might be shown by a certain immaturity in thinking, inconstancy in conduct, lack of responsibility in the management of affairs, etc.

4.         Normality and valid matrimonial consent. Gordon W. Allport, Professor of Harvard University, stands among the best-known psychologists of this century. The British Journal of Psychiatry describes him as "one of the most influential personality theorists" (vol. 150 (1987): p. 448), while in rotal jurisprudence he has been referred to as the "illustrious psychologist" (RRD, vol. 73 (1981), p. 313). Allport roundly states that "Psychologists cannot tell us what normality, health, or maturity of personality mean" (Pattern & Growth in Personality, New York, 1961, p. 307); and later (ib. p. 567) he quotes G. Murphy: "all normal people have many loose ends" (Personality: a biosocial approach to origins and structure, New York, 1947, p. 661). All of us, in other words, suffer from psychological "anomalies", which affect and may indeed partially reduce our capacity of understanding and/or of willing, without thereby substantially undermining it.

            "The Creator instituted matrimony for ordinary men and women, and it therefore does not require that keenness of intellect or deep and prolonged reflection which is only found outside the daily course of affairs and in persons who stand above the ordinary run of people" (c. Colagiovanni, Dec. 11, 1985) ("Matrimonium pro ordinariis hominibus et mulieribus Creator praestituit atque ideo non illam aciem intellectus, diuturnam et profundam necnon elatam ponderationem exquirit quae solummodo extra ordinem cotidianum invenitur et in personis quae communem populum superant": RRD, vol. 77, p. 571.).

5.         One cannot therefore but approve the emphasis with which one of the most distinguished of contemporary canonists insists that, for valid marital consent, "there is no need for an above-average intelligence or for mental health that is free from any defect; there is no need for full and absolute maturity of judgment; there is no need for a capacity that covers every aspect of life, even of married life! On the contrary, what is sufficient is a use of reason adequate to the act of consent. It is enough to be free from a grave defect of discretion that relates to the essential rights-obligations involved" (M.F. Pompedda: Studi di Diritto Matrimoniale Canonico, Giuffré, 1993, p. 488).

6.         We would add that an intellectual dullness, a lack of formal education, an academic backwardness, a disinclination for higher studies, a preference for manual work...; none of this constitutes proof of a lack of the necessary discretion of judgment required for valid matrimonial consent.

7.         Discretion and foresight. While jurisprudence is agreed that the exercise of the discretion needed for marriage calls for a practical and not merely a speculative judgment, "it does not follow that the contracting party must necessarily weigh all the social, ethical or juridic consequences that flow from the marriage contract, along with a 'projection' or foresight of the many or innumerable duties that conjugal life can require of the parties" (c. De Lanversin, Feb. 8, 1984) ("non ideo contrahens necessario perpendere debet omnes sequelas sociales, ethicas, iuridicas ex contractu matrimoniali obvenientes, una cum «proiectione» seu praevisione plurium seu innumerabilium onerum, quae vita coniugalis potest exigere a contrahentibus": RRD, vol. 76, p. 90.). So c. 1095, 2º cannot be taken as basis for requiring foreknowledge of all that marriage (especially a concrete marriage) may involve. Mere superficiality in judging does not constitute a grave canonical defect of discretion.

            A lack of due discretion is therefore not proved by failure to anticipate the difficulties in interpersonal relations that would occur in conjugal life. Difficulties are in fact bound to arise, since every marriage is between two persons with defects. Not many persons have a full knowledge of their own defects; and perhaps fewer still have an accurate and objective knowledge of the defects of others, least of all when they happen to be in love with a person. "Love is blind", goes the saying, summing up what seems to be a law of human nature, in particular of the romantic love which normally accompanies the decision to marry. Parents, relatives, friends, pastors, can all judge (correctly or not) the advisability of a particular marriage. But each person, who is not otherwise incapacitated, has the right to make a marital choice, however unwise it may be, or seem to others. Incapacity is not proved by the possible imprudence of a particular choice; it must be proved otherwise.

8.         Ecclesiastical courts therefore are not called on to judge the wisdom of a concrete marital choice, nor can they take an apparently "unwise" choice of a particular partner as proof of consensual incapacity under c. 1095, 2º. The canon specifically relates the invalidating lack of discretion not to the [judgment about] the concrete partner chosen, nor to the "desideranda" for the particular marriage being entered, but to the essentials of the marital institution as such; it is in relation to these essentials, not to one's partner, that discretion must be adequate. Invalidity is not provoked by a mistaken judgment about the sort of person one's proposed partner is (except where the false judgment has been caused by deceit, within the terms of c. 1098), no more than it is by a false judgment about the sort of person one is oneself. The canon requires a minimum of discretionary judgment, not a high degree of psychological perception.

9.         This is important also in relation to the difficulties that conjugal life is bound to run into, all the more so if the spouses come from different countries and cultural backgrounds. Mere thoughtlessness or defective foresight about "difficulties in interpersonal communication" likely to arise from these differences, has nothing to do with the invalidating lack of discretion contemplated by c. 1095, 2º. To judge that the married life of a couple was marked by a "lack of ability to relate", and thence to conclude that their failure to foresee this "incompatibility" proves a grave lack of discretion of judgment under c. 1095, 2º, not only turns foresight or compatibility into essential juridic obligations of marriage, but seems to invoke some hazy notion of "relative indiscretion", which is as unacceptable from the jurisprudential point of view as is that of "relative incapacity".

10.       One of the previous Courts in the present case referred to "problems with intimacy" in the married life of the couple. We are not sure what relevance the Judges wished to attach to this, in terms of the grounds of nullity adduced. A court can judge if the right to physical intimacy - on an exclusive and permanent level - is given, or if there is capacity for it. But it is hard to see how a minimum juridic content of a right to spiritual or characterial intimacy can determined by law.

11.       Characteristics of being passive, reserved, unsociable, etc. do not deprive a person of his or her right to marry, neither under no. 2 nor no. 3 of c. 1095. A person with such traits is quite likely to seek support in married life; and his or her partner can see these defects, and still choose to marry him or her.

12.       Personality defects. The fact is that defects of character or personality are legion, and some defect or other is to be found in every single person. A pattern or connection can often be established between certain types of defects; and when they exist together in the same person, it can be helpful for clinical purposes to use a particular term - "obsessive", "dependent", "narcissistic", "phobic", "passive", etc. - in order to typify the resulting overall disorder. Such adjectives give some idea as to the nature of the disorder, but none as to its possible seriousness.

            Psychiatry has in fact been trying over decades to develop commonly accepted terminology and diagnostic standards for identifying different types of psychic disorders. The frequent revisions of the well-known "Diagnostic and Statistical Manual" of the American Psychiatric Association are hopefully an indication that progress is being made in this attempt. Nevertheless, the scientific basis and worth of much of the work done have been searchingly questioned from within the field of professional psychiatry itself. "A Debate on DSM-III" (American Journal of Psychiatry, vol. 141 (1984), pp. 539-553) is noteworthy, inasmuch as it contains strong criticisms of DSM-III from leading psychiatrists (pp. 542-545; 548-551). Even among defenders of DSM-III, Dr. Robert L. Spitzer, the main mind behind the work, acknowledges that its diagnostic categories "are actually hypotheses" (ib. p. 546).

13.       The advent of DSM-III-R has not satisfied the critics. The President of the American Psychiatric Association, Dr. Lawrence Hartmann, in the 1992 Presidential Address to the Association, referred to both DSM-III and DSM-III-R as "relatively superficial and undynamic" (op. cit. vol. 149 (1992), p. 1137), and as "useful to nonclinical simplifiers", adding: "they have helped many aspects of psychiatry, but harmed many others. They emphasize clarity and reliability, but sacrifice validity and the whole person" (ib. 1139). This criticism is taken up and developed by Dr. Mitchell Wilson in a later issue of the same review (vol. 150 (1993), pp. 399-410: "DSM-III and the Transformation of American Psychiatry"; see in particular, pp. 400, 404, 405, 408). Another psychiatrist, Dr. R.S. Sagar, claims that the ambiguity of DSM terms for diagnosing 'mental disorder', "leaves sufficient leeway for the clinician to ascribe to them whatever meaning suits his or her initial judgment" (op. cit. vol. 146 (1989), p. 1078). A frequently made criticism of DSM is that many of the substantial changes which distinguish one edition from another have been influenced not so much by scientific considerations as by political or ideological pressures (cf. op. cit, vol. 141 (1984), p. 540; vol. 147 (1990), p. 1272; vol. 150 (1993), p. 404).

14.       When an expert opinion is sought today in cases concerning consensual capacity, most experts base (and are often asked by the Court to base) their diagnosis on the categories offered by DSM: the practice seems logical. Nevertheless, those Judges who tend to accept simple references to DSM or quotations from the work as if they were endowed with intrinsic juridic authority, would do well to re-read the "Cautionary Statement" with which the Editors of the Manual have prudently wished to preface it. "The purpose of DSM-III-R is to provide clear descriptions of diagnostic categories in order to enable clinicians and investigators to diagnose, communicate about, study, and treat the various mental disorders". The statement insists that the choice of a particular diagnostic category "does not imply that the condition meets legal or other nonmedical criteria for what constitutes mental disease, mental disorder, or mental disability"; and that the considerations of a clinical and scientific nature leading to the categorization of certain conditions as mental disorders "may not be wholly relevant to legal judgments, for example, that take into account such issues as individual responsibility, disability determination, and competency" (p. xxix).

15.       The contribution of the Expert. Many psychiatrists may be satisfied with the diagnostic classifications offered by the present "Diagnostic and Statistical Manual" (and of course DSM-IV is about to appear); others apparently are not. While canonical judges are wise to note this, it is nevertheless not a matter of great importance to them. In the case of a plea of consensual incapacity, what the ecclesiastical Judge seeks in an expert opinion, if he sees the need for one, is not a simple diagnostic classification. He is looking for a concrete professional judgment, if it can be given. He wants a specific diagnosis covering: 1) the possible presence in the subject, at the time of the wedding, of a psychic anomaly; 2) its nature; 3) its gravity; 4) its effects on a person's capacities and decisions; 5) the scientific proofs or arguments justifying the expert conclusions: direct examination of the subject, clinical records, psychological tests, indications drawn from a simple reading of the Acts, etc.

            The Judge's interest must center on the last three points (3-5), for it is these - subjected to proper judicial evaluation - that can assist him in maturing his judgment. A Court is not substantially helped by being informed that a person suffers from some sort of 'psychic disorder'; everyone does. Church law is quite clear: only an anomaly that is grave, certain to have been present at the moment of consent, and incapacitating in regard to the essential obligations of marriage, can provoke consensual incapacity.

16.       It follows that the simple diagnosis of a "Personality Disorder", without any scientifically based judgment as to its gravity, offers no juridic support for consensual incapacity (cf. decision of the present Ponens of April 22, 1993, n. 4 (Studia canonica 28 (1994), p. 242). Personality Disorders are frequent, and are often found in a mild or moderate form. 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), Avoidant Personality Disorder (352), Dependent Personality Disorder (354), and Obsessive Compulsive Personality Disorder (355) (cf. pp. 242, 246, etc.). Further, even if such a disorder were diagnosed as grave, the Court must still weigh the question of whether and to what extent it affected the understanding and/or assumption of the essential obligations of matrimony.

17.       We have elsewhere commented on the reduced value for the ecclesiastical Judge of Expert opinions based exclusively on a reading of the Acts of a case (cf. Sentence just cited; nn. 11-15 (ib. pp. 244-246.). Any "Peritia super Actis" which is to merit judicial confidence, must be seen to weigh all the evidence. The Judge must note if this is not so; for instance, if the Expert bases his opinion on one or two witnesses, ignoring, without good reason, contrary evidence given by others.

18.       Experts have either been poorly instructed, or have understood their instructions poorly, if they invoke facts or traits that might be relevant under c. 1095, 3º, when the expertise required of them is for a case being heard under 1095, 2º. If the Expert's findings do seem to suggest some real "incapacitas assumendi", then the Court can consider the possibility of introducing this new ground, even, if the case is being heard at the appeal level, 'as in first instance' (cf. c. 1683). But the Judges, in weighing the expert opinion, must see that suggestions of an incapacity to assume are irrelevant to a plea of grave lack of discretion. Personal dispositions, such as (to quote what an Expert in the present case diagnosed in the Petitioner) "social alienation", "impulse control problems", "exaggerated needs for affection and support", "distrust of others... fear of emotional involvement, vulnerability, and potential hurt [which] make close emotional attachments difficult to establish", have no relationship to the issue of discretion of judgment. For that matter, the particular characteristics mentioned offer no grounds to sustain a plea of "incapacitas assumendi", for there seems no way in which they can be related juridically to any essential obligation of marriage.

19.       One of the Experts in the present case observed of the characteristics just mentioned: "These personality traits are likely to be permanent and... would be most destructive in intimate, interpersonal relationships... Given the right partner, who could accept some of these problems, he could find a stable, permanent marital union not only possible, but very valuable" (166). This last phrase hints at one of the many difficulties offered by the thesis of relative incapacity. The Petitioner is considered incapable, because he did not find the "right" partner. Was it his defect, or was it that of the Respondent who "could" not - or did not - respond in the "right" way? If she had chosen to respond in the right way, would they have been relatively capable or incapable?

III. The Argument

20.       The main elements which might provide some basis for upholding the plea in the Petitioner's case are his rather limited intellectual endowments and the abruptness of the proposal to marry, followed by actual marriage within two months.

            There was friendship between the parties during the two years that they knew each other in France, but no mention of marriage (X Acts 45; Supplementary Acts 11; 22/3). That they kept caring for each other seems to be shown by the maintenance of correspondence over the following three years (X 32a; 45; SA 10/15). The Respondent describes the proposal of marriage. "Le lendemain de mon arrivée aux U.S.A. David m'a priée de devenir se femme.... Puis nous sommes revenus dans la salle où se trouvait toute sa famille et il a déclaré qu'il voulait m'épouser et que j'avais accepté... ma future belle-mère a demandé à son fils s'il pouvait subvenir aux frais de fonder une famille. David a répondu que oui, et que depuis 10 [?] ans il m'aimait, qu'il n'aimait que moi; qu'il avait attendu tout ce temps et qu'il n'aimerait jamais que moi" (SA 22-23).

            The proposal, though sudden, does not however seem to have caused any special negative reaction in his family at the time. He testifies that his mother "was happy like any mother would be" (ib. 11/20).

21.       Evidence relating to the discretion of the parties: His parents, brothers and sisters state that his family background was stable and psychologically healthy (X 87/5; 95/5; 106/5; 119/5; 129/5; 147/5); and that neither spouse had any history of psychic illness or emotional disturbance of any kind (ib. 91/26; 101/26; 112/26; 137/26; 154/26).

            Most witnesses thought the parties mature and stable at the time of marriage. His parents: "David seemed to be matured enough to marry" (120); "Both were emotionally well balanced" (121). Mary H, his sister, who is very hostile to the Respondent, acknowledges: "One might conclude that both parties were mature and competent to enter into marriage - depending upon how one defines those terms" (108). Anna T, his other sister: "At the time, I really didn't think there was any reason for their proposed marriage not to be successful" (130); "he appeared to be mature and competent to enter into marriage" (132); "I felt he was able to take on and carry out the normal duties and obligations... of married life, for a life-time" (133); "Since David was in the Army, I feel he developed discipline and grew in responsibility" (133); "I felt both parties appeared to be stable persons... It appeared both parties were emotionally well-balanced" (136). His brother Paul: "Yes. They were both mature people... Both were emotionally balanced..." (148/13-20). Donald L, uncle of the Petitioner: "Both parties seemed to be mature and competent to enter marriage" (153/13); "Both parties emotionally well-balanced" (154/20). Even the two of his brothers who doubt his maturity, admit his stability. Thomas, who is a psychologist, states, "David was stable" (89), while John remarks: "Both probably could have been considered stable persons" (100); "Danielle was emotionally well balanced as well as David. However, David was marginally so" (102). The Petitioner's sister, Mary, is the only one to consider that neither was stable (110).

22.       Regarding the Petitioner in particular. Turning our attention more particularly to the Petitioner, we note that he was one of six children, and the oldest of four brothers. He had experienced a very happy family background, and maintained a very good relationship with his parents (32; 39).

            The Respondent's impression when she met him again after three years was that, "David n'avait pas beaucoup changé, seulement mûri..." (45). She adds: "Mon mari semblait un garçon stable, très patient puisqu'il avait attendu de nombreuses années pour me déclarer son amour, je pensais également qu'il serait un bon mari et père de famille..." (48/11). She now qualifies this, with hindsight: "Maintenant avec le recul, je vois mon mari tel qu'il était vraiment, instable, assez insociable, peut-être trop timide ou avec des problèmes d'infériorité... Au fond je pense que c'était un solitaire" (49/15). These defects are evidently not such as to sustain the Petitioner's plea.

23.       Despite the unanimous affirmations of his family that he had no type of psychic history, faint suggestions are made about the adverse psychological effects of a childhood illness. The nature of the illness is unspecified, however, and its effects would seem to have been no more than a form of amnesia. In her first judicial deposition the Respondent says that she learned after the marriage about this illness and amnesia (47). Later she writes to the X Tribunal that the main cause of the marital breakdown was a "grave case of mental illness and amnesia", which the Petitioner experienced when young (60). However this is the only reference in the acts to "mental illness"; and it is not supported elsewhere. Asked in a later deposition about his "dépression mentale", she only mentions amnesia (79). In the present instance, asked specifically, "Quand avez-vous appris pour la première fois sa débilité mentale?", she again talks only about amnesia. Before the marriage, "David avait un comportement timide, mais qui ne m'a pas paru anormal. Quand j'ai appris que David avait eu son amnésie... j'ai compris que David ne pourrait pas accéder à un niveau supérieur de situation; alors que tous ses frères sont: professeur, psychiatre, haut fonctionnaire..." (SA, 23-24/6)

            His brother John says: "My mother evidently blames herself for an illness when David was perhaps 4, 5, or 6. She never has been able to recognize or admit that David probably suffered some "minor" brain damage from an elevated temperature. That evidently left him with a reduced IQ compared to the rest of the children, although not sufficient to affect his basic reasoning or ability to perform laboring type work" (X 94).

24.       In his deposition in this instance, when told of the Respondent's charge that she had been deceived by him about his childhood illness, the Petitioner flatly denies the charge, or the existence of any illness: "There was no illness that affected me" (SA, 9/8).

            The Petitioner is quite insistent as regards his own consensual capacity: "I decided to ask her to marry me because I loved her... It was my free choice. Yes, I gave it due deliberation and forethought. The decision was thought out very carefully and I thought the marriage would be forever. I believe a true and binding marital consent was exchanged at the time of the ceremony" (X, 39/29-32). "Getting married seemed like the best thing to do. We thought we'd be happy. We talked about having five or six children" (32a).

25.       His brother, Thomas (a clinical psychologist), and another brother, John, are the only ones to suggest that he was not mature for the marriage. In support of this, Thomas simply refers to the fact of the Petitioner's character: "very shy and unsure of himself; he tended to make a decision without thinking through the consequences"; "stable but not insightful" (89); while John says, "David probably was not emotionally or mentally mature or competent enough at the time to enter into the marriage" (99), and later speaks more specifically of his "Mental incompetence" (101).

26.       Regarding the Respondent. If we now consider the case of the Respondent, we must say that nothing in the Acts indicates a grave lack of discretion in her regarding any essential marital duty. The original X Sentence, which we declared null, found against the plea in her case (182). When asked, "La décision de se marier était-elle bien délibérée ou était-elle le fruit d'une réaction impulsive?", she replies, "Pour David, j'ignore. Pour moi; oui. J'ai réfléchi et j'ai accepté volontairement. J'ai été très touchée par la fidélité de David à m'attendre pendant 10 ans, et j'y ai répondu en toute honnêteté et connaissance de cause" (SA, 23/5). It may well be that some interested motives entered into her decision to marry; but that is no indication of an invalidating lack of discretion. The Petitioner's brother John says: "Danielle was emotionally well balanced" (X 102).

            We should note that this witness, John, as well as the Petitioner's sister, Mary, lose quite a bit of credibility when they categorically state that the Respondent got pregnant before the wedding, and that this influenced the decision to marry (98; 107). His mother (120) and brother Paul (148) repeat this (cf. 130-131); but both the Petitioner and the Respondent deny it (38/16; 84/9). Although he asserts the nullity of the marriage, and she its validity, their testimonies concur as to the main facts of the case. The version of the parties should therefore be accepted, despite the contrary affirmations of some witnesses.

27.       The Expert opinions. From his examination of the Acts, the rotal Expert, Prof. A., rejects any diagnosis of mental backwardness on the Petitioner's part (cf. the suggestion made by his brother of "Mental incompetence"), but he does conclude to his immaturity (Additional Supplementary Acts, 7-8). Failing to mention the many depositions - which we have noted above - of those relatives who regarded the Petitioner as sufficiently mature for marriage, he writes: "One can consider the impulsive decision of the Petitioner to marry a woman older than himself and of an evidently dominant character as the abortive attempt to obtain relief from his loneliness, the satisfaction of his needs for dependence... One frequently notes in the subject his poor communication with others. This is due to the discrepancy between his own impulses and his perception of the outside world, whether in the field of marriage, family or authority, as contrary to his own requirements..." (ASA 9). And on this basis he gives as his professional opinion, "Such a personality could not have permitted the Petitioner, in the moment of the marriage, to have the discretional capacity for valid consent and the capacity to satisfy the obligations inherent to marriage. My diagnosis is: Passive Aggressive Personality Disorder" (ib.).

            As an expert-diagnosis, this appeared simply to attach a label to a combination of minor characteristics, without any indication of the gravity of the possible condition involved. As such, it provided the Judges with few reliable elements for their decision. Inasmuch as it was based on a one-sided reading of the Acts, and appeared to offer certain incoherencies from a scientific point of view, a thorough "recognitio" was considered necessary in order to ask the Expert to justify certain points and to clarify others.

28.       In the "recognitio", what DSM-III-R says of the diagnostic description, "Passive Aggressive Personality Disorder", was recalled: "The essential feature of this disorder is a pervasive pattern of passive resistance to demands for adequate social and occupational performance"; it "results in pervasive and persistent social and occupational ineffectiveness..." and leads to "intentional inefficiency" in work, etc. on the part of the subject (DSM-III-R, p. 356). Prof. A. was then asked where in the Acts he had found evidence of the Petitioner's persistent and intentional inefficiency in work. He replied that he took "inefficiency" "in the sense that the Petitioner did what he was capable of doing, but was not capable of progressing, of developing himself" (ASA 15). This reply seems inadequate. We find no evidence that the Petitioner intentionally chose to be inefficient, or was occupationally ineffective. In any case, even if the Expert's diagnosis were borne out by the Acts, whatever its possible relevance for c. 1095, 3, it appears juridically irrelevant under no. 2 of the canon.

29.       Another point was put to the Expert in these terms: "You base your conclusion partly on Dr. M., a psychologist who saw the Petitioner in 1986 in connection with injuries suffered at his work, not in relation to his marriage. He gave his report in 1988 (21 years after the marriage), and specified that it was "confined to his condition at that time" [i.e. 1986] (X 165). You sum Dr. M. up: "The doctor describes the tendency in the subject above all to obtain immediate gratification of his own desires and the incapacity to postpone realistically such gratification". This seems to go beyond what Dr. M. actually said (for instance, he says: the Petitioner "was opposed to delaying gratification"; i.e. he does not say he was incapable of doing so)". In response, the Expert declared that he took "opposed", "in the sense that he was incapable". He adds that he attaches "scientific certainty" to his opinion that this characteristic, which Dr. M. noted in 1986, was present "in the same degree of gravity in 1967" (ASA 13-14). Professor A.'s interpretion of Dr. M.'s words does not seem justified to us, nor do we consider that the gravity of the alleged condition is borne out by the Acts. Moreover, even if the condition ['opposition to delaying gratification'] were in fact shown to have been grave, we do not see its relevance to the essential obligations of marriage, under either c. 1095, 2 or c. 1095, 3.

30.       The "recognitio" revealed more serious differences of judgment between the rotal Expert and the Expert of the X diocese. Dr. M. speaks of "mild depressive condition", "social alienation" "Impulse control problems", "exaggerated needs for affection and support... distrust of others... fear of emotional involvement, vulnerability, and potential hurt..." He continues: "These personality traits are likely to be permanent and... they would be most destructive in intimate, interpersonal relationships. To say they would prevent him from having a stable and permanent union could be an exaggeration. Given the right partner, who could accept some of these problems, he could find a stable, permanent marital union not only possible, but very valuable" (166).

            Prof. A. was asked if he agreed with Dr. M. who, deliberately confining his judgment to the present and not the past (165), saw difficulty - rather than impossibility - in the Petitioner's establishing a stable marital union. He replied that he "is not in agreement with Dr. M. who thinks that it is a question just of difficulty, but considers that it is a matter of impossibility"; and he further insists, in contrast to Dr. M.: "the characteristics listed by Dr. M. were present always in the Petitioner" (ASA 14). This presents us with a problem which is not infrequently met by judges: what judicial evaluation to make of expert evidence in the face of discordant professional opinions. It seems undoubted to us that greater scientific value attaches to an opinion based on a personal examination of the party or parties, and prudently referred to the moment of the examination, than to opinions formed simply from a reading of the Acts, without any examination of the persons.

31.       The rotal Expert further disagreed with Dr. M.'s positive opinion about the likelihood of the Petitioner being able to enter on a stable and permanent marital union with the "right partner". "I do not agree. Dr. M. does not attach enough importance to what he himself says. "Impulse control problems", "distrust of others", "fear of emotional involvement", are signs of a Personality Disorder that is extremely grave and implies an absolute incapacity for married life" (ASA 14). Prof. A. here diagnoses a gravity of Personality Disorder which we do not find supported in the Acts. If the plea before us were under c. 1095, 3, and not c. 1095, 2, we would have to thoroughly question the view that the symptoms listed point to an "absolute" incapacity for marriage.

32.       In relation to the ground under c. 1095, 2º, we note one remark of the rotal Expert. Asked which aspects of marriage he thinks the Petitioner could not have properly understood, he replies: "The difficulty in communicating with his partner" (ASA 14). We are inclined to agree with this psychological judgment, since it does appear from the Acts that the Petitioner miscalculated this aspect of the particular marital relationship he was contemplating. But failure to understand that two personalities are so different that they will eventually run into "difficulty in communicating", does not constitute an invalidating lack of discretion of judgment about some essential right or obligation of marriage, under c. 1095, 2º.

33.       Difficulties certainly emerged from their different intellectual levels, and were compounded by problems in their sexual life arising over the Respondent's pregnancy (X 40/37; 46 in fine; 84/14), by financial troubles, by the obstacles that she, a French woman, encountered to obtain employment in the United States, by his being periodically out of a job, etc. These are real but not exceptional difficulties; similar or more serious ones can arise in any marriage.

            If this marriage did not work out, the Acts give the impression that it was due not so much to the difficulties just mentioned, but to insufficient effort on both parts to tide over their differences of character and culture. As the Petitioner says: "Danielle could not stand being in the United States..." (33; 40); and for his part he refused to live and work in France (40/39). The remark of Paul, the Petitioner's brother, could also be noted: "I will say that David and Danielle are extremely stubborn and probably never attempted to work this out... She never gave David a second chance and David would not work whatever it took to get her back" (149).

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 in either spouse"

            .....

            Given in the Tribunal of the Roman Rota, Nov. 25, 1993.

            Cormac BURKE, Ponens

            Thomas G. DORAN

            Kenneth E. BOCCAFOLA