cormacburke.me.ke

I. The Facts

1.         Maria M and William B, after a fifteen months engagement, married early in 1949, he being 25 and she 22. Married life lasted more than thirty years, but ended in 1980 when Maria left him. In 1986 she petitioned the Tribunal of Omaha for a declaration of nullity on the grounds of incapacity on the part of the man. After an instruction, consisting of the evidence of the parties and of seven witnesses, an Affirmative Sentence was given by the Court in April 1987, and confirmed by the second instance Tribunal of Omaha the following month.

            The Respondent appealed however to this Apostolic Tribunal, asking for a new examination of the case, alleging procedural irregularities and violation of his right of defense. A new proposition of the cause having been granted in February 1988, the Petitioner wished to appoint her own rotal Advocate, while free legal representation was granted to the Respondent. The case continued under a new "Ponens", but in June 1990 the Respondent stated he would no longer prosecute it.

            The Defender of the Bond of our Tribunal opposing the renunciation of the case, the Ponens in January 1992 decreed that it be heard out. Efforts to effect a further instruction in this instance proved vain. The Respondent refused to give any further evidence; nor, given the opposition of the Petitioner, was it possible to interrogate any of the parties' children.

            The Advocates' Briefs along with the Observations of the Defender of the Bond having been received, our Turnus met on December 10, 1992 to pass judgment. However, in view of the particular difficulties of the case, the Turnus decreed a "dilata", in order to complete the Acts with an Expert opinion. A "Peritia" having been performed and subjected to a "Recognitio", and new Briefs prepared and examined, today we finally reply to the doubt concorded on May 10, 1989: "whether the nullity of the marriage has been established on the grounds of an incapacity to assume the essential obligations of matrimony, on the part of the Respondent"

II. The Law

2.         In the case before us, the affirmative decision of the Court of first instance, regarding the consensual incapacity of the Respondent under no. 3 of c. 1095, was based above all on his evident alcoholism. It would therefore seem opportune to consider some aspects of the relationship between alcoholism and the capacity for giving valid matrimonial consent.

3.         Alcoholism and consensual incapacity. Since the excessive use of alcohol tends to have the effect of weakening the faculties of the soul or even of destroying them completely, alcoholism is logically often invoked as a basis on which to prove consensual incapacity under c. 1095. The argument has to be considered cautiously however, if one is to arrive at an equitable judgment according to the several species of incapacity designated in the canon.

4.         It is evident that a state of drunkenness takes away the use of reason even in persons who are otherwise normal; therefore it induces an incapacity for giving valid consent under c. 1095, 1º. Long-standing alcoholism can so weaken the psychic faculties that a person, at least in the moment of giving consent, necessarily suffers from a grave lack of discretion of judgment; and in this case the consent is invalid, under c. 1095, 2º. However, as regards no. 3 of the canon, consensual incapacity deriving from alcoholism alone seem a less likely hypothesis.

5.         The main difficulty lies in the fact that there are many kinds and degrees of alcoholism or alcohol-dependence (cf. c. de Lanversin, March 1, 1989: RRD, vol. 81, pp. 183-184). While any kind of dependence undoubtedly indicates a psychic defect (and perhaps also a physiological one), this does not necessarily give rise to an incapacity for the assumption of the normal responsibilities of human life. In this sense, the rotal Expert in the case before us today affirms that "some types of alcohol-dependence do not incapacitate" (Acts III, 11). As an example, he refers to a type of alcoholism which is frequent in France and of which we read: "In this, the person with alcoholism is not aware of lack of control: he or she must drink a given quantity of alcohol every day, but there is no compulsion to exceed that amount" (DSM-III-R, 173). Real dependence exists in such cases - in the precise sense that the subject has a need to absorb a certain daily quantity of alcohol, so as to be able to carry out his or her responsibilities normally. Therefore the incapacity deriving from such dependence does not necessarily affect other aspects of life; of itself it does not extend beyond the impossibility of abstaining from a given quantity of alcohol.

            The point seems to be brought out in what is written in the Sentence referred to above. With reference to gamma-type alcoholism, it notes that this "type involves certain somatic changes, especially in the brain and nerves of the patient, who is so addicted to drinking as to have lost all freedom to moderate or overcome his perverse habit" (RRD, vol. 81, p. 187). This loss of freedom to control or overcome a bad habit (which is what properly constitutes addiction) can of course occur in relation to other vices: gambling, smoking, etc. Such ingrained defects show undoubted weakness of character; in the case of alcohol, and even more so of drug-taking, they can certainly lead to the gradual deterioration of psychic faculties. But it would be untenable to conclude that they automatically take away a person's freedom or capacity to control or administer aspects of the person's life outside that of the defect itself.

6.         In other words, while an inability to refrain from certain vices is clearly an incapacity, there is need to specify the object, scope and effect of this incapacity, for it may embrace many areas of life, or few; it may relate to substantial or quite accidental aspects of these areas, etc. This is of particular importance in pleas of nullity of marriage brought under c. 1095, 3º, when a person's alcoholism or drug-addiction, etc. is alleged as proof or partial proof of consensual incapacity.

            Not only must proof be furnished of the existence at the time of the marriage of the dependent condition in question, but its gravity has also to be established. Further, it has to be strictly shown that the fulfilment of marital duties was rendered not just more difficult by the dependence, but actually impossible for the person laboring under it. Above all what must be pondered and recognized is that the duty or duties whose fulfilment was made impossible by the addiction or dependence were essential marital duties.

7.         The moral and juridic obligations of married life are indeed many, and it is obvious that alcoholism makes their fulfilment more difficult. Yet prudence is called for before laying down juridic principles which would make it impossible for anyone who is a heavy drinker to contract a valid marriage. The person who is declared to have been incapable of fulfilling the essential obligations of marriage, is thereby judged incapable of exercising one of the most basic human rights: the right to marry. Moreover, following the principle solidly supported by jurisprudence that any true incapacity under c. 1095, 3º must be permanent in nature (cfr. c. Anné, Feb. 25, 1969. n. 19; c. Pinto, Mar. 18, 1971 (vol. 63, pp. 187-188), Feb. 6, 1987 (vol. 79, p. 34); c. Lefebvre, Jan. 31, 1976 (vol. 68, p. 41); c. Parisella, Feb. 23, 1978 (vol. 70, p. 75); c. Ferraro, Nov. 28, 1978, n. 10; c. Agustoni, Feb. 20, 1979, n. 13; c. Bruno, March 30, 1979 (vol. 71, p. 121); c. Stankiewicz, Dec. 11, 1979 (ib. p. 552); Nov. 14, 1985 (vol. 77, p. 490); c. Serrano, July 28, 1981 (vol. 73, p. 423), May 26, 1988 (vol. 80, p. 362); c. Egan, Nov. 10, 1983 (vol. 75, p. 608); c. De Lanversin, Feb. 8, 1984 (vol. 76, p. 91); c. Jarawan, June 19, 1984 (ib. p. 372); c. Doran, July 1, 1988 (vol. 80, pp. 453-454); c. Giannecchini, Dec. 20, 1988, n. 3; c. Palestro, Jan. 17, 1990, n. 7; c. Ragni, May 2, 1989 (vol. 81, pp. 312-313), etc.), then such a person is definitively deprived of this human right.

8.         Any thesis which would make alcoholism, in itself, a cause of absolute consensual incapacity runs into certain fundamental objections, grounded on the protection of the ecclesial rights not only of the drink-dependent person, but also of others. People can and do fall in love with individuals whom they feel to possess many good qualities, but whom they also know to drink too much. Even though they realize that a husband or wife given to drink is a more difficult partner to live with, they can want to marry such a person, and choose to marry him or her, and would certainly seem to have the right to do so. Yet such a right is clearly jeopardized by any theory which holds an alcoholic condition to be automatically incapacitating under c. 1095, 3º.

9.         It helps to note that psychiatrists seldom regard alcoholism as an absolutely irremediable problem. Of even more interest to jurisprudential reflection, is that they see increased possibilities for successful treatment of a married person who has this problem, when help is forthcoming precisely from his or her spouse. "Treatment studies indicate that alcoholics experience better recovery and improved marital adjustment if their spouses participate in their treatment than if their spouses do not" (J.D. McLeod: "Spouse Concordance for Alcohol Dependence and Heavy Drinking", Alcoholism: Clinical and Experimental Research, vol. 17 (1993), p. 1153).

            In short: principles which could lead to the privation of basic rights are to be prudently proposed and narrowly interpreted. It is a point to be borne especially in mind when alcoholism is invoked as the cause of consensual incapacity, under c. 1095, 3º.

10.       On the other hand, the fact that alcoholic dependence "does not of itself create a presumption of an abnormal personality" (c. Pompedda, Oct. 31, 1986: RRD, vol. 78, p. 577), should not blind us to the possibility that alcoholism can be part expression of a broader psychic anomaly of such dimensions and gravity as to provoke consensual incapacity. Nevertheless such an hypothesis cannot be sustained unless it is backed by an expert opinion, which itself obtains full support from the overall Acts.

11.       "The nullity of the bond cannot be derived from just any cause, even if it is grave; for there must be proof of a true and rooted permanent disorder of the personality" (c. Agustoni, July 15, 1986, in una Corcagien. n. 4). When the services of an Expert are called for in judicial cases (cf. cc. 1574ss; c. 1680), it must be remembered that "to pass judgment about the validity of marriage is not of the Expert's competence, but of that of the Judge, for it is a juridic not a psychiatric question" (c. Pinto, Apr. 28, 1977, in una Ianuen.). In coming to his decision, preciseness of diagnostic terminology is of secondary concern to the Judge. His judgment must be based rather on the concordance between the evidence in the Acts on the one hand, and the expert opinion on the other, in demonstrating the existence of a grave and disabling state of psychic pathology in the contracting party at the time of the wedding. The exact diagnostic "tab" to be attached to the disorder is of little importance, all the more so given that psychiatrists themselves have by no means yet reached a consensus as to diagnostic nomenclature (cf. decis. coram the undersigned Ponens, Nov. 25, 1993, nn. 12ss). "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... the contracting party" (Pope John Paul II, to the Roman Rota: AAS vol. 79 (1987) 1457)

III. The Argument

12.       This long-drawn-out and peculiar case is not of easy solution. That the Respondent was an alcoholic, also in pre-nuptial times, is undoubted. The witnesses bear abundant evident to this (cf. Acts 58; 61; 66/2; 80/1; 89/18; 152/1, etc.), and it is confirmed by the clinical diagnoses from the hospital records: "alcoholism, crucial phase" (158); "chronic alcoholism" (163). However, as we saw in our jurisprudential considerations, alcoholism does not "per se" create an incapacity for assuming the essential obligations of marriage.

13.       Nevertheless we are in agreement with the rotal Expert in the case, Prof. Claudio Di Liberto, that there are very many other elements in the Acts which, when taken together, provide sufficient proof of the alleged incapacity, deriving from a gravely disturbed personality in the Respondent.

            He appears as possessing a personality that must be considered seriously abnormal under many aspects. His violence is very frequently testifed to (Acts 31/18; 59/8; 67/6; 77/19; 80/4; 88/13; 91/26; 123; 149/19). Patricia M, the sister-in-law of the Petitioner, goes as far as to affirm that "in order to save Mary Gen's life, she had to be removed from him" (73/9). The same is to be said of his tendency towards the domination of others (13; 45; 66/3; 89/18) and towards their effective exploitation (33-34; 64; 77/22; 90/22). He appears as constitutionally given to lieing (33/24; 78/24): "a totally compulsive liar" (91/24). He was irresponsible in family and financial affairs (62/17; 87/13; 89/17; 114/14; 134/17). His alcoholism was accompanied by a compulsive tendency to gambling (12; 33/25; 62/17; 73/9; 89/17; 91/25). Everything seems to support the opinion of one witness: "I don't think Bill was capable of normal behavior" (74; cf. 32/22; 90/22). The Acts give abundant evidence of the negative effects of his disordered personality on the parties' children, to the extent that they had to undergo psychiatric treatment (14; 35/4; 39-40; 63/19; 90/19: 92/29). The Petitioner's sister in law asserts: "Their children were nervous wrecks even when very small" (79/27; cf. 81/6; 92/30).

14.       The rotal Expert's observations seem well grounded therefore: "the aspects in the Respondent's personality of domination and violence (not just verbal) towards others, the habitual tendency to lie, coupled with his gambling habits and dependence, and his constant financial and working difficulties, reveal a repetitive tendency to "acting out" - in the sense of giving external expression to internal psychological situations - of which his alcoholism, with the difficulty in mastering its impulses, is simply one of the elements" (III, 8).

15.       From all of these Prof. Di Liberto concludes to a notable "personality disorder": "a grave immaturity of personality accompanied by psychopathic elements... in the area of interpersonal relationships, money, work, etc." (III, 12). Without insisting on being provided with a more precise diagnosis according to the usual DSM terminology, especially since the Expert himself holds that "that value of rigid classifications such as those of DSM-III-R is limited" (ib. 12), we consider that the expert opinion, backed by the other evidence in the Acts, is sufficient to engender moral certainty as to a grave and constitutional personality disturbance, deeply rooted in the Respondent and undoubtedly present at the time of the wedding ceremony, which made him incapable of assuming the essential obligations of marriage.

16.       There is no denying that the long duration of this union is not easy to explain. Rev. DN considers that the Petitioner remained with the Respondent "out of a sense of fear" (70); this however would not seem to be enough. A more probable explanation is perhaps to be found in the very peculiar character of the woman herself. She is described as an ingenuous person (76/17: 96/36), and extraordinarily submissive. Patricia, her sister-in-law, affirms: "She was the most compliant person I ever knew" (72; cf. 95/32); "she didn't seem to have a mind of her own. She did as she was told" (75/14; cf. 77/21). Her brother says that before her marriage she was "totally dominated by Mom and Dad" (86/10; 90/21). We could also note the judgment given by one of the brothers: "Mary Gen was from a home that was dominated by drinking and gambling... [she] knew nothing of what a normal home was. She was a set up to marry someone like Bill and stay with him for 30 years!" (86/10; cf. 80/1; 90/21).

17.       Whatever one chooses to think about this question, the real explanation (which perhaps must remain in obscurity) is not necessary to enable us to arrive at a decision. We accept and make ours the words of the first instance Tribunal: "Obviously, the Court is reluctant to declare a 30 year old marriage invalid: however, this is an exception. It is clear that there was no marriage from the very beginning" (208).

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

            "IN THE AFFIRMATIVE", that is,

            "the nullity of the marriage has been proved, in the case before the Court, on the single grounds of psychic incapacity to assume the essential obligations of matrimony on the part of the Respondent".

            Given in the Tribunal of the Roman Rota, December 2, 1993.

            Cormac BURKE, Ponens

            Thomas G. DORAN

            Kenneth E. BOCCAFOLA