cormacburke.me.ke

[English version: Forum 6 (1995):2, pp. 141-164]

I. The Facts

1.         Alan and Dorothy, the parties to this case, first met in Feb. 1978. They were quickly attracted to one another and soon became engaged. They married on Nov. 3 of the same year, when the man was 23 years old and the woman almost 21. Their married life together, marked by the birth of one child, lasted two and a half years. Growing dissensions led to their breakup. In May 1981 they finally separated.

            In Nov. 1983 Dorothy presented a plea to the Dublin Regional Tribunal, asking for the nullity of the marriage to be declared, on the grounds of lack of discretion of judgment in both parties. The instruction consisted of the evidence of the parties and five witnesses, along with a psychological opinion about the couple. On Jan. 5, 1988 a Negative sentence was given which, however, with no further instruction, was reversed by the National Appeal Tribunal of Ireland on Nov. 29, 1988, on the grounds of lack of discretion of judgment on the part of the woman alone.

            After the appeal of the Defender of the Bond, the case was sent on to this Apostolic Tribunal. Further instruction with an expert report having been made, we now give this decision in third instance.

II. The Law

2.         Both first and second instance Sentences in the present case make an identical comment on c. 1095, § 2: "Discretionary judgment... implies that a person is able to make a mature judgement about the responsibilities and obligations of marriage which will involve him/her in a total dedication of his life to the other person" (I, 67; II, 4).

            The language used here is characterized by no little imprecision. However, since it reflects some interpretations of the phrase "mutually give and accept each other in order to establish a marriage", that c. 1057, § 2 uses in order to describe the object of matrimonial consent, we might devote some space to the question of the adequate juridic interpretation of this phrase.

3.         One of the most notable differences between the 1917 and the 1983 Codes is precisely the way the object of consent is described. Matrimonial consent, according to the 1917 Code, is an "act of the will by which each party gives and accepts a perpetual and exclusive right over the body, for acts which are of themselves suitable for the generation of children" (c. 1081, § 2). Now, on the contrary, according to the new Code, it is an "act of the will by which a man and a woman, through an irrevocable covenant, mutually give and accept each other in order to establish marriage" (c. 1057, § 2).

            Therefore in the 1917 Code, consent involved a "traditio iuris"; its object was the granting of an essential right - the "ius in corpus"... In the 1983 Code, consent involves rather a "traditio suiipsius". The object is now the gift of one's self. Let us make some preliminary comments on these two different formulations.

4.         Treated as the object of matrimonial consent, the "ius in corpus" possessed a very well defined juridic content; moreover the rights and duties it led to were quite clear. This of course was the natural result of decades of attentive consideration in jurisprudence and doctrine.

            The juridic concept of the "ius in corpus" was precise; to many persons it also appeared as very poor, suggesting an exclusively corporal and biological view of conjugal sexuality. Marital consent seemed to be limited to the right to the physical act of intercourse. As presented by the 1983 Code, the object of consent - the "traditio suiipsius" or self-giving - is conceptually much richer. The older formula reduced and "objectivised" the other spouse; it seemed to be his or her body alone which was involved in consent. The new formula makes it evident that it is in their own very persons that the spouses pledge themselves to one another. In line with the pnm of Vatican II, it appears to offer a view of marriage closer to its human reality, and particularly to the desire for self-gift which is characteristic of the conjugal instinct.

            Nevertheless, the exact juridical significance and content of this formulation are by no means immediately clear. Indeed one may say that little more than ten years after its incorporation into the Code, we are still in the initial stage of its analysis; so much so - and this is a matter for no surprise - that the new formula has provoked diverse reactions, evaluations and criticisms.

5.         On the rotal level, some judges at times give the impression that they see no substantial difference in the new formula, and continue to define the object of consent in terms of c. 1081, § 2 of the 1917 Code. We read for instance: "Matrimonial consent is an act of the will by which the contracting parties mutually give and accept a perpetual and exclusive right over the body, for acts which are of themselves suitable for the generation of children" (c. Fiore, Dec. 4, 1984, R.R.Dec., p. 593; cfr. c. Huot, June 26, 1984, ib. vol. 76, p. 433; July 26, 1984, ibid. p. 500; Decree c. Masala, March 5, 1985, n. 5; c. Funghini, April 17, 1991, vol. 83, p. 249). A Sentence coram Huot of May 2, 1985 insists that the formula of c. 1081, § 2 of the old Code "is substantially renewed in the new" (vol. 77, p. 225). Another decision, coram Agustoni, of Oct. 15, 1985, citing the old formula, comments: "The new Code contracted the way of expressing things, but did not change the object of consent, nor could it change since it is a question of a covenant based on natural law" (vol. 77, p. 437; cf. c. Di Felice, Nov. 8, 1986, vol. 78, p. 599). The same basic line, although with some enrichment, seems to be followed by the principle enunciated in a more recent sentence: "The formal and substantial object of matrimonial consent is above all and necessarily the perpetual and exclusive right over the body with regard to acts apt in themselves for the generation of offspring, the right to the consortium and communion of the whole of life, by which the conjugal state is created and the good of the spouses obtained, with due observance of fidelity and the perpetuity of the bond"" (c. Funghini, Nov. 8, 1989: vol. 81, p. 659).

6.         Others go to different extremes. One sentence seems to reject totally the concept of "giving oneself" as being juridically meaningless: "In fact, as is evident to all, no one disposes of himself to the extent that he can juridically give himself to another, and much less can someone juridically accept another as his own" (c. Egan, March 29, 1984, vol. 76, p. 205). Another assigns no apparent limit to the extent of the matrimonial self-gift: "Matrimony is indeed the mutual, full and perfect [self-]donation of the contracting parties" (c. Bruno, Dec. 17, 1982, vol. 74, p. 648).

7.         Still another approach appears as a middle position, avoiding the extremes just mentioned. It takes canon 1057, § 2 as indeed proposing a new object of consent, but places this simply in the "establishment of matrimony". "Matrimonial consent is a specific positive act of the will, and one that is definite and directed to a concrete object, i.e.: "a man and a woman establish between themselves a partnership of the whole of life, by its nature ordered to the good of the spouses and to the procreation and education of offspring" (can. 1055, § 1); that is, matrimony" (c. de Lanversin, Feb. 28, 1984, RRD, vol. 76, p. 146). "The object of consent, which is the setting up of matrimony (cf. can. 1057, § 2)" (c. Pompedda, Dec. 4, 1984, ibid. p. 573).

            While this approach is certainly not lacking in authority, one can question whether it is satisfactory to pass over precisely what is so new in the canon - the phrase "mutually give and accept each other" - and to situate the object of matrimonial consent in the finality of this self-giving. Ultimately (as in the decision coram de Lanversin), this appears to deduce the object of consent from c. 1055, § 1, rather than from a more thorough examination of c. 1057. § 2. No one would contest the affirmation that the object of matrimonial consent is "the establishment of marriage". This however does not appear to advance the juridic analysis to any significant degree. St. Thomas too first says that 'matrimonial consent means consent to matrimony'(Suppl., q. 48, art. 1), but then goes on to a more precise analysis. In examining the question posed by c. 1057, it seems proper that we also should progress from the general and obvious, to the more complex but essential content that lies beneath.

8.         Especially before the promulgation of the new Code, a certain jurisprudential tendency saw the object of consent rather in the other phrase used by GS to describe marriage: "a mutual giving of two persons" (n. 48). "So that this consent should have its object, the partnership of life between man and woman must be understood and willed. The partnership involves the mutual donation of the man and the woman. This donation is effected through consent" (c. Fagiolo, Oct. 30, 1970: RRD, vol. 62, p. 984). "In Gaudium et spes matrimony means the handing over of persons rather than the bestowing of rights" (c. Raad, April 14, 1975: vol. 67, p. 240). "The giving and accepting which the spouses make of themselves, "as the mutual donation of two persons", in order to bring about conjugal consent" (c. Di Felice, Jan. 14, 1978: vol. 70, p. 17). "Nor should one forget that according to Gaudium et spes of the Second Vatican Council, rather than the handing over and acceptance of rights, matrimony constitutes the mutual donation of the persons of the contracting parties" (c. Pompedda, July 3, 1979: vol. 71, p. 388). And even after the entry into force of the new code: matrimonial consent, "which is an act of the will of mutual donation of the persons" (c. Stankiewicz, May 19, 1988, n. 10).

9.         It should be clear however that the "mutual donation of persons", the "handing over or giving of oneself" are expressions that cannot be understood in a totally literal sense. A true gift implies the transfer, from the giver to the receiver, of ownership of what is given. But it is obvious that each spouse does not transfer ownership of his or her person to the other. Such a transfer would in fact be impossible because no one is absolute "owner" of his or her person or "self". Similarly, the spouse receiving the conjugal gift does not become owner of the "self" of the other, entitled to dispose of it as he or she wishes. No spouse owns the other: not the "self" of the other, not even the body of the other.

            Working within the terms of the law in force up to 1983, jurisprudence was careful not to speak of a "traditio corporis" - a handing over of the body - , but of a "traditio iuris" - a handing over of a right, specifically of a "ius in corpus", a right over the body. The moralist, D'Annibale, expressed the reason clearly: "through marriage one does not come to possess the body of one's spouse, in the sense of owning it; one acquires a right of use in its regard" (Summ. Theol. Mor., Roma, 1908, vol. III, p. 368). If by marriage one spouse does not become owner of the body of the other, less still does he or she acquire ownership of the other's person. This could suggest that the idea of the "traditio personarum" needs to be juridically refined into that of the handing over of a "ius in personam": a right over some personal element so proper to the individual that it can in some way be considered "representative" of him or her.

10.       If we consider matrimonial consent more closely, it would seem that its object is the giving/accepting not of the persons of the parties but of their sexuality: of that sexuality which is proper and personal to each one, and which complements the sexuality of the other.

            "A man and a woman become husband and wife when, by means of a particular type of covenant-commitment, they really donate to one another all of their masculinity and all of their femininity, in such a way that they come to form a unity - becoming one thing - in the conjugable aspects of their persons" (Viladrich, P. J.: "L'Habitat Primario della Persona in una Società Umanizzata", Anthropotes, 1988, IV, n. 1, p. 178). And elsewhere we read: "What matrimonial consent essentially involves is the human nature of a man and a woman taken not absolutely but in the relativeness of their sexuality" (Bonnet, P.A.: L'Essenza del Matrimonio Canonico, Cedam, 1976, p. 180).

            The right that each party acquires is not and cannot be a right every aspect of the person and life of the other. It is a right over the other's conjugality: i.e. over his or her conjugal and complementary sexuality. In this sense also we can understand St. Thomas when he teaches that the object of the wife's matrimonial consent is not so much her husband, as conjugal union with ["coniunctio ad"] her husband; and similarly the husband's consent is to conjugal union with his wife (Suppl., q. 45, art. 1).

11.       Here it would be a considerable anthropological error to restrict the understanding of conjugal sexuality or of conjugal sexual union to bodily or genital aspects alone. St. Thomas himself asserts that "the union ["coniunctio"] of man and woman through marriage is outstanding. since it is the union of souls and of bodies. Hence it is called 'coniugium'" (Suppl., q. 44, art. 2 ad 3). Familiaris Consortio insists on this more comprehensive notion of human sexuality: "Sexuality, by means of which man and woman give themselves to one another ... is by no means something purely biological, but concerns the innermost being of the human person as such" (n. 11). "Faced with a culture that largely reduces human sexuality to the level of something commonplace, since it interprets and lives it in a reductive and impoverished way by linking it solely with the body and with selfish pleasure... [education] in the area of sex [must be] truly and fully personal: for sexuality is an enrichment of the whole person - body, emotions and soul - and it manifests its inmost meaning in leading the person to the gift of self in love" (ib. n. 37).

            So also the Catechism of the Catholic Church (no. 2332) teaches that "Sexuality affects all aspects of the human person in the unity of his body and soul. It especially concerns affectivity, the capacity to love and to procreate, and in a more general way the aptitude for forming bonds of communion with others".

12.       Vatican II's "sese tradere" therefore, as applied to marital consent, means committing oneself to another in a unique interpersonal relationship whose first and most characteristic expression is the reciprocal and total gift of complementary marital sexuality. "The emphasis in the Council's teaching on the personal totality of what is reciprocally given cannot be understood otherwise than with regard to sexuality. Sexuality, as we have said, while it involves one's being totally and in depth, characterizing the very way of being human with masculinity or femininity, fully involves at the same time only those values that, inasmuch as they are capable of reciprocal complement, find their place in that aspect of oneness in which man and woman participate, for that very reason being the only ones that can constitute the object of a true and proper donation between them" (Bonnet, op. cit., p. 157).

13.       On the one hand therefore, marital sexuality covers many other aspects beside those expressed in the act of physical intercourse; hence the gift of sexuality cannot be reduced to a mere mutual "right over the body". On the other hand, nevertheless, marital intercourse - truly called the conjugal act - remains the most distinctive manifestation of conjugal love and union (always provided it expresses mutual respect and donation; cf. the "humano modo" of c. 1061). Thus the exchanging of the permanent and exclusive right to the conjugal act is necessarily an essential element of matrimonial consent.

14.       Criteria for consensual incapacity: gravity of the anomaly; essentiality of the rights/obligations involved. In the case before us, the rotal peritus stated: "one must emphasize the extreme difficulty which the psychiatric expert experiences in determining general criteria, valid for all cases, to validate the sufficiency or otherwise of the consent given" (Additional Acts, 5). These words make us recall that it is not the expert's mission to pass judgment on the "sufficiency" or validity of the consent; that is exclusively the judge's job. More importantly, the expert's observation brings out the contrast between the fluid or uncertain state of psychiatry (which is still to a large extent a science in search of commonly accepted principles and guidelines), and canon law with its solidly established general principles and universally binding norms (with due allowance for dispensations or privileges, according to law).

            The norms that rule the matter of capacity for marital consent are contained in canon 1095. Of universal validity, they have indeed to be applied by ecclesiastical courts to particular cases, after due process and in the light of the Acts (which include expert opinions given: cf. cc. 1608; 1678-1680); a judicial task that is seldom easy. What precisely underpins the ecclesial value and legal justification of judicial decisions about consensual capacity, is the fact that they constitute particular applications of the general and objective norms offered by the canon, in accordance with the expressed mind of the legislator and established jurisprudence. If this were not so, decisions regarding capacity would run a grave risk of being arbitrary, inconsistent, not in keeping with the sense of the Church, and contrary to justice.

15.       When the plea is one of consensual incapacity under c. 1095, 2° and 3° , the judicial decision centers on two issues. The first is whether the party was affected by some grave psychic anomaly at the time of consent; a slight or moderate defect of the "psyche" (mind, will, affectivity) cannot generate such an extraordinary handicap as incapacity for marriage (cf. c. Ewers, Oct. 29, 1960: R.R.Dec., vol. 52, p. 467; c. Anné, March 22, 1975, vol. 67, p. 184; c. Pinto, Oct. 28, 1976, vol. 68, p. 387; c. Davino, in una Burdigalen., May 18, 1977, n. 4; c. Lefebvre, Jan. 21, 1978, vol. 70, p. 48; c. Di Felice, March 14, 1979, vol. 71, p. 97; c. Pompedda, Feb. 19, 1982, vol. 74, p. 91; c. Jarawan, June 19, 1984, vol. 76, p. 371: c. Giannecchini, June 26, 1984, ib., p. 393; c. Serrano, Oct. 29, 1987, vol. 79, p. 582; c. Boccafola, in una Jolietten. Dec. 13. 1989, n. 13; c. Doran, May 17. 1991, vol. 83, pp. 306-307; c. Bruno, July 19, 1991, vol. 83, p. 466, etc.).

16.       The second issue is whether his or her ability to assess or assume some essential matrimonial right or duty was vitiated by the anomaly in question (cf. c. Agustoni, May 3, 1974: R.R.Dec., vol. 66, p. 324; c. Pinto, July 8, 1974, vol. 66, p. 501; c. Davino, Apr. 28, 1977, vol. 69, p. 234; c. Pompedda, July 3, 1979, vol. 71, p. 388; c. Pompedda, Feb. 19, 1982, vol. 74, p. 89; c. Bruno, June 17, 1983, vol. 75, p. 361; c. Colagiovanni, May 21, 1985, vol. 77, p. 255; c. Boccafola, June 23, 1988, vol. 80, p. 430; c. Palestro, June 5, 1990, vol. 82, p. 478; c. Civili, July 10, 1990, vol. 82, p. 596; c. Funghini, July 18, 1990, vol. 82, p. 640; c. Colagiovanni, March 5, 1991, vol. 83, p. 142; c. Stankiewicz, May 28, 1991, vol. 83, pp. 347-348; c. Giannecchini, Nov. 8, 1991, vol. 83, p. 717; c. Pompedda, Nov. 14, 1991, vol. 83, p. 731; c. Stankiewicz, in una Dublinen. Feb. 25, 1993, n. 25, etc.). The latter question is no less important than the former. A psychic condition which "incapacitates" for aspects of married life that cannot be considered essential or constitutional, is irrelevant for the effects of c. 1095, 2º and 3º, as is quite clear from the wording of the canon.

17.       The judge who forgets that a main parameter for evaluating consensual incapacity must always be the essentiality of the marital obligations involved, can be led into entertaining an unacceptable thesis of "relative" incapacity: i.e. incapacity relative not to what is essential to marriage as such, but to the particular partner chosen. Since incapacity relates to marriage, it goes without saying that it involves relativity; but the relativity in question regards marriage as an institution, and in its essential aspects, not the concrete spouse chosen. The canon "speaks of a relativity only in relation to the essential obligations of matrimony. It does not speak of any other kind of relativity" (M.F. Pompedda: "Incapacity to assume the essential obligations of marriage", in Incapacity for Marriage, 1987, p. 205). Mainstream jurisprudence has repeatedly rejected the thesis of "relative incapacity" (c. Raad, Apr. 14, 1975: R.R.Dec., vol. 67, p. 260; c. Di Felice, Nov. 12, 1977, vol. 69, p. 453; c. Lefebvre, Feb. 4, 1978; c. Agustoni, Feb 20, 1979; c. Parisella, March 15, 1979; c. Bruno, Feb. 22, 1980, vol. 72, p. 127; c. Fiore, May 27, 1981, vol. 73, pp. 314-317; c. Pompedda, Feb. 19, 1982, vol. 74, p. 90; c. Egan, July 19, 1984, vol. 76, p. 471; c. Stankiewicz, Oct. 24, 1985,, vol. 77, pp. 448ss; c. Ragni, May 24, 1988, n. 5; c. Colagiovanni, March 5, 1991, vol. 83, p. 138; c. Civili, March 2, 1993, etc.).

18.       The present case also calls for some observations regarding the suggestion that psychic or psychological "dependence" may indicate incapacity for marital consent. Following theories which see "autonomy" or "self-sufficiency" as requisite for human maturity, some psychologists might maintain that independence with regard to one's spouse is an essential part of discretion of judgment, or even an essential obligation of the marital relationship. This seem totally unacceptable within the framework of xtn anthropology, where the whole concept of "mutual help" in marriage rather suggests that a capacity for reciprocal dependence, or inter-dependence, is called for in those marrying. Some psychologists might indeed regard a tendency to unilateral dependence in a negative light, but would any jurist maintain that it can in justice he considered an incapacitating factor for forming a conjugal union?

            That is why it seems impossible to base any declaration of consensual incapacity on the diagnosis of the presence of a "Dependent Personality Disorder". On the one hand, we note that DSM-III-R says this disorder can be "common" (p. 354), while according to DSM-IV it "is among the most frequently reported Personality Disorders" (p. 667), and "many individuals display dependent personality traits" (p. 668); so it can also be present in a mild form. On the other, we can add that its presence even in a measure which might be psychologically classified as grave, seems of little or no relevance to a plea of consensual incapacity. From the canonical-juridical viewpoint, one can see no way of showing how such a disorder incapacitates for any essential marital obligation.

            Under the heading of this disorder DSM-IV says that the "essential feature of Dependent Personality Disorder is a pervasive and excessive need to be taken care of that leads to submissive and clinging behavior and fears of separation... Individuals with Dependent Personality Disorder have great difficulty making [according to DSM-III-R, "are unable to make"] everyday decisions without an excessive amount of advice and reassurance from others... Adults with this disorder typically depend on a person or spouse to decide where they should live, what kind of job they should have, and which neighbors to befriend" (665-666). A husband or wife whose partner is afflicted with this disorder might well like him or her to show more independent initiative; yet others could indeed be happy to have a submissive spouse. In the former case, one can admit that the defect makes married life somewhat more difficult. But on what anthropological or juridic grounds can one say that it generates incapacity for consent?

19.       Regarding conditions that come under the heading of "Compulsive Disorder", we note the following: "Prevalence. Although the disorder was previously thought to be relatively rare..., recent community studies indicate that mild forms of the disorder may be relatively common" DSM-III-R, p. 246. Obsessive Compulsive Personality Disorder is also said to be common (355). Psychiatrists are quite used to dealing with such conditions, also in married persons, without tending to suggest that they make conjugal life "impossible". The following statement is typical: "Although a substantial number of obsessive-compulsives were found to have marital problems, behavioural treatment... resulted in improvement irrespective of marital quality and partner involvement in the therapy. The effects of treatment led neither to a deterioration of the marriage nor to adjustment problems in the partner" (Emmelkamp, de Haan, Hoogduin: "Marital Adjustment and Obsessive-Compulsive Disorder": British Journal of Psychiatry (1990), vol. 156, p. 55).

20.       Finally, our case calls for some remarks about psychological tests; concretely about their probative value in establishing consensual incapacity. The literature published on psychological tests is enormous, as one can verify by consulting, under this heading, any copy of the Cumulated Index Medicus published yearly by the U.S. Department of Health. And it reveals an immense difference of opinion among psychiatrists and psychologists as to the scientific reliability of these tests. Judges should therefore exercise prudence in evaluating conclusions which Experts draw from such tests, since the diagnoses given may be largely conditioned by the personal preference - regarding individual tests or a particular combination of them - held by the Expert or clinician.

            Elements of a more objective order, however, also condition the value of psychological tests when used in instructing marriage annulment cases. The first is the time factor. Any test is of value to the judge only insofar as it provides a sure scientific basis for evaluating the psychic condition of a party at the actual time of the consent given. Tests however are normally carried out quite some time, often very many years, after the actual consent itself. No psychologist will deny that the retroactive application of such tests offers very relative scientific certainty. There are further important considerations. A person undergoing the test may be depressed at that particular moment; indeed the very fact that the test recalls so many circumstances of a collapsed marriage may tend to cause depression. Or the experience of marital failure may have embittered the person, induced a diffident attitude, or caused a permanent depressive state.

            The results of tests regarding intellectual ability may no doubt be legitimately projected backwards. It is very questionable if the same is true of tests regarding moods or affective dispositions.

III. The Argument

21.       The Acts reveal a fairly simple approach to marriage on the part of the Petitioner: "I wanted a friend, someone to rely one, to have a family. Someone to stand by me" (I, 12/13). However, when asked specifically about the three "bona", she says she accepted the essential matrimonial obligations involved in them (ib.). The Respondent too confirms that both intended marriage to be permanent and exclusive, and to have children: "We talked about a family and we both wanted one" (21). We note that the witnesses felt no fears that the marriage would not work out (34/7-10; 36/3; 37/10; 45/2; 53/3; 54/7b).

22.       Regarding her maturity. There is no evidence that she was less than average in intelligence or working capacity. She herself says: "I took Secondary School serious. I left school around Inter. Cert. and went into the [Civil] Service" (10). The Respondent, speaking about her school record: "I think it was pretty good... When she left school, she went into the Civil Service and worked there until she got married - so that was good as well" (19/6); "She was intelligent" (31).

            Several witnesses do speak of her having led a "sheltered life", and doubt her full maturity; but nothing of what they say points to anything abnormal. Peter K, his father says: "she was a very quiet, a very nice girl" (45); "She wasn't a terribly mature person. She wasn't very well able to cope with things outside her own house" (47/5). Nevertheless, regarding married life, he adds: "They both loved the child. She was a good mother and he was a good father" (50). Noel, her only brother: "she did have a sheltered life in many ways... She would have been responsible, however. She had a good little job going... She was always very good at her job. She always had money. She never spent much" (40/5). "When I say sheltered, I don't mean hidden away or anything. I just mean that she never had to rough it. She was just an ordinary, quiet young one" (41/5). The same witness says: "I would have thought at the time that they were mature and responsible" (41/5).

23.       Regarding her responsibility. Lawrence S, her father, considers that her intentions were serious and mature. In fact he rather blames the Respondent for the failure of the marriage: "she wanted to be a wife and mother, and he did not want to stabilise into a married way of life. Secondly, he was not capable of any responsibility" (36/4).

            He adds that she was financially responsible (37/8). While her own testimony is somewhat confused, she relates facts which would show no lack of maturity in this field: "We had no money. He had nothing... I had" (12/11b); "We hadn't got the money. We wanted to get a house... we moved into the house two weeks after we were married. I stayed on working"; "financially we were grand"; "we put our money into the Permanent [Insurance]" (12/12). Marie F., a friend of hers, says that she "made the effort to create a good marriage", adding: "Maybe she expected too much from Alan" (55/15).

24.       Over-dependence on her mother? This was a main basis for the Appeal Tribunal's affirmative decision: "The Judges of the appeal Court felt that there was abundant lay evidence to show that Dorothy at the time of her marriage was the product of an over-protective home background" (II, 7). This hypothesis is accepted and carried farther by the rotal Expert who found in the Petitioner "una modalità di comportamento passivo-dipendente nei confronti della dominante figura materna con incapacità di esprimere delle linee decisionali veramente autonome" (Add. Summ. 7).

            This alleged "incapacity for autonomous decisions", with its suggestion of abnormal dependence, does not seem to us borne out by the Acts. In contrast to the Judges of second instance, we find scanty evidence that the Petitioner was "the product" of over-protectiveness. The more one centers on the moment of the wedding, the less one notices signs of a dependent character.

            The Petitioner herself, who had said "I never depended on the girls at school" (10/3), does claim that her mother "was very protective" (ib.). Later she tones this down: "She always wanted to know where I'd been and what I was doing... But when I met Alan I had a lot of freedom - to an extent" (28/3).

            While the Petitioner's father says, "we over protected her" (36/5), he immediately adds: "she was well educated and had a nice job. We looked on it she was set for life. We allowed her to bring in her boyfriends. She was a lovely, friendly girl and could mix easily" (ib.).

            Her friend, Marie F, having said that the Petitioner "was a very outgoing friendly person... She got on with people very easily" (53/5), adds: "I think she was very protected by her parents especially her mother" (ib.). Paul K, brother-in-law of the Respondent, also says: "She was too domineered by her mother" (33/4). This is a tenuous basis on which to justify a diagnosis of incapacity for autonomous decisions.

            Still more to the point, the Expert's opinion seems to be contradicted by the details of the wedding as the Petitioner herself describes them. Despite opposition from the Respondent and his mother, she insisted on a quiet and inexpensive wedding away from Dublin: "going to Kerry meant it would be small and strictly family. Just what I wanted... Expense was another thing: we were saving for a house and if we'd had a big wedding we would not have been able to have the house as soon as we did. It was completely my choice. Originally he didn't want to go along. I think it was because his mother wanted a big wedding... He changed his mind but I can't remember how! - I must have persuaded him" (28-29/5; cf. 11/9). Although the Respondent in his second deposition says that her mother was "quite protective" and that "if she told Dorothy to do something, she'd do it against my wishes" (31), he nevertheless agrees that the decision to get married in Kerry was Dorothy's - not her mother's (32).

25.       Other evidence from psychological sources. The psychological "tests" carried out in first instance indicate that the Petitioner (just as the Respondent) was intellectually "within the normal range", but that she "has great difficulties with interpersonal relationships. Her record was very immature. She had a poor self-concept and a high level of anxiety and tension. There were indications of antisocial tendencies and of paranoid tendencies... She always had difficulty relating outside the family... [She has] negative attitudes towards people" (I, 57-59). Apart from the fact that the latter comments are irrelevant to a case being heard on grounds of a grave lack of discretion of judgment, they are not supported, but rather the opposite, by what witnesses say of her character at the moment of consent: for instance, her father's comment: "she could mix easily" (36/5); or the description given by her close friend, Marie F: "a very outgoing friendly person... got on with people very easily" (53).

            Another statement of this latter friend could perhaps cast light on the psychological evaluation made of the Petitioner in 1984, six years after the wedding. "Dorothy has changed a lot. She is not as confident as she used to be. Of the two of us she was always the confident one. She is not like that now. It [the marriage breakdown] has left her afraid to trust people" (56). It may be that the Dublin psychologist and the Appeal Judges did not take enough account of how people can alter. The events of life, and in particular the experience of a failed marriage, often make them change considerably. This underlines a point noted in our "In Iure" section: there is always danger in attaching retroactive value to psychological tests made years after the event upon which a judgment must turn.

26.       We now turn to the opinion "super actis" of the rotal Expert. Excluding any "disturbi mentali" or "deficit intellettivo" in the Petitioner, he nevertheless holds as "accertata la presenza nell'attrice, al momento delle nozze, un disturbo di personalità (propriamente caratterizzato da prevalenti tratti che si ritrovano nel Disturbo Dipendente ed Ossessivo-Compulsivo)..." (AS 8-9). Weighing what DSM says of persons with a Dependent Personality Disorder (especially the categorical statement that they "invariably lack self-confidence": DSM-III-R, 353; DSM-IV, 666) and recalling the evidence just given from witnesses, we cannot understand how the Expert so confidently applies this diagnosis to the moment of the wedding.

            From the first nomination of the Expert, along with the questions put to him, he was particularly instructed to quote (or give exact references to) passages in the Acts which would back up any diagnosis; his report however failed to do this. This omission clearly made it impossible for the Turnus to judicially evaluate his opinion, in the light of the other elements contained in the Acts. Only on the Ponens' insistence and after some considerable delay, did the Expert provide specific references. We have considered the more substantial of these above (10/3; 28/3; 33/4; 36/5; 40/5; 47/5; 53/5), and to us they seem completely inadequate to warrant any diagnosis of a grave and incapacitating Personality Disorder. The Expert also quotes other sources (such as impressions which some Judge-Instructor drew from the interrogation of the parties), which appear to be of even less value.

27.       The breakdown of the marriage. It seems likely that sex difficulties after the birth of their son (22/18; 23/21d), was a main factor contributing to the breakdown; just as her mother's interference undoubtedly was (23/21h; 33/4a; 35/14h; 38/14h; 45/4; 46/4; 50/14h; 55/14h, 55/16). To this can be added the fact of the great difference in their characters. Her brother felt: "the two of them just weren't suited... the problem basically was the two personalities of each" (43). Her friend, Marie F, was probably right: "they did not know each other" (53).

28.       We agree fully with the opinion of the first Sentence: "The problems in this marriage emerge very much as the kind that could have been solved by counselling and effort by both parties. There is no major indication to justify a plea of nullity" (I, 68).

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

            "IN THE NEGATIVE" that is, the nullity of the marriage has not been proved, in the case before the Court, on the grounds of a grave lack of discretion of

judgment in the Petitioner.

            .....

            Given in the Tribunal of the Roman Rota, March 3, 1994.

            Cormac BURKE, Ponens

            Thomas G. DORAN

            Kenneth E. BOCCAFOLA