cormacburke.me.ke

II. The Law

2.         "All persons who are not prohibited by law can contract marriage" (c. 1058). Among those affected by the restrictive clause of this canon are all who, although free from canonical impediments (cc. 1083-1094) and also from external force or fear (c. 1103), suffer from some substantial defect of mind or will - some psychic defect - which reduces the act of consent (that they give or wish to give) to something less than a human act adequate for the essential commitment of matrimony. The effect in law of such a psychic anomaly is to provoke consensual incapacity.

3.         Cases of incapacity due to deficiency in a person's psychic condition or makeup are covered by c. 1095: "They are incapable of contracting marriage: 1° who lack sufficient use of reason; 2° who suffer from a grave lack of discretion of judgment concerning the essential matrimonial rights and duties which are to be mutually given and accepted; 3° who are not capable of assuming the essential obligations of matrimony due to causes of a psychic nature". We think that everyone now accepts the opinion of M.F. Pompedda (cf. Incapacity for Marriage, Rome, 1987, p. 195) that the intention of the legislator is evidently to establish three distinct incapacities (even though, inasmuch as they have many points of connection, the boundaries between them seem at times to overlap).

4.         It would be an elementary error (and yet one at times committed) to assume that only no. 3 of the canon deals with psychic incapacity for marriage. On the contrary, psychic incapacity is precisely the topic of the whole canon, whose structure is designed to show how such incapacity can arise in three distinct ways. "Three kinds of psychic incapacity are indicated in canon 1095" (c. Boccafola, June 23, 1988: vol. 80, p. 429; cf. c. Stankiewicz, May 28, 1991, vol. 83, pp. 343-344). In other words, what links the three is the fact that the incapacity stems in each case from the psyche itself, and not from some non-psychic factor.

5.         Numbers 2 and 3 of the canon hold most interest in theory and practice, and also offer most difficulty of analysis. They cover incapacitating conditions that are due to some psychic anomaly or disorder (as distinct from one that is merely physical; whether or not one holds that such psychic disorders ultimately have biological-organic roots is irrelevant here). Number two comprises cases where the minimum capacity to grasp or critically judge the essential obligations of marriage is lacking. Such a lack represents a psychic anomaly as grave and incapacitating as the lack of ability to assume such obligations - the case covered in number three of the canon. In each case the person's consent - his or her elective decision - is invalid.

            Establishing the ultimate reason for the difference between each of these incapacities is not easy. It has been customary to say that in the case of nos. 1 and 2 the incapacity arises "ex parte subiecti", while in no. 3 it arises "ex parte obiecti". A Sentence of July 22, 1993 of the undersigned Ponens expressed the opinion that this analysis is not adequate, since the very concept of matrimonial consensual incapacity necessarily and in all cases implies a serious psychic deficiency in the would-be contractant (therefore, "ex parte subiecti") precisely in relation to the object of the consent, i.e. marriage (considered, the canon makes clear, from the viewpoint of its essential rights or obligations).

            Further study would appear to be desirable to throw more light on the logic which underlies the divisions in the canon. In the Sentence just referred to, a tentative solution of the problem was suggested: that of attributing defects of the intellective-critical faculty to no. 2, and those of the volitive-executive faculty to no. 3. In any case, the matter seems to stand in need of clarification.

6.         In studying the parallels and contrasts between the two numbers, confusion may be caused by insufficient advertence to the fact that the Legislator not only considers a different type of psychic incapacity in each, but also views each from a different angle.

7.         Number two of c. 1095 dwells on the seat of the incapacity, which is the intellective-critical faculty (where discretion of judgment is exercised), and takes care to specify that the defect operative there must be grave. The reason behind the specification is of course clear: that defects of discretion can exist in varying degrees. The mind of the Legislator is therefore also quite clear: slight or moderate deficiencies of discretion of judgment do not cause consensual incapacity; only a grave defect can do that.

8.         Number three of c. 1095 goes straight to the incapacity itself, without specifying its seat (although this, to our mind, cannot be other than the volitive-executive faculty), simply stating that the incapacity is due to causes of a psychic nature. If there is no mention of "gravity" in number three, this is because it is not necessary. It makes no sense to distinguish incapacity into "grave" or "less grave" (although some careless judgments do so), for incapacity does not admit of degrees; it either exists or it does not (cf. c. Pompedda, Oct. 19, 1990: R.R.Dec., vol. 82, p. 687). A difficulty can indeed be slight, moderate or grave. But an incapacity regarding something goes beyond a difficulty in its regard, precisely by taking the matter out of the area of what is difficult (even seriously difficult) and placing it in that of what is impossible. The Pope, in his 1987 Address to the Roman Rota, stressed the importance of this for canonical judgments regarding the validity of matrimonial consent: "For the canonist the principle is clear that incapacity alone, and not just difficulty, in giving consent... renders marriage null" (AAS vol. 79, 1457).

9.         The canon does not specify that the "psychic causes" behind the incapacity have to be grave; nor does it have to do so, for again this requirement should be evident. Consensual incapacity, in the case of something so natural as marriage, beyond all doubt constitutes an extraordinary human handicap or disability. It can therefore be rationally hypothesized or explained only as the result of some grave anomaly or disorder. Speaking of consensual incapacity in general (with reference therefore to both no. 2 and no. 3 of c. 1095), the Pope said to the Rota in the same 1987 Address: "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" (ibid.).

            The need for the gravity of the disorder producing consensual incapacity was well established in jurisprudence before the 1983 Code, and has since been confirmed time and again (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. Funghini, in una Toletana in America, April 29, 1987, n. 2; 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.).

10.       Common sense would never suggest and church law could never accept, that a person be declared incapable of marriage by some slight deficiency of mind, or by some common defect of will or affectivity: e.g. a somewhat low IQ, a mild or moderate obsessive or compulsive condition (agoraphobia, for instance, or kleptomania or other frequent anxiety disorders), a certain degree of affective immaturity or unemotional disposition, an irritable or highly-strung constitution, etc.

            It follows that it is inadequate and illegitimate simply to invoke some "longstanding psychopathology" as the basis for a declaration of nullity, while failing to give any specification of its gravity. The anomaly or pathology must have been both grave and operatively present at the time of consent; and this must be sufficiently proved (and any expert diagnosis as to its existence sufficiently corroborated) from the overall consideration of the Acts.

11.       The judge in the case before us lays down as a principle: "The community of life as required for Christian Sacramental marriage was never formed, and this community of life and love is not an ideal, but a right" (I, 96). The "ius ad communitatem vitae" is a vague expression which has resisted more than twenty five years of doctrinal and jurisprudential effort to establish its peculiar juridic content - a first step necessary if it is to acquire the status of an autonomous right, and moreover one of such importance that its non-concession at the moment of consent constitutes in itself a grounds of nullity. At this stage, it is hard to see what utility or legitimacy the expression retains as a working term for jurisprudence.

            Inasmuch as the "consortium" or "communitas omnis vitae" is synonymous with marriage itself (cf. c. 1055), it is brought into being, or "formed", through the act of valid consent, in the moment traditionally referred to as "matrimonium in fieri". It is misleading to refer to it as something peculiarly required by christian marriage, for it is equally of the essence of natural non-sacramental marriage between non-christians.

12.       It is the teaching of Christ that the marriage bond, once it is formed or constituted by competent persons who give valid consent, cannot be sundered or terminated by any human authority. That is why the concern of the law and the tribunals of the Church in seeking to safeguard the rights of the faithful, centers so much on the moment of consent. In that moment each party has the right that the other possesses the psychic capacity for what he or she is doing; and this capacity is judged in terms of the critical-estimative ability of the mind regarding the appreciation of the essential rights/obligations of marriage, and the freedom and executive strength of the will regarding their assumption. But the right does not extend beyond those elements of capacity required for the constitution of the marital "consortium" (matrimony "in fieri"). Therefore, while there is always a moral right that each spouse does his or her best later on, in order to make a continuing success of the "consortium" (matrimony "in facto esse"), canon law does not give juridic relevance to this right in determining the validity or otherwise of consent (always leaving aside questions of possible fraud: c. 1098).

13.       No one has the right to the actual fulfilment of all that marriage promises, whether this is seen from the viewpoint of its institutional ends, or of that of the personal hopes or aspirations of either spouse. Procreation is one of the institutional ends of marriage (c. 1055), and most people marrying want to have children. But children may not come. There is no "ius ad prolem", although there is a right that the other be open to procreation. Similarly, there is no right to the actual achievement of the "good of the spouses" (the other institutional end of marriage designated in c. 1055), although there is a right that one's partner sincerely accepts the essential obligations of marriage (mainly derived from the three augustinian "bona") through the living of which the "bonum coniugum" mainly tends to find its fulfilment.

14.       A last point should be noted. In the sentence under appeal we read: "a couple's serious failure to form a meaningful community of life and love is a significant sign of an invalid marriage" (97). This is clearly an unacceptable statement of principle. If it were legitimate, then the simple fact of a marital breakdown would in itself already be sufficient to create a strong presumption of a marriage invalid from the start.

III. The Argument

15.       We have to judge the marriage of two persons who married in their late teens, lived together for 34 years and had six children. As of course is clear, once the legal age of marrying has been reached, adolescent age creates no presumption of incapacity; this must be proved otherwise. Proof would have to be particularly cogent in the present case, given a marital history of such length and the number of children, since these facts evidently speak strongly against any thesis of incapacity.

16.       The decision by which the first instance court responded affirmatively to pleas under both no. 2 and no. 3 of c. 1095, contains practically nothing that might qualify as a judicial appraisal of the main elements of the case. Recalling the youthful age of the parties at marriage and their getting married in wartime, the Judge notes complaints of the petitioner about aspects of conjugal life, quotes some general remarks of the psychological expert, and - completely ignoring the abundant evidence from the witnesses about the parties' maturity at the time of marriage and their normal and happy life over more than twenty years - concludes: "All of this paints a picture of grave lack of discretion of judgment on the part of Brooke and Jean. On this ground the marriage can be declared invalid" (94). He continues: "On the grounds of incapacity to assume the essential obligations of matrimony... this marriage is also invalid" (95).

17.       The sentence conveys the impression that its findings have full support in the psychological expert's opinion, although it fails to give a literal transcription of the relevant parts of this opinion. The judge asserts: "From the psychological inventory, it has been shown that Brooke suffered from longstanding psychopathology... [which] indicates he could be diagnosed as a Severe Obsessive Personality or Schizophrenia" (95). "Brooke's fundamental incapacity was caused by his psychopathology" (I, 97).

            The psychological opinion was based on the tests made on the petitioner. Its conclusion (which should have been quoted literally) is in the form of a hypothesis rather than a diagnosis. "There is adequate support for the hypothesis that Brooke lacked the capacity to fulfill the obligations of marriage... as a result of longstanding psychopathology." Even this tentative opinion is immediately and prudently qualified by the expert: "To a large extent, however, this conclusion rests on the results of Brooke's MMPI profile and [on] the consonance of this test with the rest of the information in the file" (I, 78).

            The report is so tentative from the diagnostic point of view as to offer no scientific basis to enable the judge arrive at moral certainty in his decision. The psychologist speaks of "two possible diagnoses... Severe Obsessive Personality and Schizophraenia" (ib.). But she does not actually diagnose either disorder, just describing his "feelings of inferiority and inadequacy" and his unhappiness in married life as illustrating the hypothesis.

18.       Whatever is to be said about the judge's carelessness in interpreting a tentative and hypothetical opinion as if it constituted a clear and unambiguous psychological diagnosis, he failed totally in his judicial duty of examining the expert's opinion in the light of the rest of the Acts, to see to what extent the other evidence supports it; or, on the other hand, weakens or contradicts it. In our opinion, the psychologist's opinion in this case (based on tests made 43 years after the wedding) is not in consonance with the rest of the Acts.

19.       re the petitioner's discretion. The petitioner claims that "At the time of my marriage I was immature and I suffered from an inferiority complex. I think throughout our marriage I was constantly trying to prove myself in business, my railroad position, and working in church groups and service organizations" (I, 20). "I went in the Navy where I felt I could be my own person, a whole person. I did very well in the Navy" (II, 65). He insists that later on "I was successful in my work" (II, 67).

            We note that he began to work at an early age: "At age 18 I went to work for the railroad" (II, 65). He held his main job until retirement. This does not suggest immaturity. His physician for 30 years, Dr. J. Werk, asked about maturity at time of the marriage, replies: "I consider that Frank was mature and stable and responsible" (I, 62). There is no psychiatric record that could support his thesis. The petitioner himself testified that neither party ever had psychiatric treatment (11).

            According to the petitioner, the courtship was "generally happy" (21). At the time of the marriage, neither had doubts or hesitations (22), while both accepted the matrimonial "bona" (9). Asked in further instruction, "Do you feel you gave a mature and responsible consent to marry?", he replies: "I do not. I thought I could be responsible when the time came. I was too young" (II, 66). The anticipation of future responsibilites, which he mentions here, would seem to be a sign of discretion exercised rather than of the lack of it.

            The respondent states: "Our parents had given the consent [for marriage] required by the State of New York, something they would never have done had they for a moment considered both of us, or one of us, too immature for marriage" (II, 39). We note that in order to get the dispensation to marry, he had to make special trips to Brooklyn (II, 82). Her mother, a Lutheran, asked if she had doubts about marriage, says: "No. If I had had any doubts at all I would not have given my consent" (I, 67). She confirms in second instance: "they were both mature enough to enter into a valid marriage" (II, 24).

            The respondent further states: "At the time of our marriage and during the next 24 years, he was mature, emotionally stable and showed responsibility. He was a good provider and we had a good family life" (I, 37). She confirms this in second instance (II, 76; 86), where she also insists that there was nothing negative in his past history, no negative signs in the courtship (II, 74-75). She adds that at marriage he was "honest, hard-working, responsible... loving and affectionate" (I, 39).

            Eileen Saunderson, sister-in-law of the Petitioner, and a friend since childhood: "I can attest to his maturity and stability at the time of the marriage" (II, 26). The mother of the respondent says that the petitioner "was very mature" (I, 72). Dr. J. Werk, friend of the petitioner for 30 yrs: "I thought they were happily married... I consider that Frank was mature and stable and responsible" (I, 61-62). Others confirm this (I, 57; II, 24; II, 25).

20.       re the discretion of the respondent. No argument is advanced by the Sentence to justify the affirmative answer given to the doubt regarding the lack of discretion of the respondent. In its concluding lines, it simply says: "Jean, for her part, also manifested her own incapacity to relate meaningfully with her spouse, making her incapable of marriage with Brooke" (I, 97).

21.       Incapacity in the petitioner for assuming the essential obligations of marriage. The Sentence has no arguments for his incapacity, just stating, "The community of life as required for Christian Sacramental marriage was never formed, and this community of life and love is not an ideal, but a right. Brooke's unhappiness with the marriage from the beginning had its root in his own inability to form the 'consortium omnis vitae', due to his psychopathology" (I, 96)

            Apart from the fact that his "inability" is nowhere proved, the evidence - beginning with his - shows that a real «consortium» (whatever its limitations) was created between the parties and lasted more than twenty years. His admission of the existence of the "consortium" is clear, while his complaints about its lack (to him) of satisfying quality are equivocal. "We worked hard at being parents but never seemed to be close as friends... we co-existed for the sake of the children" (12). Yet, having referred to the courtship as "generally happy" (21), he says of their married life: "In the beginning and for many years I believe we were able to exchange affection" (22).

            To the question in second instance: "Several witnesses say that relations between you and the Respondent were normal for fifteen, twenty or more years after the wedding. Have you any comment?", he replies: "I made it look good... I always put on a front. I never let anyone know how things were" (II, 68).

            Reminded of his evidence in first instance, "As we grew older, we grew apart" (17), and asked: "Does this mean that in the first years of married life, you were close to one another as a couple?", he admits this was so for a time. "We were close... we had one year that we were close. We had two children and another on the way. Once the children came along we were never close. It was amazing to me that we had such fine children when she and I had nothing between us" (II, 67). Yet reminded in second instance of his earlier testimony of their ability "for many years... to exchange affection", he confirms its long duration, saying: "It totally ceased in 1969" (II, 68).

22.       In second instance he says: "We were good parents but never friends. I could never discuss anything with her" (II, 66). Yet this seems in clear contradiction not only with his evidence recalled above, "In the beginning and for many years I believe we were able to exchange affection" (I, 22), but also with other statements: "I believed and respected her in the early years. She was a fine mother, but we never made it as partners" (23); "she accused me of putting her on a pedestal. I thought that is where every man puts the woman he loved. We spent 34 years together and wound up not knowing, caring or loving each other" (I, 24). In second instance, he repeats, "I always had her on a pedestal" (II, 68).

23.       One also notes that during divorce proceedings, reconciliation was proposed by him: "I stopped the court action at one point and consulted with former spouse. I asked her if I were to accept 99% of the causes for our marriage problems would she accept 1% and we would try again. She said no" (I, 12; cf. I, 24). He confirms this in second instance (II, 70).

24.       If we consider the overall burden of his evidence, it is clear that he stresses defects on her part rather than on his own. "She ran the home but never would take any responsibility or wish to know the financial problems of the family" (I, 23). "I believe a man works for the approval of his family and peers but most of all from his wife. I can't remember a time in our marriage when my efforts weren't always put down by my former spouse... instead of support she constantly badgered me" (I, 14). He insists even more on this in second instance, blaming her for the absence of "partnership" and "support". "You have to have someone to turn to and Jean was never there for me" (II, 67). "There was no partnership in this marriage. Jean diminished me as a person. She was never supportive. She was never a friend" (II, 70). In fact, despite the plea of personal incapacity on his part, he asserts his own success and her incapacity for appreciating it: "I was successful in my work... I achieved a great deal. She never acknowledged me as a success. I never made it in that woman's eyes. As far as she was concerned I was not successful at anything" (II, 67). "I believe I coped with my family responsibilities working 2 to 3 jobs to support them. Apparently I didn't have the ability to cope with my spouse's needs or know them" (I, 20); but he does not say what these needs might have been.

25.       The breakdown. The breakdown in the marriage would seem to date clearly from 1969, the year when the petitioner says affection between the parties "totally ceased" (II, 68). By this he seems to refer particularly to the ceasing of intimate relations between the spouses, after the respondent's hysterectomy in that year (ib. in fine). If we are to take the respondent's word, he then began to show a completely changed mood, and started an adulterous relationship with another woman (II, 86-87). "It was like a mid-life crisis" (II, 89). But such a moral crisis in the petitioner, occurring after twenty four years of fairly normal married life, offers no proof or suggestion of an original consensual incapacity.

            As the Defender of the Bond of first instance wrote: "nothing in his behavior indicates such [incapacity] up until 24 years of marriage. In all, the evidence indicates nothing more than a marriage which was entered into in the Church that had all the earmarks of a stable and loving union" (I, 90).

26.       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; neither on the grounds of a grave lack of discretion of judgment in the part of both parties, nor on the grounds of the incapacity of the petitioner to assume the essential duties of marriage".

[Omissis]

            Given in the Tribunal of the Roman Rota, July 14, 1994

            Cormac BURKE, Ponens

            Kenneth E. BOCCAFOLA

            Daniel FALTIN