cormacburke.me.ke

[English version: Studia canonica 30 (1996) 533-552]

I. The Facts

1.         Anthony and Louise met in 1956. They began to go out together, and were engaged after a year and a half. Their marriage took place in X, New Jersey, in Feb. 1959; at that time he was in his twenty fifth year, she in her twenty first. Their married life, to which three children were born, lasted twenty four years, although during that period Anthony several times left the home temporarily. Finally they were divorced in 1986.

            In May 1987 Anthony petitioned the Tribunal of Camden to have his marriage declared null. The issue was joined on Oct 6, 1988 in these terms: "Has the nullity of this marriage been proven on the grounds of (1) lack of due discretion on the part of the man? (2) Psychic incapacity on the part of the woman?" Evidence having been given by the parties and five witnesses and an expert opinion, "super actis" obtained, the Court gave a Negative decision on both grounds, on Jan. 17 1989. The petitioner having appealed, the case went to the Interdiocesan Tribunal of Newark. There a new doubt was concorded on May 16, 1989 in these words: "it was decided that the case be tried on new grounds: Relative Psychic Incapacity".

            On Nov. 14, 1989 a Sentence was handed down in which the judges, acting, as they assert, as a "Court of Second Instance", declared: "we concur with the Court of First Instance" that the defect of due discretion on the part of the petitioner and psychic incapacity on the part of the respondent "were not conclusively proved". However, "sitting as Court of First Instance", they reached an Affirmative decision regarding the "new" grounds, i.e. "Relative Psychic Incapacity" (Acts, 164-172). They then sent the case to another Turnus of the same Appeal Court, to see it in second instance. However the judges of this second Turnus declared themselves incompetent. Finally the case was sent to the Roman Rota, in accordance with c. 1682, § 1.

            On the initiative of the Defender of the Bond of our Apostolic Tribunal various incidental questions regarding the possible nullity of both sentences were raised. Rotal Advocates "ex officio" having been assigned gratuitously to each party, these questions went through a long drawn out process and were only resolved after three years. Finally, on April 14, 1994, the cause was sent on to ordinary examination in third instance, the Turnus decreeing that the doubt to be resolved should be: "Whether the nullity of the marriage is proved on the grounds of the incapacity of either party or both to assume the essential obligations of matrimony".

            No new instruction of the case was requested or performed. Now therefore, having received the Observations of the Defender of the Bond and the Briefs of both Advocate, we must reply to this doubt.

II. The Law

2.         The natural right to marry. Marriage corresponds so much to God's normal plan for human fulfillment that there exists not only a natural inclination towards marriage but also a natural right to marry, which is expressed positively in canon 1058: "All persons who are not prohibited by law can contract marriage". Among those affected by the restrictive clause of this canon are all those who, though free from canonical impediments (cc. 1083-1094) and from external force or fear (c. 1103), suffer from some substantial defect of mind or will, i.e. some psychic defect, which so affects and reduces the act of consent in their case that it can no longer be considered a human act adequate for the essential commitment of matrimony. The juridic effect of such a psychic anomaly is to provoke consensual incapacity, as dealt with in c. 1095.

3.         Consensual incapacity implies the presence of some significant psychic anomaly. Incapacity for marriage is clearly an extraordinary handicap - which would be quite inexplicable in any normal personality. In stating this, one must remember that "normality", within the terms of christian anthropology, is necessarily marked by some defects in a person's psychic constitution. As Pope John Paul II said to the Roman Rota in 1988: "Slight or moderate psychopathologies... do not substantially prejudice the freedom of the person to tend to transcendental ideals, responsibly chosen... Therefore, for the canonist... the concept of normality, i.e. of the normal human condition in this world, also includes moderate forms of psychological difficulty" (AAS 80 (1988) 1181). Only a significant abnormality in the person's psychic makeup can provoke consensual incapacity.

            The presence of a grave underlying anomaly is required in the cases of incapacity described in no. 3 of canon 1095, just as much as in those described in no. 2 of the same canon. "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.

            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.

            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", for incapacity does not admit of degrees; it either exists or it does not" (Carolina Case of July 14, 1994, coram Burke: Monitor Ecclesiasticus CXX (1995-IV), pp. 539-540). Clearly then the origin, root or cause of consensual incapacity, whether under 1095, 2° or 1095, 3° , must always be grave. Otherwise, we repeat, no rational explanation could be offered of such a severe human handicap as incapacity for a choice so natural as marriage.

4.         "Regarding the incapacity to undertake the essential obligations of marriage, it can never be sufficiently recalled that one must make a distinction between a mere difficulty however grave and a true impossibility of fulfilling what is contained in the nuptial covenant. There can be no question of 'more or less' in impossibility; and so it is improper to speak, as at times some do, of the need to prove its seriousness, unless one wishes to refer to the cause of the incapacity. This cause should be psychic in nature, as the Code specifically states, nor can it be anything but grave and even extremely grave so as to produce a true impossibility in those marrying; it should therefore take the form of some anomaly or psychic disorder, otherwise an incapacity or inability to fulfil [marital] obligations would be unintelligible" (c. Pompedda, Dec. 18, 1991: R.R.Dec., vol. 83, p. 862).

5.         Summarizing these basic points one could state: a) consensual incapacity is a grave personal handicap; b) incapacity involves real impossibility, not mere difficulty (cf. John Paul II to the Rota in 1987: "For the canonist the principle is clear that incapacity alone, and not just difficulty, in giving consent... renders marriage null": AAS vol. 79, 1457); c) while it is clear that an incapacity itself cannot properly be qualified as "grave", it is equally clear that (depending on the angle from which one views the matter) there must be gravity both in the defect of mind or will provoking the incapacity, and in the actual cause of this defect (an incapacitating psychic defect proceeding from a slight cause makes no sense); d) consensual incapacity therefore always implies the presence of a serious psychic pathology or anomaly in the person: "An argument for real incapacity can be entertained only in the presence of a serious form of anomaly" (John Paul II: loc. cit.).

6.         Married personalism and interpersonalism. The case we must judge today requires special attention to be given to the theory of "relative consensual incapacity". Since this hypothesis is seen by some as a logical consequence of an "interpersonal" understanding of marriage, some brief preliminary considerations on married personalism and interpersonalism may be helpful.

            Insistence on the personal and interpersonal aspect of the marital covenant was greatly intensified after the Vatican II Constitution Gaudium et Spes. At the rotal level, Msgrs. Lucien Anné and José María Serrano were outstanding in this work. Rotal jurisprudence now seldom fails to stress the interpersonal relationship, with due note of the fact that it is only adequately applied to marriage when its conjugal character is emphasized.

            The interpersonal theories of marriage can suggest rich analyses when adequately linked to christian personalism, with its key anthropological idea that "man can fully discover his true self only in a sincere giving of himself" (GS 24). Christian personalism has had a notable impact in the field of canonical marriage law; one could cite among other instances the new way in which c. 1057, § 2 expresses the object of matrimonial consent.

7.         Obviously not every thesis advanced in the name of married personalism or interpersonalism is necessarily valid. The presuppositions in each case will logically be tested over the course of time, gradually gaining or losing acceptance. It is to be expected that in a phase of "ius condendum" (such as the 1970s) many ideas be put forward, although not all will be found to withstand juridic analysis. In a period of "ius conditum", as we find ourselves again since 1983, it is important to take due note of the particular options made by the Legislator and to understand the significance of his selections and rejections.

8.         For instance, one of the personalist phrases of Gaudium et Spes whose juridic force was most frequently debated during the 1970s was certainly the description of marriage as "intima communitas vitae et amoris coniugalis" (no. 48), or (to a lesser extent) as "totius vitae consuetudo et communio" (no. 50). The 1983 Code accepted neither of these phrases as a definition or description of the marital covenant, but the more traditional "consortium totius vitae" (c. 1055). The suggestion to include a right "to those things which essentially constitute the communion of life" ("ad ea quae vitae communionem essentialiter constituunt"), among the elements whose exclusion would cause invalidity, was given more consideration (Communicationes 9 (1977) 375) but was in the end excluded; the reason being apparently that whatever proper juridic content it may have is already covered by the "essential element or property" of c. 1101, 2 - whose further determination pertains to jurisprudence and doctrine (ib. 15 (1983) 233-234).

9.         In the 1970 debates, a constant point of reference was the rotal sentence coram Anné of Feb. 25, 1969, which first attempted a juridic analysis of the entire paragraph of Gaudium et Spes 48, which contains the much quoted phrase, "intima communitas vitae et amoris coniugalis". Working from personalist presuppositions, Anné wished to determine the formal object of consent according to the mind of the Council: "ad circumscriptionem obiecti formalis substantialis consensus matrimonialis" (R.R.Dec., vol. 61, p. 181). The emphasis which he himself places on certain words of the Constitution should be duly noted: "The Second Vatican Council, speaking of the act by which marriage is entered, clearly teaches: "The intimate partnership ["communitas"] of life and love which constitutes the married state has been established by the Creator and endowed by him with its own proper laws; it is rooted in the contract of its partners, that is, in their irrevocable personal consent. It is an institution confirmed by divine law and receiving its stability, even in the eyes of society, from the human act by which the partners mutually give and accept one another" (GS 48). This proposition of the Second Vatican Council has a juridic sense. For it does not look at the mere fact of inaugurating the community of life but the right and obligation towards this intimate community of life".

            Here, while Anné centers his analysis not on "love" (as some have maintained) but on the "communitas vitae", he shows special interest in the expression "mutually give and accept one another", underlining the "one another" ["sese"]. This interest of his was to be fully borne out in the event for, when the 1970 debates were over, it was this phrase which was to be accepted and codified in order to express in a more personalist way the nature and object of matrimonial consent: "... 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 a marriage" (c. 1057, § 2). It is therefore no longer the beautiful (but juridically rather vague) "intima communitas vitae et amoris coniugalis" of Gaudium et Spes, but this equally personalist (but more concrete) concept offered by the Code of the mutual conjugal "giving of self and acceptance of the other", that should be submitted to juridic analysis, so as to extract from it valid ideas and principles for canonical discourse and practice.

10.       The "relativity" of consensual incapacity. The whole of c. 1095 is about "relative incapacity": i.e. psychic incapacity relative to marriage, or more concretely still, relative to the essential rights/obligations of marriage. This is clear from the wording of the canon (cf. M.F. Pompedda, in Incapacity for Marriage: Jurisprudence and Interpretation, Rome 1987, p. 205). However, the suggestion has been at times made that the canon (or if not the canon, the law) contemplates "relative incapacity" in a different sense - "incapacity" relative not to the essence of marriage as such or to the essential elements of the matrimonial institution, but to the concrete partner with whom consent was exchanged. It is this hypothesis which is of interest to us for the case before us today.

11.       Since the early 1970s, Msgr. José María Serrano has endeavored to construct this figure of "relative incapacity" (in the latter sense just noted), as an extension or necessary consequence of the "ius ad relationem interpersonalem". His admirable perseverance in proposing the thesis over twenty years is a tribute to his conviction and tenacity; it does not however necessarily bear out the tenability of the thesis itself. Many ecclesiastical judges and jurists, who also regard marriage in a personalist light, do not accept the validity of the figure of relative incapacity, or the arguments adduced to support it.

            In a sentence of April 5, 1973, Msgr. Serrano suggested that a person free from any grave personality defect or from an incapacity for other relations, may nevertheless be incapable of interrelating to the particular person chosen as spouse, with an incapacity such as to render his or her consent null (R.R.Dec., vol. 65, p. 326). This thesis is repeated in many other sentences of the same illustrious auditor, notably in one of July 9, 1976. Placing the characters of the two spouses at the root of the alleged ground of nullity, he argues that "from the very nature of the investigation to be carried out, there is immediately and necessarily required a study of the other person with whom one wishes to enter marriage; who can be wanting precisely in that he cannot accept the other with his or her personal defects; or only with considerable difficulty be capable of assuming the one conjugal partnership"... This way of appraising matters is specially to be approved in regard to marriage, since the conjugal partnership embraces the whole of life and with as much spontaneity as intimacy covers everything that "one with another" can experience; hence it is easy to foresee whether this "coexistence" constituted in favorable circumstances of accord and attachment of soul will stably continue so; otherwise it will become morally impossible".

            "In consequence there must arise what is qualified as the "relativity" of the grounds of nullity, which may be upheld in the case. For the incapacity will be predicated of the conjugal relationship alone, whatever may be of the capacity of the parties in other operations and dispositions of their psychic life; and it will affect that one marriage in the concrete "pair" ["diad"] that enters each individual marriage. [Such incapacity must indeed be conceived with caution] since it can leave intact the powers of mind and will for the adequate performance of any job and for proper social intercourse; and indeed for the establishment of an affective and even intimate relationship with a suitable person" (vol. 68, p. 317).

12.       These last words express the practical import of the theory, and also provide the reason why most jurists consider that it is not an acceptable interpretation of consensual incapacity as contemplated by c. 1095. It allows that two persons can be incapable of marital consent vis-a-vis each other; and that not for any personal pathology (for they both fall within the limits of normality), but because of a "pathology of the couple". The practical effect is that what began as a loving relationship gradually turns "pathological", and this "relational pathology" is considered sign or proof of an original [personal?] incapacity for marriage.

13.       Several points and questions already arise at this juncture. Every true incapacity presupposes a pathology; but not every pathology involves or proves an incapacity. Does relative consensual incapacity demand the presence of a pathology? If so, must it be grave? If, as is almost always true, the parties had a very strong interpersonal relationship and mutual attachment at the time of the wedding, how is this to be reconciled with their (relative) consensual incapacity at that very time? If, in total contradiction to their belief then, they were incapable of living married life, could they have been normal at that moment? If they were in fact normal then, could there have been a real pathology present in that act of consent? Or is one in fact rather speaking of a pathology that might or would arise in them (or in their relationship) in the future? In whom or in what does the thesis situate the pathology? If, in relative incapacity, the alleged "pathology of the couple" is abstracted from the persons (who are fundamentally normal), how - through what medium? - can it attach to the relationship? We do not feel we can give an answer to all of these questions; but some must certainly be faced.

14.       The most evident weakness of the theory of relative incapacity is that it dispenses with the need of any serious psychic anomaly in either of the parties. Their marriage can be declared null, even if both fall within the limits of canonical normality. This directly contradicts the principle stated above, drawn from jurisprudence and doctrine as well as from the declared mind of the legislator, which requires the presence of a serious anomaly for a marriage to be declared under c. 1095.

15.       Admittedly, judges who support the theory of relative psychic incapacity usually indicate some anomaly in the parties, even if it is not severe. So we read in the "In Iure" considerations of the appeal court in the case we are judging today: "It is possible in a given marriage that the two people both suffer from moderate disorders not sufficiently severe to render them absolutely incompetent as individuals, but so conflicting that the two people are incompetent relative to each other" (Acts, 167). In a sentence of December 13, 1991, Msgr. Serrano seems to go even farther than this: "while relational or relative inability is sufficient to cause incapacity for marriage, it is evident that such inability is better and more easily demonstrated by the greater psychic disorder of either party, shown also through traits each one may show which are characteristic of an abnormality, even of a non-grave type" (vol. 83, p. 772). According to this, if we have read it correctly, no personal psychic disorder in either party is needed to declare relative incapacity; if a "disorder" (even when the term is used in the sense of non-grave defects of character) is present, this simply makes the proof of the incapacity stronger. The consequences of this thesis seem inescapable: if slight characterial defects, once they are found to stand in mutual contrast, cause incapacity, then any marriage can be invalidated.

16.       Returning to the earlier sentence of of July 9, 1976, we note that it was subsequently reviewed by another rotal Turnus which not only reversed the decision but found the relative incapacity theory unacceptable. The sentence (c. Masala, of April 20, 1982) first noted a great juridic vagueness in the notion of the "interpersonal relationship" - to which the theory look for its foundation. "The sentence under appeal, however, in no way designates and defines the juridical elements of the specific interpersonal relationship or communion of life, for whose establishment those marrying should be suited, but itself merely limits to asserting in a general way the need for a "relative capacity" for entering marriage, and for this thesis cites many specialists in psychology who propose theories that are not seldom far removed from the anthropological principles common among Catholic authors. It therefore takes up merely psychological concepts and elements which it gratuitously transfers into the juridic sphere".

            The Masala sentence later expressed the more substantial criticism of the theory which is now common among authors: "According to the sentence, incapacity for interpersonal relations should be considered «"not in its abstract and complex theoretical configuration, but - and this is as it should be - according to its concrete existence», and for this purpose, a study should be made of the other party with whom marriage had been entered, «who can be wanting precisely in that he cannot accept the other with his or her personal defects; or only with considerable difficulty be capable of assuming the one conjugal partnership». We cannot accept these conclusions..., for that type of incapacity must be defined not according to the varying comparison of subject to subject but by objective reference to the substantial obligations of matrimony defined in the juridic area... which flow from the substance, the properties and the end of marriage".

            It is certainly true, as Serrano well says, that each marriage must be considered in its singularity and "concrete reality" ("iuxta concretam exsistentiam": vol. 68, p. 317), also for the purposes of judging possible invalidity of consent. But the law indicates the relevant aspects of that concrete reality which are capable of producing such a momentous effect as consensual incapacity. The clear and literal tenor of c. 1095 of the 1983 Code confirms what was expressed in the 1982 Masala sentence: the juridic elements to be taken into account in judging capacity are the essential obligations of marriage considered in themselves, not the relative interplay of the characters of the spouses. As M.F. Pompedda concisely remarks, c. 1095 speaks "of a relativity only in relation to the essential obligations of matrimony. It does not speak of any other kind of relativity" (op. cit. 205).

18.       In practice a major weakness of cases upholding "relative incapacity", is that the proof offered to establish an "incapacitas ad relationem instaurandam" (which, if really proved to go back to the moment of consent and to affect the essential obligations of marriage, would be invalidating), generally shows no more than an "incapacitas [difficultas?] ad relationem sustinendam". Such "proof" is of course easy to offer once a marriage has broken down. However, it is quite inadequate to demonstrate consensual incapacity under c. 1095, unless the judge (and not the expert): - a) can achieve moral certainty that the breakdown was due to a real impossibility, and not to a simple (unfaced) difficulty, to assume the essential obligations of matrimony; - b) has received a reliable expert opinion (solid from the professional-scientific viewpoint, and borne out by the Acts) that this incapacity was caused by a specific and grave psychic anomaly already present in one or both parties at the time of consent.

19.       Here we feel it is useful to refer to certain passages in the "In Facto" part of the sentence c. Serrano of Dec. 13, 1991. We do so, not certainly to enter on the merit of the case or the decision (which is not our competence), but because the passages in question exemplify certain psychological opinions at times proferred in support of the thesis of relative incapacity. Three expert reports were given at the rotal hearing of the case, all of them based exclusively on a reading of the Acts. Of them, the sentence states: "All with striking agreement are unhesitating about the incapacity of the parties to relate to one another". Prof. De Caro is quoted: "the Acts show one single true incapacity of the two persons: that of creating (and perhaps of programming) a true unity as a conjugal couple, with all of the characteristics that are indispensable so that the program of common life be translated into an authentic 'communion of life and love'" (p. 771); and the sentence comments: "The whole expert opinion therefore insistently asserts the incapacity for setting up the relationship: which, according to the principles expounded in our "In Iure" considerations", is more than sufficient for the nullity of the covenant".

            The Ponens notes that the experts are all agreed "on the absence of a grave disorder in each [spouse] taken separately". Nevertheless, one of them, "after affirming the disorder" [which therefore would be slight?], adds that "the respondent had a notably anomalous character and personality (at least in regard to the petitioner)..." (p. 774). Moreover (continues the expert), "All of this renders us certain in stating the existence in both... not certainly of a basic 'incapacitas', a priori, with regards to any person, but of an 'incapacitas' between these two persons" (p. 773).

            Leaving aside the question of whether these opinions take the factor of human freedom into due account, we suggest that rather than a scientific diagnosis of a constitutional relative incapacity (a hypothesis certainly not admitted by all psychologists), they represent "a posteriori" psychological explanations of the breakdown of a marriage between two admittedly normal persons: "after the frustration of their own ideal", in the Ponens' words.

20.       From the anthropological viewpoint we are left somewhat perplexed by some further remarks of this expert: "In our present case, apart from the fact of two peculiar psychological structures, the incapacity was aggravated by the mutual "idealization" which was present and whose later collapse and fragmentation made the conflict more bitter and resentful, with an inextricable entanglement of causes and motives" (p. 773). If this is accepted (and we have met the idea elsewhere), then the fact that two people - later claimed to have been relatively incapable - were "in love" at the time of their marriage, becomes a confirmation and even an aggravation of their relative incapacity!

            From the viewpoint of the probatory value of expert opinion, if a marital breakdown is often marked by an "inextricable entanglement of causes and motives", as the expert himself aptly observes here, it is surprising to find him singling out relative incapacity as the cause of the breakdown, and claiming scientific certainty for his diagnosis.

21.       A very particular difficulty that arises with "relative incapacity" is the clear determination of its subject. In last analysis, the theory seems to hypothesize "impossible" relationships, rather than incapable persons. So the subject of the incapacity tends to be displaced from the person (one or both of the two individuals concerned), to the relationship - the union or "consortium" - which they wished to constitute. Perhaps something of this is noticeable in the sentence of Dec. 13, 1991: "Besides the inability of individuals, the inability also of persons as a partnership (that is, as spouses)... can also give rise to cases in which the essential defect of capacity comes from both together inasmuch as they meet in one". Can one speak of "relational incapacity" in this sense: incapacity not of any individual, but of the couple "as" a partnership? The sentence goes on to cite approvingly the expert's diagnosis of a grave pathology of the "consortium", although the same expert had already (p. 771; see above) said there was no grave pathology in the individuals. "In the verification of the expert opinion, the expert finally dispelled any doubt: "Undoubtedly we have a grave pathology of the couple" - which, the sentence interjects, "we described above as [a pathology] towards the partnership". The expert continues: "The abundance and solidity of the material [evidence?] regarding the conflictive situation makes me hold that it is not necessary to attain any absolute diagnostic certainty regarding the individual persons involved" (ib.).

            It is here that the philosophical inconsistency - untenability - of the thesis of "relative incapacity" most appears: its hypothesizing a grave "pathology of the couple", without there being any grave or even clearly diagnoseable anomaly in either of the persons. Consent is an action of an individual person, reciprocated (or not) by another individual. Capacity for consent pertains to the person; and so does incapacity. Canon 1095 gives norms for judgments about "pathology of consent", not about "pathologies of couples". It is the person who may be incapable of entering the married relationship; incapacity is predicated of him or her or both, not of their relationship. The married relationship is truly designated as interpersonal; but it cannot be hypostatized or personalized, as if it itself were the subject of freedom and responsibilities, of rights and duties, of capacities and incapacities.

22.       That the arguments for "relative psychic incapacity" have failed to convince other judges of the Rota, is borne out by the long list of Auditors who have rejected the thesis (bearing in mind moreover that it is a grounds seldom adduced): 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. Masala, April 20, 1982, vol. 74, pp. 173-174; c. Egan, July 28, 1983, vol. 75, p. 489; c. Stankiewicz, Oct. 24, 1985, vol. 77, pp. 448ss; c. Ragni, May 24, 1988, n. 5; c. Palestro, June 5, 1990, vol. 82, p. 479; c. Pompedda, Oct. 19, 1990, vol. 82, p. 689; c. Colagiovanni, March 5, 1991, vol. 83, p. 138; c. Faltin, Oct. 21, 1991, ib. p. 558; c. Civili, March 2, 1993; c. Funghini, June 23, 1993, nos. 5-9; etc.

23.       The sentence coram Funghini of June 23, 1993 merits special attention. After careful consideration of the question, it concludes that the "absolutely prevalent" jurisprudence of the Rota rejects relative incapacity. In a brief résumé it gives the main principles governing consensual incapacity under c. 1095, as now consolidated in doctrine and jurisprudence. A consideration of these principles, which are set forth with admirable concision, makes it evident how "relative incapacity" fails to meet the essential and established requisites for consensual incapacity. Thus: a) "Each party must be under his or her own incapacity at the moment of consent, independently of the other"; b) "Incapacity is not the sum of the slight pathologies of the two contracting parties"; c) "According to the tenor of the canon, the incapacity must be in regard to the essential obligations of matrimony, originating in causes of a psychic nature, and not in regard to the person of the other spouse"; d) "The criterion for incapacity is to be drawn exclusively from the disturbed pre-marital psychic state of one or both parties. From their conjugal life together, one can draw a confirmatory but not a constitutive argument regarding the psychic disorder or anomaly and its gravity".

24.       Incompatibility. In practice, the thesis of "relative psychic incapacity" is scarcely distinguishable from that of "invalidating incompatibility". Both are unacceptable for the same ultimate reasons. On the one hand, it is not the province of the law to judge compatibility of character. On the other hand and above all, there is no basis on which ecclesiastical judges can justly or reasonably declare - with moral certainty - that two people, once so much in love as to choose to marry one another, were in fact constitutionally unable to get on. There is no way in which one can judicially decide that the eventual breakdown of their covenant of love was the result of an original incapacity to assume the essential obligations of marriage, and not of a simple post-wedding failure to make the effort to conserve their initial love for one another, or at least to be faithful, despite the inevitable collision of (perhaps formerly unnoticed) defects. "The failure of the conjugal union is never in itself a proof which shows such incapacity on the part of the contracting parties, who may have neglected, or used badly, the natural or supernatural means at their disposal, or not have accepted the inevitable limits and burdens of conjugal life..." (John Paul II: AAS vol 79 1457)

            The grounds of "radical incompatibility" "is nowhere found in the Code nor in doctrine or in jurisprudence, because the root of the incapacity for giving marital consent would then have to be found in the diversity or the incompatibility of the characters of the parties". It is indeed a "grounds which can find no place in canon law, and which savors of civil law usage in divorce proceedings". "A diversity of character, which is something connatural and personal in each individual, can bring things to such an extreme that there is an incompatibility between the values, the ways of interpreting reality and of behaving in interpersonal relations, which most certainly makes these relations more difficult, but not impossible".

            A pre-Code case of special interest in this context is that coram Raad of April 14, 1975 (officially listed as one of the "Fontes" of c. 1095, 3° ). It considers the thesis of relative psychic incapacity under the particular aspect of "essential incompatibility" (indeed it equates the two: "relative psychic incapacity or [seu; i.e. that is] essential incompatibility"). The sentence notes: "there is practically no way in which it can be proved that an incompatibility was totally constitutional, prior to and accompanying the marriage, and not due to post-nuptial facts and events... If the permanence of the incompatibility in any really existed, neither the initial attraction or falling in love of the parties, nor their engagement, nor the marriage, nor their common life together however brief, could humanly speaking have taken place".

25.       "Incompatibility" is a psychological concept which is defined and measured by comparing the characteristics of two persons. "Consensual incapacity" is a juridic condition. It is not defined by interpersonal parameters (although it does of course have interpersonal consequences). The incapacity is judged in relation not to the other partner to the conjugal covenant, but to the essential rights/obligations of the matrimonial institution itself. So when psychologists qualify a particular marital relationship as being "incompatible", this psychological judgment provides no grounds for proceeding to a canonical sentence of consensual incapacity.

            Among psychologists themselves, not a few question the thesis of radical or unsurmountable incompatibility. That same 1975 decision coram Raad reports the response of a psychiatrist: "Your second question involves the concept of 'essential incompatibility'. Do you mean by this, basic, unchangeable and irrevocable incompatibility? If yes, I am not sure it exists" (vol. 67, p. 258).

26.       The notion of essential unchangeable incompatibility seems to be in conflict with basic presuppositions of christian anthropology. To declare that it is impossible, for instance, for an impatient person to live with someone who is lazy, or for two assertive or stubborn persons to learn to get along together, is to qualify as "impossible" what is simply difficult. To apply such a judgment to a basically normal person, is in effect to deny his or her freedom to struggle against their defects (including that element of "intolerance" towards others that we all tend to have). Moreover this either rejects as impractical the gospel command to love others, or ignores the need and efficacy of grace for this effort to live according to the gospel.

            The court expert in second instance in the case before us today gave the opinion: "There never was any genuine compatibility between these two individuals because almost by definition both were pathologic..." (Acts, 152). But this is an ("almost") pathology whose entity consists in its "relativity". The subjects are not pathological in themselves, nor toward third persons, but only vis-à-vis one another. This classical "incompatibility" theory is inacceptable within the christian perception of interpersonal relations (we are called to love even our enemies). From a jurisprudential viewpoint it offers no base on which a marriage bond or marital consent can be declared invalid.

            The court expert further remarked: "I assume both are disturbed enough that they probably cannot be adequate marital partners" (ibid.). The measure of juridic adequacy is different to that of psychological adequacy. Canon law addresses the question of the juridic adequacy of a person's consent, by examining his or her estimative/executive capacity - in relation to the essential obligations of marriage; here it seeks a minimum capacity, compatible with human freedom and dignity. The psychological assessment of "adequacy" takes its parameters from those of a well-developed and harmonious relationship - towards and with the other partner.

27.       The second instance judges in the case before us, on the basis of a presumed distinction between "simple psychic incapacity" and "Relative Psychic Incapacity", speak of the latter as "new grounds", distinct from the [simple] "incapacitas assumendi" of c. 1095, 3° [yet apparently falling within the same canon and number]; they concord the doubt for these "new grounds"; and, in a decision marked by obscurity, while agreeing - so they say - with the Negative decision already given in first instance on "simple" incapacity of assuming, they give an Affirmative decision on "Relative Psychic Incapacity".

            More of their argument should be given, since it further illustrates the thesis we are examining. The judges held that, although neither of the parties to the case showed symptoms of any grave psychic disorder and although "each could have possibly engaged in a viable marital union with a different partner", nevertheless "their ailments were of such a nature and degree that the defect of one aggravated and compounded the counter defect of the other. The result of which made their combined defects to be "severe", and causative of the destruction of all possibilities for them ever to establish any semblance of a close intimate genuine interpersonal relationship of loving and caring as true marriage would demand" (Acts, 170).

            In the case, therefore, each of the two parties is judged (also by the appeal court) exempt at the time of the wedding from any severe psychic disorder which could impede the freedom of their act of consent (and so, this act is admitted to be adequate in itself). It is the combination of their defects which is held to be "severe". Thus, if we correctly follow the judges' logic, this "meeting of defects" would constitute the "cause of a psychic nature" of which c. 1095, 3° speaks. But even if one tries to place oneself within this logic, a series of questions must be asked. How does the "cause" relate to, or antecede, consent (of one or both), with the effect of invalidating it? In whom, or in what, is the pathology located: in the person, in one or in both of them, or in the relationship between them? Can a relationship be severely pathological without there being any serious pathological defect in at least one of the persons involved in it? Is it impossible, or simply just difficult, for two persons who are basically normal, to assume and respect the essential obligations of married life?

28.       No substantial anomaly being present in either party, the severe psychic pathology is attributable, according to this argument, rather to the actual relationship they seek to establish: it is psychically flawed because their personalities just won't mix. Whatever one thinks of this thesis, it is clearly not what c. 1095 contemplates. The canon, properly speaking, does not deal with flawed marriages, but with flawed persons ("They are incapable of contracting marriage, who..."); not with marriages that cannot work, but with persons who cannot marry. Everyone is presumed capable of exercising his or her ecclesial right to marry (c. 1058), whose personality ailments or defects (there is no one without some) are not so severe as to take him or her outside the broad bounds of normality; or whose defects, even if severe, cannot be held disabling for the essential obligations of marriage.

29.       Canon 1095 is indeed intended to cover pathological cases. But the history, wording and application of the canon make it clear that the issue it contemplates is the capacity of the individual vis-a vis the essentials of marriage, not the capacity of couples vis-a-vis each other. It is concerned with the actual incapacity of a pathological or non-normal person to understand in a minimal way or to effectively undertake the essentials of marriage itself, not with the potential "pathology" which may eventually undermine the relationship between two basically normal individuals. It is concerned, in other words, with the effect on marital consent of a personal pathology, not with the pathological effect on a marital relationship that can develop from the (perhaps inadequate) interplay of two fundamentally normal persons.

30.       The thesis of "relative psychic incapacity", pretending to allow for the invalidity of the consent of two canonically normal persons, does not fit the terms of c. 1095; nor does one see how it could be the object of a judicial decision. If the parties are normal, what is the "psychic cause" of the incapacity which the canon speaks of? Is it the relationship itself - although the relationship is not yet established? Is it the future pathology of the relationship - although the parties themselves now consider it so lovingly and confidently as to want to turn it into marriage? Moreover, can a future pathology induce a present incapacity, in a normal person? If one answers that it can, is this not to fall into determinism? Is it not to say that these two normal persons, who now freely choose each other as married partners, are inevitably bound to end up as "incompatible"? Is this not to deny their dignity or their freedom or their responsibility?

31.       Psychological experts remain inside their competence in holding two people to be within the limits of fundamental normality, even if at the same time they judge them to have strongly antithetical personalities. The same experts would clearly exceed their competence if they declared that the marriage of such a couple can never work; for human experience shows that many highly successful marriages are between two persons of profoundly contrasting characters. In a case where it is claimed that what seemed to be original love was in fact radical incompatibility, the ecclesiastical judge should know what to expect and accept - and what not to accept - from experts.

32.       Certainly not everyone will agree with Jane Austen that differences of character between the spouses tend to favor their happiness: "it is rather a favourable circumstance. I am perfectly persuaded that the tempers had better be unlike... Some opposition here is friendly to matrimonial happiness" (Mansfield Park, Vol. III, Ch. 4). It is not always so. Temperamental contrasts can make married life much more difficult, and lead in the end to a breakdown. Would it not be a good thing if the Church had a clearer policy regarding such cases, and perhaps incorporated it into her law? But what policy can she adopt? - Allow two persons to enter on such "high-risk" marriages? - Forbid them? - Declare their marriage null if it does not work? - Allow it to be valid if it does? It should be evident that these questions, however one chooses to ponder them, find no answer in c. 1095

33.       Pathology is always present in cases of consensual incapacity. But jurisprudence is clear that the pathology in such cases does not consist in the foreseeable or unforeseen difficulty in maintaining a marital relationship, but in the original impossibility of ever maintaining it. To find it difficult to keep up a close and exacting human relationship, such as is marriage, is a sign not of pathology but of normality.

34.       It would be paradoxical if interpersonality were to have the effect of "depersonalizing" the relationship between two persons, characterizing it with defects not attributable to either of them personally, and denying them as a result a free or responsible role in the development of their relationship. It is precisely because interpersonality is not just a theory, but corresponds to concrete existential realities of human life, that it cannot be turned into an "infra-personal" or "supra-personal" phenomenon. No advocate of the interpersonality of human relationships, and especially of the marital relationship, would wish interpersonality to be used to reduce people to a situation where the personal freedom and responsibility of each one to relate to others become cancelled in a type of "impersonal interpersonality".

III. The Argument

35.       This case has been a source of perplexity in many respects and on varying levels. In first instance, a negative decision was given on the two grounds concorded: "lack of due discretion on the part of the man" and "psychic incapacity on the part of the woman". In second instance, the judges sought to introduce new grounds: "it was decided that the case be tried on new grounds: Relative Psychic Incapacity" (123). Acting, as they say in the introduction of their sentence, as "Court of Second Instance" (Summ. 164), they briefly outline the evidence of each party and his or her witnesses, note that it offers "so much absolutely contradictory testimony", note further that the two court experts involved also "present seemingly conflicting analyses", and then declare: "we concur with the Court of First Instance that the contentions of 1) lack of due discretion on the part of the man, and 2) psychic incapacity on the part of the woman, were not conclusively proved" (ib. 168-169). The two pages that follow are devoted exclusively to the opinion of the second expert. Then, in what is presented as the dispositive page, one reads: "we the undersigned Judges, sitting as a Court of First Instance, ... declare, decree and define in answer to the issues proposed for solution: Affirmative - that is to say the nullity of this marriage has been proven on the grounds of relative psychic incapacity" (170-172).

            A new "Turnus" of judges of the same Appeal Court, was then designated to try the case "in second instance". However the new judges declared themselves incompetent, the reason being their doubts whether the "new" grounds is really new: "We do not believe it is, for it again involves the psychic incapacity of the woman". They continued: "In their decision, the Judges declared they were acting as a court of second instance. If it were really new grounds that they were judging they could have given a decision as a first instance court. But basically what they did was reverse a first instance decision". And they concluded: "Insofar as the judges saw themselves as a second instance court, we in issuing a decision or ratifying the decision of November 14th, would be acting as court of third instance. This we are not competent to do" (174).

36.       Both the procedural method followed by the first "Turnus" of the Appeal Court and their jurisprudential logic puzzle us, just as it did their colleagues. We agree that what the Appeal judges did was "to reverse a first instance decision". Insofar as they pondered the merits of the case, it would appear that they wished to distinguish: 1) incapacity of the parties relative to the obligations of mtr; and here they seemed not to find the incapacity of either proven; 2) incapacity of the parties relative to each other; and here they wished to give an affirmative decision.

            Since: a) "relative incapacity" is not an independent or tenable grounds of nullity; b) the Judges nevertheless clearly wished to give an affirmative decision, we too must interpret their decision as a "Constat" on "incapacitas assumendi onera essentialia matrimonii", under c. 1095, 3° . We are therefore faced with two disconforming decisions on the same grounds; and so proceed to judge the case in third instance.

37.       In a situation such as that noted by the second instance judges ("absolutely contradictory testimony" between the sides, as well as disagreement between the expert opinions), it would seem impossible to arrive at the moral certainty necessary for an affirmative decision. Consequently a "non constat" decision would be mandatory, as was decided in first instance. But the appeal judges apparently thought that further consideration of the matter should be undertaken. Saying, "this was a most flawed and unhappy marriage - filled with argumentations, physical fightings, multiple separations", they add: "There must be a root cause behind all this turmoil" (169). There certainly must be a cause or combination of causes behind every unhappy marriage; but even the most accurate psychological explanation of why a marriage worked out badly, does not necessarily point to any flaw in the consent originally given, and less still does it judicially prove that the consent was invalid.

            However the judges do come to a conclusion of invalid consent, on the grounds of "relative psychic incapacity". They see proof to sustain this judgment in the opinion of the second expert, who discovered symptoms of an "histrionic personality disorder" in the respondent, and of a "passive-aggressive disorder" in the petitioner. They state: "We concur with the Doctor that the evidences of the Acta confirm the existence of the symptoms required to support these analyses", conceding however: "Admittedly these ailments were not overwhelmingly severe in either of them; indeed, each could have possibly enagaged in viable marital union with a different partner" (170). As we have seen in our legal considerations, rotal jurisprudence is clear that one cannot posit an incapacity under c. 1095, 3° in the absence of a psychic cause which is grave, "even extremely grave", as Pompedda says (vol. 83, p. 862). The judges' admission, therefore, should have impeded any conclusion of incapacity.

            Nevertheless, the judges continue: "But, their ailments were of such a nature and degree that the defect of one aggravated and compounded the counter defect of the other. The result of which made their combined defects to be "severe", and causative of the destruction of all possibilities for them ever to establish any semblance of a close intimate genuine interpersonal relationship of loving and caring as true marriage would demand" (ib.).

38.       The judges apparently consider that in this "meeting of defects" one can place the "psychic cause" of which c. 1095, 3° speaks. Cause of what?: - of consensual incapacity, relative not to the esnl rights/obligations of marriage as such, but simply to the aspect of "getting on well together". As we mentioned in our juridic considerations, this "pathology" of the relationship of two normal individuals is alien to the issue contemplated in c. 1095: the incapacity of an abnormal or anomalous person to understand or undertake the essential rights/obligations of marriage itself.

39.       The Judges do not give any reasons (cf. c. 1579, § 2) why they ignore the judgment of the first instance peritus, Dr. B., M.D., which carried a lot of weight with their colleagues in the lower court. Dr. B. considered that "Louise seems to have been an insecure individual in her personal life and possibly acted immaturely on many occasions, but there is not enough positive testimony to warrant a diagnosis of mental illness or paranoid personality disorder". He notes that she had a hypochondric condition, but concludes that "there is no positive testimony that Louise was affected by any abnormality at the time of the marriage". He is quite definite in holding that she was capable of assuming the essential obligations of matrimony at the moment of consent (96-97).

40.       Dr. B. also addressed the question of "compatibility". "Before they were married, evidently Anthony and Louise had excellent compatibility. Louise would work all day and then take a bus in order to get to the fruit stand that Anthony had put up and would continue to work in the fruit stand until it closed. Their lack of compatibility evidently came after the marriage when Louise suspected that her husband was unfaithful to her... In his own testimony, Anthony stressed the fact that the quarrels they had were always based upon her suspicion that he was unfaithful to her..." (98).

41.       Dr. C., Psychiatric Expert for the Appeal Court, did not interview either party, and bases his diagnosis mainly on what he has read about their quarrels. "There is evidence to support a diagnosis of hystrionic personality in Louise. Anthony exhibits elements of a passive-aggressive personality, though he does not fulfill all the criteria... Thus, their personalities were totally incompatible and their needs were inconsistent" (149-150). "Both of these individuals were capable of being responsible in certain areas, such as Louise has been described as a relatively good, though somewhat domineering mother. Similarly, Anthony has been described as a very good worker, employee, and family provider both financially and logistically. Interpersonally, however, neither individual was capable of responsible, adequate relationship. ... Both had problems dealing with anger and both gravitated toward an individual who purposefully would not provide for their own needs..." (151). "There never was any genuine compatibility between these two individuals because almost by definition both were pathologic and chose the other partner for sick and inappropriate reasons, including as a means of expressing their own hostilities and aggressiveness in destructive ways. Whatever compatibility did exist between them was a pathological and purposeful incompatibility which played itself out over the twenty-four years of their marital relationship" (152).

            From an alleged failure of each party to provide for the other's "needs", the expert concludes to a "purposeful" incompatibility. Without questioning the (quite likely) possibility that the parties treated each other with purposeful malice, at the end of their twenty four years relationship, we consider the expert's opinion, insofar as it relates to the moment of consent, as a psychological construct with no support from the Acts. The Judges did not ask the expert (nor will we) to explain how the "compatibility [that] did exist between them was a pathological... incompatibility", or on what evidence he concludes that each chose the other "for sick and inappropriate reasons".

42.       We note that the Defender of the Bond in second instance limits himself to quoting this expert's opinion at length and with total approval, finding nothing to object to it (159-162).

43.       The Acts also contain reports from Dr. D. Psychologist. His testimony, as one who directly treated the respondent, surely merited particular consideration. He gave her treatment for a condition of "Post-Traumatic Stress Disorder", following on motor accidents in 1982 and 1984, which he considers to have had "pronounced and negative effects on the marital relationship". But he continues: "Throughout the duration of my treatment with Louise, I was not aware of any pre-existing psychological disabilities or deficits which would render her impaired in any way. Accordingly, if I were to project backwards in time to the beginning of their marital relationship I could only conclude that Louise was at that time psychologically intact" (146).

44.       Turning to the evidence of the parties and others, we note the following. The petitioner acknowledges: "on the good side, she did a good job of raising our three children" (20); he repeats that as a mother she was "very good" (36). He also bore witness to her intelligence and to her excellence in education: "she was a high mark student" (33; cf. 53/72). The Acts also contain the testimony of Dr. Paul W., "Superintendent X County Regional High School District". The respondent had been elected President of the Board of Education: "In her role she displayed empathy, wisdom, intelligence and positive management techniques... her greatest strength was with her undestanding of the needs of the students" (128).

            The petitioner affirms that he married with the intention of having children (25); both intended the marriage to be permanent (26); no one forced them into it (28); the respondent confirms all these points (45/19; 45/22; 46). He also testifies that to his knowledge she never suffered from any sickness before the marriage (40).

            The evidence shows that the parties were fairly happy until at least 1967. The petitioner, asked why the marriage failed, replied: "she destroyed it between the years of 1967 and 1971. It was destroyed; I think it was a fragile marriage to begin with, but I think during those years when she was constantly accusing me of cheating on her and I mean physically beating me many times, I think it was destroyed then" (21). The respondent says: "The period of coldness [in the marriage] was from 1979", when he confessed to having been unfaithful (48).

45.       From the acts it seems clear that this marriage - perhaps, as the petitioner says, "fragile to begin with" - failed not due to any original consensual incapacity in the spouses but because, after eight or nine years of fairly normal and happy married life, they let themselves gradually drift apart.

46.       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 the incapacity to assume the essential obligations to matrimony on the part of one or other or both parties"

......

            Given in the Tribunal of the Roman Rota, October 27, 1994

            Cormac BURKE, Ponens

            Kenneth E. BOCCAFOLA

            Franciscus LÓPEZ-ILLANA