cormacburke.me.ke

I. The Facts

1.         In 1972, when they were both very young, Bernadette and Denis began "going steady". In May 1974, the girl was injured in terrorist bomb incident in which a working colleague was killed. She had to be hospitalized and undergo psychiatric treatment for some six months. During this very time, the parties began to have sex relations, which led to her becoming pregnant. As soon as the families learned of the situation, they quickly prepared the wedding which took place on January 10, 1975. Bernadette had just turned sixteen, while Brendan was eighteen. Their life together, from which two children were born, lasted until 1982; then she definitively left him for another man.

            The following year she petitioned the Dublin Regional Tribunal alleging nullity of the marriage on the grounds of grave lack of discretion on her part. The parties and six witnesses gave evidence, and each of the parties underwent a psychological examination with tests. In July 1987 a Negative sentence was given, which was reversed by the National Appeal Tribunal in April 1988.

            The Petitioner then appealed to this Apostolic Tribunal where she was granted free legal representation. The Turnus was twice reformed, and a new Ponens appointed. Meeting to decide the case in May 1991, a "Dilata" was decreed so that, after the proper faculties were obtained, new grounds could be included in the terms of the controversy. These were finally defined as follows: "Whether the nullity of the marriage has been established: a) in third instance, on the grounds of a grave lack of discretion of judgment on the part of the petitioner; b) as in first instance: (i) on the grounds of incapacity of assuming the essential obligations of matrimony on the part of both parties; or, (ii on the grounds of total simulation by the petitioner; or, (iii) on the grounds of force and fear inflicted on the petitioner?"

            In the new instruction carried out, only the respondent gave evidence. Efforts were made in vain to obtain the evidence of the petitioner's father; and the petitioner herself refused to testify further. Another psychological examination of the parties was conducted. Having received the Briefs of both Advocates, as well as the observations of the Defender of the Bond, we must now answer the various questions before us

II. The Law

2.         Incapacity implies an absolute condition. To speak of degrees of incapacity ("grave", "less grave", "partial" incapacity, etc.), is incorrect (although at times it is carelessly done). Consensual incapacity must always be total. There is no such thing in canon law as partial incapacity for marital consent.

            Certainly one can speak of a reduced psychic capacity, just as one can of a physical capacity. For the purposes of c. 1095, however, a reduced psychic capacity of itself does no more than increase the possible difficulty which a person may experience in coming to a decision or in carrying it out. Difficulty and incapacity are not to be confused, according to the principle well established and often repeated in rotal jurisprudence. Reduced capacity is not invalidating, unless the impairment or reduction of psychic powers is so grave that the subject is thereby made truly incapable. In other words, the question of gravity regards the cause of the alleged incapacity; this cause must indeed be grave, sufficiently grave as to produce the effect of true incapacity. In practice an affirmative decision in a case of alleged consensual incapacity seems unjustified unless one can trace the incapacity to a grave root or cause (perhaps constitutional or inherited, perhaps circumstantial) which strikes at the person's estimative or elective faculties regarding to the choice of marriage.

3.         While consensual incapacity must be total, does it necessarily have to be permanent? At first sight it would seem not. Matrimonial incapacity relates to the moment of consent; if a person is incapable at that moment, then his or her consent is invalid even if he or she acquires capacity later. Some see no difficulty in applying this indifferently to both nos. 2 and 3 of c. 1095. Others however disagree and hold that one must make a sharp distinction between the two regarding this issue of the permanence or not of the incapacitating condition. Therefore, while in the present case we are not mainly concerned with no. 3 of c. 1095, it may be helpful here to suggest some reasons why the principle which can be enunciated without difficulty of no. 2 of c. 1095 - i.e. that the incapacity contemplated there need not be permanent - , is not so easily applied to the grounds proposed in no. 3.

4.         Canon 1095 is concerned with the adequacy of the act of consent. Consent is not valid unless it: a) is the result of due understanding (proportionate to the seriousness of the commitment being undertaken) of the essential rights and obligations involved in this marital commitment; and b) proceeds from a free will capable of actually observing these essential rights and duties. Number 2 of the canon considers the case where consent is rendered invalid by a grave defect in discretion of judgment, i.e. a gravely defective exercise of the critical-estimative faculty. The essential rights/obligations of marriage (considered in themselves) constitute the object of this defective judgment - which is judicially examined solely in respect of the moment of consent, with no necessary reference to the future. As a result there is no difficulty in accepting that a lack of discretion of judgment, sufficient to invalidate consent, may later vanish or be overcome. Hence it is clear that the duration of the incapacitating condition does not matter in no. 2. There is nothing inconsistent in allowing that a grave defect of discretion can be produced by a transient cause and may have a transient duration, being mitigated or cease completely with the passage of time. It is sufficient that it be present and operative at the moment of consent.

5.         The matter does not appear in quite the same light when we turn to the "incapacity for assuming" considered in no. 3 of the canon. Consent is equally invalidated by the person's incapacity, but in this particular case the incapacity has of necessity a projection toward the future. The person is incapable of assuming because he or she is incapable of fulfilling. Fulfillment (a future event) will prove impossible to him because of a fundamental inadequacy of will residing in him right now.

            The truth and importance of this appear most clearly when one considers the requirements for proving this particular grounds. Proof that a person was incapable under c. 1095, 3° seems impossible in practice, unless it can be shown beyond doubt that in subsequent conjugal life he or she did not in fact fulfill some essential obligation of marriage. So while the canon speaks of an "incapacitas assumendi" (in the moment of consent), post-matrimonial conduct has a much greater bearing on the process than in the case of a grave defect of discretion of judgment. Hence the opinion that the subsequent possible recovery from, or overcoming of, the incapacitating condition should be evaluated differently according to whether it is no. 2 or no. 3 of c. 1095 that is in question.

6.         Here it should be said that a purely speculative consideration of this question can lead to analyses that are not always satisfactory in practice. On the level of theory, the matter admittedly seems of easy solution. If a person was truly incapable of assuming at the moment of consent, then consent itself is null and no subsequent cure can make it valid; thus no need for permanence or irreversiblity in the incapacitating condition appears. Therefore the thesis that an "incapacitas assumendi" can be temporary or transient seems theoretically unimpeachable. Yet as soon as one descends to a practical consideration, the thesis runs into very real difficulties.

7.         If an "incapacitas assumendi" can be transient, then it certainly invalidates the original consent, even if the anomaly is subsequently overcome, say, twenty years after the wedding, and the person acquires the capacity of assuming the essential obligations. But if the thesis is held logically, the same is just as certainly true if the incapacity is overcome twenty days after the wedding. Can this be reasonably maintained or adjudged? There is a difficulty here that is not easy to get around. On the one hand, who would posit a true incapacity that invalidates consent even if the incapacity is cured or disappears after three days or three weeks? On the other hand, it would appear arbitrary to set a minimum duration as a specific requirement for a true incapacity. Here a purely theoretical approach seems to fail us.

8.         The practical solution to these difficulties most probably emerges in the area of the judicial evaluation to be made of the psychological or psychiatric expert opinion, which is regularly given in such cases (c. 1680), and on which a judgment often hangs. Can genuine scientific certainty be justifiably attributed to a diagnosis of an actual "incapacitas assumendi" present at consent, if the person is simultaneously diagnosed as being now basically normal (implying therefore that there has been a cure subsequent to the wedding)? The validity of the necessarily retroactive application of the diagnosis of incapacity must in the circumstances become the object of grave doubts.

9.         So we see a clear contrast between nos. 2 and 3 of c. 1095. When it is a question of evaluating a person's discretionary powers, as exercised in one particular moment, one may indeed judge that circumstances were then present which impeded due exercise of discretion and so invalidated consent; nor is the force of this judgment weakened by the fact that these circumstances may disappear later - even shortly afterwards - and so the person becomes quite capable of marital consent. But when the judgment is about a person's basic capacity to assume the essential obligations of marriage (with the necessary projection to the future that this implies), the fact that he or she has overcome his or her alleged incapacity some short (or even long) time after the wedding, must at least cast doubt on the genuineness of his or her original incapacity. If the person is cured after a certain lapse of time, was there sufficient basis to speak of - to diagnose and adjudge - a true constitutional and fundamental incapacity? Or does not the more probable hypothesis force itself forward that what might have had the appearance of an original incapacity was in fact a simple (although maybe serious) difficulty, which the person could have overcome but did not actually do so until he or she chose to exercise his will more, strengthening it perhaps also by recourse to prayer and other supernatural means? "For the canonist the principle is clear that incapacity alone, and not just difficulty, in giving consent... renders marriage null. Besides, 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" (Pope John Paul II to the Roman Rota: AAS vol. 79 (1987) 1457).

10.       Whatever the merits of the view presented here, it is important that the core of the argument be accurately grasped. What is maintained is not that perpetuity enters as an essential element of the "incapacitas assumendi", or that perpetuity has to be proved if incapacity is to be established (in practice such proof would be well-nigh impossible). What is being suggested is that non-perpetuity [of the anomaly or disorder] quite undermines the claim or hypothesis of original incapacity from a probative point of view. Where non-perpetuity is a verified fact in a particular case (because the party's alleged incapacitating condition has disappeared or has been cured), this so fundamentally debilitates the proof of consensual incapacity as to render impossible the attribution of moral (or scientific) certainty to any diagnosis presented to the Court of an incapacity actually present at the moment of consent.

            Therefore we have no interest in proposing a positive thesis - that perpetuity is an essential component of incapacity. Our argument is pragmatic and negative: in the face of an actual cure or recovery from a condition diagnosed as disabling, it does not seem possible to resolve with judicial certainty the question whether the condition was a true incapacity, and not a simple difficulty.

            On the theoretical level of doctrine therefore, one can legitimately argue that an incapacity for assuming does not have to be marked by perpetuity. In practice however, if at the time of the canonical process an alleged incapacity has turned out to be temporary (because it has disappeared or been cured), then proper judicial reasoning seems to call for the conclusion that at the time of consent it was a transient (though perhaps serious) difficulty at most, and not a real incapacity in the canonical sense.

11.       Although some authoritative opinions hold that the question of perpetuity is irrelevant to the "incapacitas assumendi", the list of rotal auditors who think differently is long: cfr. c. Anné, Feb. 25, 1969, vol. 61, p. 185; March 22, 1975; c. Pinto, Mar. 18, 1971; vol. 63, pp. 187-188; July 15, 1977, vol. 69, p. 405; Feb. 12, 1982, vol. 74, pp. 68-69; Dec. 3, 1982, ib. p. 571; c. Lefebvre, Jan. 31, 1976, vol. 68, p. 41; c. Parisella, Feb. 23, 1978, vol. 70, p. 75; c. Ferraro, Nov. 28, 1978, n. 10; c. Agustoni, Feb. 20, 1979, n. 13; c. Bruno, March 30, 1979, vol. 71, p. 121; c. Stankiewicz, Dec. 11, 1979, ib. p. 552; Nov. 14, 1985, vol. 77, p. 490; May 28, 1991, vol. 83, pp. 348-349; c. Serrano, July 28, 1981, vol. 73, p. 423; May 26, 1988, vol. 80, p. 362; c. Egan, Nov. 10, 1983, vol. 75, p. 608; c. De Lanversin, Feb. 8, 1984, vol. 76, p. 91; c. Jarawan, June 19, 1984, ib. p. 372; Jan. 30, 1988, vol. 80, p. 41; Oct. 24, 1990, vol. 82, p. 716-717; c. Doran, July 1, 1988, vol 80, pp. 453-454; c. Giannecchini, Medellen., Dec. 20, 1988, n. 3; c. Ragni, May 2, 1989, vol. 81, pp. 312-313).

12.       It is true that some judges show an uncertain position on the matter. Thus Msgr. Doran, who in 1988 says clearly, "a grave antecedent incapacity must be perpetual, that is incurable" (vol. 80, p. 454), seems to recede somewhat from this position in 1990 (vol. 82, pp. 72-73); and perhaps the same is true of Msgr. Ragni (cf. Galway decision of Oct. 26, 1993, no. 8). One notes too Msgr. Giannecchini's words in a decision of October 4, 1991: "Antecedence and pepetuity or incurability are not necessarily required; these traits rather help the process of proof, inasmuch as a transient incapacity, that is, one which is short-term and curable by licit means, is presumed not to be grave or true, but rather a difficulty" (vol. 83, p. 520). The last observation seems fully in line with the considerations outlined above; if so, the whole passage could be taken as a refinement more than a contradiction of what the same Ponens wrote three years earlier in a (non-published) sentence: "an incapacity which results from the disorder must be true, antecedent and perpetual" (Medellen., Dec. 20, 1988, n. 3). The same practical connection between [non-]perpetuity and proof of incapacity is noted by other auditors who favor the theoretical position that perpetuity is not required: "On the other hand, the incurability of the incapacity is not required, even though this can provide an excellent criterion to distinguish a true incapacity from a mere difficulty" (c. Civili, July 10, 1990: vol. 82, p. 598).

13.       A sentence c. Stankiewicz of Nov. 14, 1985 states that "While a perpetual incapacity for assuming the essential obligations of marriage is not formally required by ecclesiastical law (cf. can. 1095, n. 3) so as to invalidate matrimonial consent, nevertheless [perpetuity] is rightly insisted upon in the order of proof of incapacity, since "unless incurability is proved, one cannot conclude to a true incapacity for permanent obligations" (J.M. Pinto: "Incapacitas assumendi matrimonii onera in Novo C.I.C.", in Dilexit Iustitiam, 1984, p. 25)" (vol. 77, p. 490; cf. dec. of the same Ponens of May 28, 1991: vol. 83, p. 349).

            The principle quoted here from Msgr. Pinto (and repeated by him in many rotal sentences along with those noted above; e.g. Dec. 3, 1982, vol. 74, p. 571; d. 27 maii 1983; May 30, 1986; Feb. 6, 1987, vol. 79, p. 34, etc.) seems an over-statement of the matter. According to the opinion put forward here, it is not that the perpetuity or incurableness of the incapacitating condition must be established in order to give an affirmative decision under c. 1095, 3° ; it is rather that the cessation or cure of the condition - diagnosed as incapacitating - must bring into question the juridic value of the diagnosis, and leave uncertainty in the judges' minds as to the basic question whether what had been diagnosed as a true incapacity was in fact a mere difficulty - that could have been overcome at the time of consent (using proper means), as it was in fact overcome later.

14.       These considerations can help to illustrate the point suggested earlier: that the time factor works in differing ways in no. 2 and no 3 of the canon. Whatever one chooses to hold about the requirement or otherwise of permanence in the incapacity dealt with in 1095, 3° , it is clear that an incapacitating lack of discretion can be transient. If sufficient proof is offered of a grave lack of discretion at the time of the marriage, one can conclude that a person was consensually incapable; and this conclusion is in no way weakened by the possibility of the person subsequently acquiring the capacity he or she originally lacked. In fact the time factor here tends in a certain way to favor this possibility, since greater maturity is normally acquired with the passage of time.

            Some other points relevant to our present case can be briefly mentioned.

15.       Immaturity is an ambiguous term, especially for jurisprudential use. Full maturity (which arguably is never acquired in this life) is not necessary for valid consent. "There is no need for an above-average intelligence or for mental health that is free from any defect; there is no need for full and absolute maturity of judgment; there is no need for a capacity that covers every aspect of life, even of married life!" (M.F. Pompedda: Studi di Diritto Matrimoniale Canonico, Giuffré, 1993, p. 488).

            Nor would a slight deviation from the norm of "average" maturity, in a person of marriageable age, be sufficient to show an invalidating lack of discretion of judgment. The deviation would have to be gravely disproportionate from what is normal at that age. That a person is somewhat immature at e.g. the age of 18, must be considered normal; by itself that simple fact would offer no basis for sustaining a plea of invalid consent under c. 1095, § 2. However, if one has only recently reached the canonical age for valid consent, any notable falling short of the minimal maturity which may be considered normal at that age certainly supports a plea of nullity.

16.       Factors which simply mean that the decision to marry was made with some difficulty (normal hesitations or nervousness, a certain opposition - or encouragement - from relatives, etc.) cannot be held to induce the grave lack of discretion spoken of in c. 1095, 2° . However when a person has recently been through some exceptionally stressful experience, and all the more so if it required psychiatric treatment, then it becomes much easier to build up sufficient proof that his or her marital decision was marked by a grave lack of discretion. Clearly it is exceedingly difficult for a very young person, under severe shock, to weigh the implications of marriage. In such circumstances family pressures can intensify the obstacles to sufficient exercise of discretion.

17.       Since consensual incapacity always implies a serious psychic anomaly, present at the time of consent, it is generally difficult to prove such incapacity in the absence of any documented pre-marriage clinical history of medical-psychiatric treatment. On the contrary, when there has been such pre-marriage treatment and it can be documented, or, better still, the doctor under whose care the person has received treatment can give evidence, then obviously strong corroboration may emerge for the Petitioner's plea.

III. The Argument

18.       The undersigned judges, having weighed all the facts of the case, agree that the marriage in question was null because of a grave defect of discretion in the petitioner arising from a totally peculiar and anomalous psychic state present and operative, even if in a transient way, at the moment of the marital consent. The traumatic circumstances preceding the marriage, the effect of medication, and the emotional perturbation deriving from the unexpected pregnancy, combined with the impossibility of even consulting the respondent about the predicament - all of these particular circumstances so perturbed the interworking of the Petitioner's faculties that she could not critically evaluate the essential obligations of marriage and choose them with the requisite internal freedom.

            Furthermore, since we give a negative judgment regarding the grounds of the incapacity, in either party, of assuming the essential obligations of marriage (c. 1095, 3° ), the foregoing juridical considerations concerning the perpetuity of the incapacity of assuming such obligations (in which, as is evident, the incurability of the condition is not proposed as a requisite for the proof of a true incapacity) remain in the field of theory without practical application to the case before us. Matrimonial consent, inasmuch as it is actual consent among those present, conveys all the rights, and accepts all the duties, of the married state from the very moment of the exchange of consent. The validity or invalidity of the marriage is created or not in that moment, nor can it in any way be left in abeyance. Having stated this, let us deal with each of the grounds.

19.       Re total simulation. As regards the grounds of total simulation on the part of the Petitioner, her advocate in first instance wrote: "the evidence to support her "simulation" is very, very weak" (I, 52). Her new advocate "ex officio" in the present instance is in agreement (Brief, p. 3). We too find no adequate proof under this grounds; and we therefore dismiss it negatively.

            The advocate "ex officio" in fact holds the same regarding the grounds of force and fear inflicted on the Petitioner, adding that she thinks it is not necessary to discuss the case in this point (ib.). We feel however that the thesis fear should be briefly considered.

20.       Re force and fear. She states: "I did not choose marriage freely for myself. It was not my decision. It was the decision of the families" (I, 7/9), and later: "We were frightened by the situation we found ourselves in" (18/6).

            Vincent K, stepbrother of the Petitioner, states: "My father put a lot of pressure on them" (27/11-12). Margaret C, asked, "Did anyone actually put pressure on either of them?", responds: "I would say neither of them got a chance to make their decision... It was the general family decision and they went along with it" (37/11).

            Proof of nullity under this grounds is made particularly difficult from the absence of evidence from father of the Petitioner (her mother is dead). Little effort appears to have been made in first or second instance to interrogate him. The attempt to do so in third instance was unsuccessful (III, 10). Another difficulty lies in the absence of clear of consistent evidence regarding aversion (cfr. I, 22/14; 33/14; 36/7; 37/14; 37/15; 42/14).

            We therefore consider that the argument of fear cannot in fact be upheld from an examination of the acts.

21.       Re the incapacity of both parties. Again we must answer negatively to the plea under c. 1095, 3° . Nothing in the evidence hints at any pre-marital incapacity in the Petitioner for assuming/fulfilling the essential obligations of marriage cfr. (13/7; 37/10; 38/18; 42/10; 43/18). The bomb incident (to which we return below) is not shown to have any connection with this grounds. No incapacity is indicated by post-wedding behavior. Vincent K testified: "She is very good with the children. They were caring parents. She cares about them in a very motherly way. He is very generous with them..." (29/20; cf. 38/20; 43/20). Thomas C, a friend of both from childhood, says, "When they got their house, they really tried to make their marriage work" (43/19).

22.       Re a grave defect of discretion in the Petitioner. We are therefore left with the grounds of grave lack of discretion in the Petitioner. Here we do find evidence that she was lacking a minimum of discretion proportionate to her very young age (she was 15 years old when she conceived). Above all it seems evident to us that her decision to marry was deeply conditioned by two very exceptional circumstances.

            Ann, her sister, says: "They were not mature and responsible for their age" (I, 32/9). Thomas C says, "I don't think she was mature enough for marriage at that time. She was still at the school-girl stage" (41/9). Her brother, Vincent: "we are talking about people who were little better than schoolchildren" (26/9). Regarding their concept of marriage, he says, "They might have had some juvenile idea of marriage" (26/6). Ann K, describing them as "two very immature people with a very rushed marriage" (31/3), adds, "It was wrong ever to even suggest marriage" (32/9).

            To these indications that she lacked even the minimum maturity proportionate to her age, two striking features to the case must be added. They can leave us with no doubt that the Petitioner's plea is to be sustained.

23.       One is the fact that within a period of less than a week after her preganancy was discovered, their parents rushed them into a marriage that they had never contemplated. During those six days, moreover, they were not even allowed to meet together or have any discussion about the marriage. There had never been any previous talk between them about getting married. The Petitioner says: "marriage was not in the air, nor was I thinking of marriage... not even till it was suggested. Denis never suggested or asked for marriage" (6/6). The Respondent confirms this: "we never talked of it [marriage]" (13 ex off.). The marriage was settled by their families, and they were given no opportunity to meet or discuss it during the six days while others were making the arrangements. The Petitioner puts it very tersely: "six days [elapsed] between the discovery of the pregnancy and the marriage. Denis's mother and my father did most of the arrangements... In the six days, Denis and I didn't even see each other. We weren't allowed" (6/8; 7/10).

24.       This unusual case is marked by a second important factor which lends no small support to the Petitioner's plea: a factor which suggests that hers is a case of someone who is not just exceptionally immature even for her very young years, but who has been severely unbalanced, at least during the time of the marital consent she gave, by the psychological shock resulting from the terrorist bomb explosion in May 1974 in which she was injured and a co-worker killed (I, 26). This occurred shortly before the pregnancy, and seemed to have had a devastating effect on her personality, at least at that time and for the ensuing months right up to the wedding. The doctor who treated her said she was admitted to hospital "in a state of severe shock", and remained there 11 days. He testifies: "After discharge she suffered marked phobias involving traffic, crowds, loud noises, parked cars and any sort of agitation around her"; she was put on medication, suffered a relapse in October 1974, and "was discharged from attendance at my Psychiatric Clinic in December 1974" (I, 45).

            There seems no reason to disbelieve her brother, Vincent, when he says that "the bombings had a dreadful effect on her" (26/8). This means that she was under severe psychic stress, in attendance on the psychiatrist, and receiving medication, throughout the whole period of the first sex relations between the parties, her conceiving, and the precipitate marriage (7/11).

            We note that, according to her evidence, sex relations between the parties began two years after their first meeting (18/5), in other words, around or shortly after the time she was involved in the bombing incident. In fact it seems that the baby was conceived just one month after the bomb explosion (II, 9/1). We also take note of the evidence that when she discovered she was pregnant, she attempted suicide (I, 32/8; II, 9/2).

25.       Having therefore considered all the aspects of the law and the facts, we Auditors of this Turnus... answer the proposed doubts as follows:

            "IN THE AFFIRMATIVE to the first only", that is:

            THE NULLITY OF THE MARRIAGE HAS 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, November 24, 1994.

            Cormac BURKE, Ponens

            Kenneth E. BOCCAFOLA

            Robertus M. SABLE