cormacburke.me.ke

[English version: Studia canonica 30 (1996), pp. 221-232]

I. The Facts

1.         When John and Adrienne, after going together for three years, married in August 1957, he was 23 and she was 22. Their married life, from which six children were born, lasted almost thirty years. Deep misunderstandings began to arise between from 1982 on, due above all to the unfaithfulness of the man. They were separated two years later, and civilly divorced in 1987.

            That same year, John petitioned the Tribunal of Washington to declare the marriage null. The issue was joined in January 1988 in these terms: "Is this marriage null and void on the grounds that the Petitioner suffered from a serious lack of due discretion of judgment and/or on the grounds that the Respondent suffered from a serious lack of due discretion of judgment and/or was unable to assume the obligations of marriage?" After a first instance instruction consisting in the evidence of the parties and seven witnesses, along with three medical opinions and an Expert report "ex officio", the one-Judge Tribunal handed down a negative decision in September 1989.

            Appeal having been made, the Tribunal of second instance made a further instruction with evidence from five witnesses and an Expert opinion "super actis". The Respondent refused to give evidence, and was declared absent from the hearing. In November 1990 a decision was given overturning the first sentence.

            The matter then came to the Roman Rota. Free legal representation having been granted as usual to the Petitioner, the concordance of the doubt was delayed due to the silence of the Respondent, even though she was finally cited by edict in the English edition of the "Osservatore Romano". The instruction was gradually completed through the examination of the Petitioner and one witness. Today, having received the Brief of the Advocate for the Petitioner and the Observations of the Defender of the Bond, we now finally reply to the doubt concorded on March 5, 1992: "whether the nullity of the marriage has been established on the grounds of a grave defect of discretion of judgment in each of the parties (can. 1095, 2° ) in third instance, and on the grounds of psychic incapacity in the Respondent (can. 1095, 3° ) in second instance".

II. The Law

2.         According to the Judges who heard the present case in second instance, "two major aspects must be considered when the validity of a marital union is being impugned on the basis of a Lack of Due Discretion" (Acts, II, 121). They express the first of these aspects as some possible grave defect in "the critical faculty and the freedom of the will". This is common doctrine, and we have nothing to add except that, as c. 1095, 2° specifically states, the defect in question must be in regard to the essential rights and duties of marriage. Otherwise it is juridically irrelevant.

3.         However the Judges, claiming to echo rotal jurisprudence, distinguish a second major feature involved in lack of due discretion, namely, "deficiency with respect to an interpersonal relationship, that is, the absence or restricted development of an intrapersonal and an interpersonal integration". They go on to offer the following judicial criterion: "If it is evident that one or other party, or both parties, were seriously deficient in this area during the course of the marriage, of necessity such would also be true at the time of the verbal statement of consent. Hence, it can be concluded that the consent was invalidly placed" (ib.).

            We cannot accept this "post hoc, ergo propter hoc" logic. Leaving aside the question of why the judges choose to advance this view in a case being heard under c. 1095, 2° , and not 1095, 3° , the simple evidence of a deficiency in interpersonal relations during the marriage does not "of necessity" constitute proof that the same defect was present at consent, and less still that it was present as a constitutional disability regarding marriage.

4.         Practically speaking, a petition for a declaration of nullity is always the aftermath of a process of deterioration - leading to collapse - in interpersonal relations between the spouses. The collapse is not, in itself, proof of any original consensual incapacity. If it occurs almost immediately after the start of conjugal life, it can certainly be taken as suggesting the possibility of some psychic anomaly present at consent which, if grave and related to some essential obligation of marriage, could justify a declaration of nullity. However, it would stand as a suggestion or corroboration, but not as proof. The proof must be established; and it must come mainly from sources other than the simple deterioration of the interpersonal relationship.

5.         Obviously the longer the married life lasts, marked by no more than the normal difficulties of any conjugal interpersonal relationship, an eventual collapse in the relationship (and all the more so if it comes rather abruptly) progressively loses its corroborative force regarding the argument of initial incapacity. In the case of a marriage which has gone on for very many years in relative harmony, the very thesis of constitutional consensual incapacity, while it cannot be absolutely ruled out, becomes extremely unlikely.

6.         As striking as the lack of juridic logic just noted in the Appeal Court's reasoning, is the implication that a "fully developed capacity" for an interpersonal relationship (or a "non-restricted" potential to develop such a relationship), is essential to valid consent. Jurisprudence simply does not accept "deficiency" or "limited potential" regarding interpersonal relationship, as criteria by which the validity of marital consent can be determined. Everyone has a potential for relating to others, just as everyone has difficulty or shows some deficiency in establishing and maintaining such relationships, especially when these are close, committed and demanding. Psychologists can debate and propose standards for measuring what is "acceptable" or "ideal" in interpersonal relationships, also in that particular relationship between two persons which is marriage. However, such standards offer no juridic measurement for guiding ecclesiastical courts in decisions related to c. 1095.

            Marriage is essentially an interpersonal affair inasmuch as it is necessarily a relationship between one man and one woman; and its "success" or happiness, or otherwise, is normally the result of the interplay between the personal qualities, talents, virtues and defects of the two. Capacity for valid consent, however, cannot be judged in terms of the likely result of this interplay; nor is there any legal measure by such a judgment could be made.

7.         The law of the Church therefore does not measure matrimonial capacity in interpersonal terms; in terms, that is, of the capacity of one particular person to relate to another particular person. From a christian point of view it is debatable whether any one can truly be said incapable of relating to another. The capacity of relating to everyone is surely a main gift of grace given to each christian, who is told that he must love even his enemies.

            Rotal jurisprudence has never accepted the thesis of "interpersonal incapacity" or "relative incapacity", i.e. that consent can be declared invalid under c. 1095, because a person, able to constitute and maintain a normal marital relationship with other persons, is judged incapable of such a relationship just with the particular person he or she actually married (cf. c. Raad, Apr. 14, 1975 (R.R.Dec., vol. 69, p. 260); c. Di Felice, Nov. 12, 1977 (vol. 69, p. 453); c. Lefebvre, Feb. 4, 1978; c. Agustoni, Feb. 20, 1979; c. Parisella, March 15, 1979; c. Bruno, Feb. 22, 1980 (vol. 72, p. 127); c. Fiore, May 27, 1981 (vol. 73, pp. 314-317); c. Pompedda, Feb. 19, 1982 (vol. 74, p. 90); c. Egan, July 19, 1984 (vol. 76, p. 471); c. Stankiewicz, Oct. 24, 1985, (vol. 77, pp. 448ss); c. Ragni, May 24, 1988, n. 5; c. Colagiovanni, March 5, 1991 (vol. 83, p. 138); c. Civili, March 2, 1993, n. 8; etc.).

8.         Consensual capacity as contemplated by c. 1095 is not of person to person, but of person to marriage. The capacity in question is not related by the canon to the characteristics, temperament or personality of one or other of the parties, but to the essential obligations of marriage considered in themselves. "This capacity is and must be judged not as from subject to subject, but objectively, i.e. in regard to the essential obligations of matrimony" (c. Pompedda, Feb. 19, 1982: R.R.Dec., vol. 74, p. 90)

            "Lack of due discretion and the incapacity for assuming are both referred by c. 1095 to the essential obligations of matrimony. They are to be measured, therefore, in relation to the institution of marriage, and not to the particular spouse whom a person chooses. Some acceptable juridic standards can be established for measuring capacity to appreciate or to assume the "per se" obligations of marriage. None can be established for measuring the capacity of one person to make a wise choice of a particular partner, or to be able to live successful married life with him or her. Tribunals can be reasonably asked to judge person-to-institution capacity since, although the task is certainly delicate, the points which mainly guide their consideration are the constants of human nature and the essentials of the most natural of human institutions; in other words, objective elements provide the principal basis for their judgment. They cannot be reasonably asked to judge person-to-person capacity, for then all the elements involved are subjective" (decis. of the undersigned Ponens, June 13, 1991: R.R. Dec., vol. 83, p. 414).

9.         Decisions concerning consensual capacity cannot be handed down on unsubstantial juridical bases, such as a Tribunal's finding that a particular marriage did or could not reach an "acceptable" level of interpersonal relationship. Such a criterion ignores both the clear tenor of the law and established jurisprudence. The judgment of the Tribunal - always provided that judicial certainty has been attained regarding the presence at consent of a grave psychic anomaly - must hinge not on the "acceptability" of the interpersonal relationship, but on the "essentiality" of the marital rights or obligations affected by the anomaly.

            The wording of c. 1095 makes this quite clear: invalidity of consent arises only when the defect or absence of judgmental, elective or executive capacity relates to the essential rights and obligations of marriage; not therefore if it relates just to those aspects of character (desirable or otherwise) which simply contribute to greater or lesser marital harmony and human integration (thus rendering the interpersonal relationship more or less "acceptable"). "Differences of character, which are natural and personal to each one, can go to such an extreme that incompatibility arises between values, outlook, and behavior in interpersonal relations; this certainly makes these relations more difficult, but not impossible" (c. Colagiovanni, Singaporen. Sentence of March 5, 1991, no. 7).

10.       In the Sentence under appeal the Judges state: "From the very beginning of this marriage each of the parties was lacking in the giving, sharing and caring necessary to establish the Consortium Vitae" (Acts, 132). An ability or facility for "giving, sharing and caring" is certainly important to the happiness of married life. It should be obvious however that there is no way by which a court can judge "how much" giving, sharing and caring is constitutionally necessary so as to possess the capacity for valid matrimonial consent. We are in the pastoral, or perhaps the ascetic-spiritual field of marriage, not in that canonical field which is the competence of ecclesiastical judges and where they must render their specific ecclesial service. The essential obligations of marriage must be expressed in more concrete terms; always remembering, we repeat, that the incapacity to evaluate or assume them must be shown to have its origin in some psychic condition which is gravely anomalous (cf. John Paul II, Address to the Rota, 1987: AAS 79, 1457)

11.       Tribunals have the responsibility to ensure that, as far as possible, the instruction of a case is aimed at casting light on the real legal issues involved. This particularly requires that questions addressed to the parties or witnesses be to the point. It is hard to see the juridic pertinence of questions asked in second instance in the present case, directed to establishing whether husband and wife spent much time alone together (e.g. Acts, 92; cf. 128). Behind these questions there would seem to be a certain supposition that if spouses devote more time to their children than to one another, this can point to a deficient capacity for marital life.

            From a natural viewpoint, marriage and married love - ordered to the procreation-education of children (Gaudium et Spes, 48; 50) - should have the effect of gradually directing the spouses' attention more and more towards their children. This is a process that should ideally involve the two spouses together, as part of that common marital and family endeavor of theirs which can so mature them. Thus the children, as the Second Vatican Council says, "being the supreme gift of marriage, greatly contribute to the good of the parents themselves" (ib. 50). It is true that certain psychologists today advance the theory that children produce a negative effect on spousal "intimacy" (cf. Marriage and Family Review, vol 9, nos. 3-4 (1986), p. 28). Such an opinion would seem to have roots in an individualistic anthropology, and can be subjected to no small criticism from the standpoint of christian married personalism and of pastoral practice. In any case, it offers no criterion for forming a canonical judgment as to capacity for marital consent.

12.       Finally we would note a procedural norm that must be followed in first instance, in fact at the very beginning of a case: the need to consider whether or not the Petitioner's libellus shows a "fumus boni iuris" (a minimum possibility of having some legal basis). "Litigation, as well as consuming time, raises expectations which are not always fulfilled, and often causes further and deep bitterness between the disputing parties. That is why an initial libellus is required, setting forth "the basis for the petitioner's right and at least in general the facts and proofs which will be used to prove what has been alleged" (c. 1504, 2° ). The court must then consider the libellus, to decide if there is in fact a minimum legal basis to the claim, a minimum possibility of its being upheld after formal judicial investigation; if not, the libellus is to be rejected (c. 1505 § 2, 4° ), for it is an abuse if cases are admitted to hearing which are certainly groundless. Concretely, in cases brought under c. 1095, unless the allegations brought forward give some grounds to consider that one may be dealing with a grave defect of discretion regarding some essential right/obligation of marriage (c. 1095, 2° ), which moreover would point to some serious psychic anomaly, present at consent, and not just to slight or moderate pathologies or simple defects of character, then the libellus should not be accepted" (decis. Dublinen. of undersigned Ponens, Oct. 15, 1992, no. 16; cfr. also decis. Armachana, c. Stankiewicz, March 21, 1991, no. 16.).

III. The Argument

13.       Serious inconsistencies, not to say notable irregularities, appear in the proceedings in second instance. In the Decree of July 1, 1990, declaring the Respondent absent from the case, the Judge adds: "Therefore, in accord with c. 1592, the Court finds the Respondent to be morally absent and to have waived absolutely any right to notification of the Final Sentence pursuant to canons 1593.2 [?] and 1614" (II, 70). This is a completely abusive interpretation or at least application of the norm of law since, even if c. 1598, § 1 is invoked (Acts, 101), a party can certainly not thereby be deprived of the right to be notified of the Sentence according to cc. 1614-1615 (cfr. cc. 1593. § 2; 1634, § 2).

            With the date of July 1, 1990 (that is, the same day when the Respondent was declared absent) a Decree of joinder of the issue appears where one reads: "After having properly cited the parties, the Respondent..., the doubt was formulated...: Has the nullity of this marriage been established?" This is on the same page of the Acts (II, 101) as the Decree of the Publication of the Acts and of the Conclusion of the Case. The illogicality of all of this seems to suggest notable negligence.

            The Observations of the Defender of the Bond of second instance constitute a significant violation of the charge entrusted to him in accordance with c. 1432: "the defender of the bond is bound by office to propose and clarify everything which can be reasonably adduced against nullity". In the present case, the Defender simply states that "The Respondent's rights have been protected", without saying a word regarding the violations just indicated. He mentions the Expert opinion ("His testimony argues convincingly for the nullity of the above-named bond") and concludes: "it appears that the grounds of Mutual Lack of Due Discretion have been substantiated" (II, 114). A Defender of the Bond who is absolutely unable to find any argument for the bond, can refrain from comment, but not argue against the bond itself, as he does here.

14.       Turning now to the Sentence appealed to us, we confess to difficulty in following its logic. It concludes that an incapacity for "giving, sharing and caring" was constitutionally present from the moment of consent: "When considering this marriage from beginning to its 30-year end, this Court concludes that from the very beginning of this marriage each of the parties was lacking in the giving, sharing and caring necessary to establish the Consortium Vitae" (132). Supposing this analysis to be juridically sound and cogent, the logical conclusion would be that both parties were incapable of consent under c. 1095, 3° . Nevertheless, the Court's decision is that the Respondent alone labored under an "incapacitas assumendi".

            In our legal considerations we have seen that "giving, sharing and caring" do not offer adequate juridical parameters for judging the validity of marital consent. In any case, even leaving aside the juridic relevance of these qualities or capacities, their absence, from the start of the marriage and over a large part of its duration, does not emerge from the Acts. We feel that this will become quite clear as we develop our analysis.

15.       Re the discretion of the parties:

            a) pre-marriage circumstances. The Petitioner himself is very explicit: "My wife and I met at a dance sponsored by the college I attended. For me, it was love at first sight.... Though overcome by my wife's beauty and being physically attracted to her, apart from kissing, sexual relations were not involved during our dating period. We dated approximately three years before our marriage... We discussed the subject of marriage and decided to wait until after my wife's graduation from college. Our engagement occurred in the fall of my wife's senior year, approximately nine months before our marriage. This was a period of great joy and anticipation" (I, 76).

            The preparation of the couple for marriage was therefore very moral, and also seemed very serious. The Respondent too insists on this: "I felt very well informed about marriage. I was a serious, practical, person and very committed to the Catholic faith. I had as good a judgment as was possible for those days. I certainly thought John was very intelligent, serious, normal. I thought we were both serious and did not do things in an impetuous manner" (I, 81).

            The first instance Judge says that the witnesses "have nothing significant to state" (160). To us they seem rather to confirm the basic normality of the parties at the time of the marriage; as in fact do the witnesses in second instance (II, 34; 37; 42).

            The mother of the Petitioner says that the Respondent was "just an ordinary young girl"; the wedding "was fantastic" (I, 121-122). JC and his wife were friends of both the parties from College times. They went out together and married about the same time. He says that the Petitioner was an "absolutely truthful person" (I, 149). His wife confirms this and says the same of her (154). Their marriage "seemed logical to us" (150; cf. 152/22). Again his wife confirms: they had no reservations but were two normal people (155).

            VN, a witness in second instance, knew them all throughout their marriage: "I thought they were the ideal couple" (II, 37). This witness's wife feels the same, and adds: "I believe that this was a good marriage which failed later" (II, 39/18). DD knew both from before the marriage, and was a close friend of the Respondent: "We were at each other's wedding". Asked, was the Respondent "mature and ready for marriage", she answers: "I think mature and ready for marriage is hard to measure. Adrienne and I both got married at 22 years of age, straight out college... I certainly don't think I was mature and not very ready. Marriage matured me, and so did running a school. I certainly wasn't prepared for that. I think the question should be - Do you think this person knew what the commitment of marriage meant and intended to make and live it? To that question, I would answer - Yes" (II, 47/6).

            b) awareness of the essential obligations of marriage: The Petitioner: "We discussed family size and were of the opinion that as we would not use birth control we would accept God's will in this matter. There was never any doubt about the permanency of marriage... Both families and our friends thought we were well suited and that our marriage should bring us both happiness. There were never any concerns voiced by either side" (I, 10). The Respondent fully confirms this (I, 76). He says he accepted all the properties of marriage. And she?: "Yes, we did talk on many occasions about the family life that we would share together" (III, 15-16).

            c) actual living of married life: The Petitioner states: "Following our marriage in August 1957, and for the next twenty-four years until 1981, we lived a relatively uncomplicated life, devoted to raising six children and pursuing career goals" (I, 11). Then he claims that his wife began to suspect him of adultery, and they gradually separated.

            He insists that it was not only she who was dedicated to the children: "I was entirely involved and interested in their total well-being and everything that evolved around them. So where my time from any work commitments provided, then I would spend that time doing things that were family oriented and for the kids" (II, 93).

            The Respondent, who had had a very good education, asserts that the first twelve years or so of marriage were uncomplicated: "I thought we were growing as a couple in our intimacy and sharing"; then he began to withdrew somewhat, and she, out of worry, tended to do likewise (I, 77-78).

16.       Re the Respondent's competence or capacity of assuming. The nature of the alleged inability is not clear, nor is it clear in the Sentence of the Appeal Court whether it was considered to have been hers only - as was actually decided - or to have been of both.

            He says there was "non-communication", claiming that over the three years of courtship he did not get to know her well: "I did not have a full grasp of her total personality before the marriage". So, since he had doubts, they agreed not to meet for time; but "We did get back together and I believe it was probably on my instigation" (III, 14/5).

            During their married life however, he admits to "communication", also between the two of them: "the majority of vacations - like 95% of them - were family vacations. On several occasions, to fill in the 5%, Adrienne and I took long weekends... on a special event. So we did have some very limited time together, just the two of us" (II, 92).

            Elsewhere he insists on her inability to understand his needs: her "paranoid status... impacted on her ability to reach to me as a person who could be trusted, and to work with me at the mutually satisfactory level to advance our marriage and the welfare of our children. I think that she was just not mentally capable of understanding this need in the marriage relationship... I reacted to this type of treatment perhaps in a less than agreeable fashion and, for my own part, did create an unpleasant atmosphere" (ib. 18/23).

            He further maintains that she "was incapable of trusting me to be faithful to her" (III, 16/17). He insists that this "incapacity" (which in fact seems to be main substance of his allegation) was present from before the marriage. Asked why he was so sure, he simply recalls pre-marriage episodes where, after social occasions, "she would become completely quiet and withdrawn... Subsequent to our marriage, this pattern continued and I believe it was a pattern that came about in her mind as she foresaw in me and believed me to be unfaithful..." He claims that this reveals an abnormal mental state; but he concedes that at marriage "The symptoms weren't obvious. It was not for many years... that [they] became very clear" (ib. 19).

17.       The essentiality of the conjugal obligations whose assumption was made impossible? About the object of the alleged incapacity (hers, or his, or of both?), he simply says: "nothing was right about my ability to perform as a father and husband to suit her particular needs insofar as obtaining appreciation and true understanding from my point of reference. These emotions were never forthcoming from my wife" (III, 20). A main failure of hers was "her quietness towards me... very, very quiet towards me, not indicating anything but a sense of dissatisfaction as to me as a person" (III, 14-15).

            He says that they did work together in the upbringing of their children, but feels that "the drifting apart of our emotional lives" must have had a negative effect on the children. He adds, "for this I feel greatly sorry and definitely responsible"; "Several of my children hold me responsible for the whole difficulty that has befallen our family" (ib. 17; cf. 18/22-23). In effect all he is saying is that at a certain stage after very many years of married life, they could not, or found it extremely difficult to, continue to satisfy each other's emotional needs; or that he at least felt this to be so. This offers no evidence towards original or constitutional incapacity at the moment of consent.

18.       We are amazed that the Appeal Court ignored the very important evidence given by two close relatives of the Petitioner, called by him: his mother and his oldest son. The Petitioner in first instance particularly suggested a more thorough interrogation of his mother, saying: "An astute observer of my wife's difficulties was my mother...; now ninety years old [she] is in excellent health, as mentally astute as she ever was" (I, 103). His mother, reinterrogated in second instance, stated: "I think John was mature enough and ready for marriage"; "I have no reason to believe that Adrienne's upbringing was anything but happy"; "I had every reason to believe that theirs was a normal courtship and engagement"; "each handled his or her responsibilities successfully. He provided well and she seemed to me to be a model mother"; "John first told me about his marriage problems in the early '80s" (II, 42/3; 42/7; 42/8; 43/11; 44/17).

            Meriting equal attention was the evidence of their oldest son, John, born in 1959 and the only one of their children to testify. The second Court quotes, out of context, just one short passage: "My father worked all the time and my mother raised the kids. When the children were grown they discovered they had nothing in common". This latter comment is presented in the Sentence as a statement of fact, whereas it was actually offered by the witness as a possible explanation of a breakdown which he himself found inexplicable.

            The Appeal Judges pass completely over the clear force of the testimony offered by the parties' son: married life between his parents without any discernible problems in individual personality, or in interpersonal relationship: "It is hard for me to believe that my parents are no longer together. I have tried to think back and identify problems that may have existed in my parents' marriage but cannot come up with any specific examples. I cannot remember them arguing or complaining about each other... It would be easier to understand and accept if one of them had a drinking problem or there had been yelling or arguing or physical abuse, but there was none that I am aware of. During my time at home I wasn't aware of one dominating the other... I have remained close to both parents and can't say I have noted a change in their personalities or temperaments" (II, 76). It must be said that this deposition, coming from such a qualified witness and one induced by the Petitioner himself, completely destroys whatever case the Petitioner might have had.

            It was in the face of what seemed an inexplicable divorce, that the witness advanced an hypothesis about why his parents gradually drew apart: "My mother did devote a lot of her time to raising 6 children and my father spent a lot of time at work. This lifestyle could have caused them to drift apart without knowing it, and when all the kids were grown and on their own they found they had nothing in common" (ib.). The hypothesis may or may not be accurate; it is certainly not a statement of fact such as the Second Court would lead one to believe.

19.       Expert opinions. One is left wondering at the psychological report "super actis" entered in first instance. Rev. JS, "ex officio" Expert, after stating that the Acts appear "outwardly contradictory, but very understandable given the pathology of both parties", holds that "both parties were immature and irresponsible emotionally at the time of marriage and neither could use discretion of judgment when they married. I believe the petitioner was suffering from an obsessive-compulsive personality disorder which along with relational immaturity, prevented him from using judgment when he entered the marriage... The respondent displays major disturbances in thought patterns characterized by fragmented and bizarre thinking... She has a poor sense of self, lacking individuality and self direction... It is my opinion that the respondent was/is suffering from paranoid schizophrenia and that this orientation makes it impossible to enter into a relationship of trust, dedication and concern for another person, sharing interests and goals" (I, 99-100).

            To anyone reading the Acts, it is obvious that this report is merely assertive, with no demonstrative value. In the Acts one does not find (nor does the Expert cite) facts to justify such radical assertions about the psychic condition of the parties at the time of the wedding, nor to indicate the existence of any serious psychic disorder in either one.

20.       The peritia (also "super actis") given by Dr. LS in second instance, is as remarkable for the assurance of its general judgments, as for the tentative quality of anything approaching a clear diagnosis of any grave anomaly. He makes no specific references to the Acts (page and number), as ought always to be required of an Expert "super actis". The Judges approvingly quote the opinion (given by the Defender of the Bond!) that "critical new evidence has come to light in the testimony of Dr. LS [whose] remarks lend conclusive support to those periti who argued for the nullity of this union during the First Instance" (II, 129). They use Dr. S.'s report, but nowhere subject it to any critical analysis.

21.       The expert, who appears to be a retired Professor of Psychiatry, asserts confidently that the Petitioner's approach to marriage was totally defective: "His decision [to marry] was not based on any understanding of who she was or what made her behave as she did. He was incapable of understanding or sharing her desires or needs" [this is in no way borne out by Acts]; "he based his future plans on some inner pressures which overrode his doubts and uncertainties... There was minimal discussion of marriage and its responsibilities and emotional requirements" (II, 58).

            The Expert does not explain how he justifies these assertions in view of the statements of the Petitioner: "we discussed the subject of marriage and decided to wait until after my wife's graduation from college" (I, 76); "We discussed family size and were of the opinion that as we would not use birth control we would accept God's will in this matter. There was never any doubt about the permanency of marriage" (I, 10) [cf. in third instance: "Yes, we did talk on many occasions about the family life that we would share together": III, 16/18]; statements confirmed by the Respondent who, when asked, "Before the marriage did you talk to each other about what the future would be like and what your expectations were?", replied: "Yes, Father. All of the time" (I, 76/9).

22.       The Expert continues: "The petitioner was clearly preoccupied with his studies... Career needs were primary and his interest in marriage and his partner's needs came after that. These obsessional qualities were already manifest prior to his marriage..." (58). "I would offer the diagnosis that the petitioner has and has had a moderately severe obsessional disorder" (60). With regard to the respondent, he says, "I can suggest a more severe personality disorder at the time of the marriage which deteriorated to schizophrenia"; here however he at least adds: "but this is speculation" (II, 60).

            The Expert sums up: "As I evaluate the total picture and based on my fifty years of experience with the personality problem as well as my work with the Tribunal, it is my opinion that both parties were suffering from an immaturity related to the obsessive-compulsive personality at the time of the marriage" (ib.). Without questioning the fact of the Petitioner's interest - and perhaps "obsession" - regarding his studies and professional work, we are left in wonder that this can be offered (and even more that it can be accepted by a Court) as a diagnosis of a severe disorder sufficient to provoke an invalidating defect of discretion of judgment (in both parties!).

23.       In passing we confess that we are at a loss to understand the Expert's assertion that their pre-marital relationship was "proper and formal and devoid of passion" (II, 58). The Expert would seem either to have read the Acts so carelessly as not to note the Petitioner's statement, "Though overcome by my wife's beauty and being physically attracted to her, apart from kissing, sexual relations were not involved during our dating period" (I, 76), or else to hold that a lack of "passion" is shown by the person who, despite physical attraction, manages to refrain from pre-marital sexual relations.

24.       As we close this long process, we could add that this seems to be one of those cases where the Petitioner's plea, as presented in his libellus, appeared to have so little basis to it that it probably should not have been accepted in the first place (cc. 1505, § 2, 4° ; 1677, § 1).

25.       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 any of the grounds alleged".

......

            Given in the Tribunal of the Roman Rota, November 10, 1994

            Cormac BURKE, Ponens

            Kenneth E. BOCCAFOLA

            Egidio TURNATURI