cormacburke.me.ke

[English version: Studia canonica 30 (1996), pp. 232-238]

I. The Facts

1.         Giuseppe and Margherita met in 1977 in Turin, where both were studying at the architectural faculty. They became lovers in March 1980 on Giuseppe's graduation; and in September of that year began to live together. When Margherita became pregnant soon after, Giuseppe pressed her to have an abortion but in vain. In these circumstances, they go married in the Turin church of * in March 1981. Although their child was born in July 1981, their life as spouses was short-lived, and marked by disagreements and fights. In April 1982 they separated.

            In Nov. 1989 Giuseppe petitioned the Regional Tribunal of Piedmont for a declaration of nullity of the marriage on the grounds of the exclusion of the "bonum prolis" on his part. A Negative sentence was handed down in Nov. 1990. Then the petitioner appealed to the Milan Tribunal which, after a further instruction of the case, gave an Affirmative decision in Sept. 1993. The Defender of the Bond, in the fulfillment of his duty, appealed to the Roman Rota. Here the petitioner appointed his own Advocate. On being cited, the respondent, while declaring herself against the bond, remitted herself to the justice of the tribunal. No further instruction was requested or carried out. Therefore having received the Advocate's brief and the observations of the Defender of the Bond, we must now reply to the doubt concorded on March 24, 1994: "whether the nullity of this marriage has been established on the grounds of exclusion of offspring by the man".

II. The Law

2.         Man "is naturally 'made for marriage'. And so the conjugal bond, or marriage, is natural" (St. Thomas: Suppl., q. 41, art. 1). "Marriage as proposed by the Church corresponds to the natural understanding which man has of that exclusive, permanent and fruitful union with a member of the other sex to which he is naturally led by the human conjugal instinct" (Sent. of Dec. 12, 1991, coram the undersigned Ponens: R.R.Dec., vol. 83, p. 747; cfr. idem. April 19, 1988, n. 2: vol. 80, p. 251; Dec. 5, 1989, n. 3: vol. 81, p. 744).

3.         The procreative aspect of marriage - the prospect of having children of one's own - corresponds in a particular way to the aspirations of human nature: both to the individual desire of the person to have posterity as a certain perpetuation of one's self, and to the shared desire of a couple in love to perpetuate their love. The conjugal relationship is uniquely exemplified and embodied in a couple's child, the incarnated expression of their union.

            As we have sought to illustrate elsewhere ("La Vérité de l'Amour Matrimonial et la Contraception": Angelicum, LXXI (1994), pp. 259-273), the procreative orientation of sexual intercourse in marriage is in final analysis what justifies its being called the conjugal act, i.e. the most singular corporal expression of conjugal love and union. Similarly, the child that may be conceived of that passing physical union between the spouses becomes not only a unique but also a lasting testimony to their love: its fruit and incarnation. Marital love naturally seeks such fruit and needs such incarnations. Therefore to want to have a child by the person towards whom one is drawn by a marital attraction is a natural consequence of such love.

4.         The "bonum prolis" - procreativity or openness to life - is an essential element of the marital relationship and cannot be excluded from true conjugal consent. Actual procreation, however, is not a property of marriage but one of its ends (c. 1055). Here it is important to note that the absence of offspring in no way invalidates marriage (cf. c. 1084, § 3), so long as the "intentio prolis" (Suppl. q. 49, art. 3) was not excluded from consent. Actual procreation is not a marital right; it is therefore incorrect to speak of a "ius ad prolem". "A child is not something owed to one, but is a gift. The 'supreme gift of marriage' is a human person. A child may not be considered a piece of property, an idea to which an alleged 'right to a child' would lead" (Catechism of the Catholic Church, no. 2378; cf. also Communicationes, IX (1977), p. 375). In the end the child is always a gift of God; a gift that he at times does not choose to give.

5.         Although spouses may at times find themselves constrained to avoid a pregnancy (by licit means), it is normal that they consider this to be a deprivation. An anti-procreation stance on principle is unnatural. When the natural fruit of conjugal love is rejected by means of contraception, the effect (however unconscious) is to undermine the spouses' awareness of the mystery of their sexuality. The loss of the deeper unitive sense of their physical intercourse can result in a lessening of mutual respect between them, and so threaten the growth of their love.

            Contraceptive measures therefore undermine marital love. Contraception empties conjugal intercourse - which, we repeat, should retain (but can lose) its character as the most unique physical expression of that love - precisely of what gives it uniqueness: i.e. the sharing together of procreative power (cf. decis. coram the undersigned Ponens, March 1, 1990, nn. 8-18: R.R.D., vol. 82, pp. 178-182)). Natural marital intercourse expresses a real self-gift and a unique conjugal acceptance of the other. Contraceptive intercourse, by denying both, involves the spouses in a lie. As Pope John Paul II teaches, "Contraception contradicts the truth of conjugal love" (Insegnamenti di Giovanni Paolo II, VI, 2 (1983), p. 563).

6.         There is a natural perception that children should be born into a stable union. In consequence, when having children stands high in people's priorities, marital indissolubility is more readily understood and held in greater regard. Conversely, when (as so often happens in modern western society) having children is disesteemed, or at most regarded as a sort of marital "optional extra" (that may help - or may hinder - a couple's "fulfillment"), indissolubility also tends to be considered negatively or questioningly.

7.         To want to have a child by the person one loves with a marital love is natural. Contrariwise, someone under pressure to marry a person towards whom he or she does not entertain such love, may be strongly tempted to exclude children; also because children constitute an extra bond between even reluctant parents, at the same time as the children themselves tend to suffer more if their parents are not united.

8.         Given the weakness of human nature, a couple in love may have intimate relations before marrying, with a resultant pregnancy. Such an irregular event can produce complex and diverse consequences. Between the parties a spontaneous sense of responsibility easily arises, because a new and unique link - the conceived child - now characterizes their relationship. This may be intensified on the part of one of them if there is an awareness of having led the other into the intimacy. Towards the unborn child itself, there is also a natural sense of responsibility on the part of both, although the woman is always in a more stressful position. In reflecting about possible courses to take before the new situation, factors other than those of personal moral principles may influence their decision: family pressure, public opinion. etc.

9.         Leaving these moral considerations aside, when a couple are truly in love and intend to marry, even an "illegitimate" or "unplanned" pregnancy does not always necessarily or naturally fall into the category of something totally "unwanted", as far as they are concerned. Such a pregnancy can be accepted by them fully and even gladly, though no doubt always tempered by some regrets. It may often have the effect of anticipating the marriage already planned. Such marriages have not begun very well, but do not of necessity end badly.

10.       Recourse to abortion as a means of avoiding the natural fruit of conjugal love has much more detrimental effects still than the use of contraception. This is logical, given the difference between not allowing sexual conjugal love to generate its normal fruit, and killing that fruit if the act of love has in fact produced it. In both cases there is an interaction of "anti-life" and "anti-love" elements; but they are much more powerfully present in the case of abortion. A couple who agree to abort the child they have conceived make it very difficult for loving esteem between them to survive. If just one of the two urges abortion, against the wishes or conscience of the other, he or she is most likely to provoke a significant loss of respect on the part of that other; and this, if it does not prevent the marriage, will probably become a growing source of recrimination later on.

            When a plea of nullity on the grounds of exclusion of offspring is advanced, the pre-marital procuring of the abortion of a child already conceived certainly serves to corroborate the plea.

11.       The question of temporary exclusion of offspring has to be considered carefully. When this temporary exclusion is by mutual agreement between the parties, it does not invalidate a marriage, since it is accompanied by an "intentio prolis" (cf. Suppl., q. 49, art. 3), even if the actualization of this intention is postponed for a time. This decision may not always be wise for the eventual solidity and happiness of the marriage; nevertheless, given the use of proper methods, it can in many cases be an application of "responsible parenthood", as latterly taught by the magisterium. Pope John Paul II has recently written that responsible procreation is also exercised by couples who "maintain an attitude of openness to life, even if, for serious reasons and in respect for the moral law, they choose to avoid a new birth for the time being or indefinitely" (Encyc. Evangelium Vitae, no. 97; cf. Catechism of the Catholic Church, no. 2368).

            However if there is a unilateral exclusion of offspring for an indefinite time (which may become absolute if certain conditions are not verified), then consent is inadequate. This violates the nature of the mutual marital self-gift, and the right of the other party to find a partner open to the possibility of having children. To hold a person - who is able and wants to have children - bound by such an invalid bond would be a grave injustice.

12.       The following elements should converge to constitute juridic proof of exclusion: a) the confession of the person simulating, made at a period which is not to be considered suspect; b) the explanation of the simulation, drawn from the causes both of simulating and of contracting, with due consideration for the particular position of the simulator; c) the confirmation of the simulation, coming from the antecedent, concomitant and subsequent circumstances, and borne out by credible witnesses or trustworthy documents (cfr. c. Pinto, April 9, 1973: R.R.Dec., vol. 65, p. 361)

III. The Argument

13.       The validity of this short-lived "consortium" has been judged diversely by the two preceding sentences. Despite the facts that both parties testify explicitly to the petitioner's pre-marital exclusion of children, that his plea is well supported by witnesses, and that there appears no reason to doubt anyone's credibility, we ourselves have not found it easy to give a definitive judgment in the case.

14.       The petitioner's claim is that because of the pregnancy of the woman with whom he had been living for two months, he found himself precipitated into a marriage ceremony with her, even though there had been no previous mention between them of marriage: "there was absolutely no talk between us about marriage. Certainly it was not on the cards for me" (65). It seems she was very much in love with him, and certainly very keen on marrying. He however was not sure that he really loved her and had doubts in particular about her assertive character; so, for fear that the union would work out badly, he excluded children from his marital consent.

15.       The judicial confession of the simulator. He clearly states that he made a positive act of indefinite exclusion of offspring (though leaving open the possible reconsideration of this decision in the light of how their conjugal life actually worked out): "I made up my mind that we would have no more children. At the most I might later on reconsider my decision if the relationship between me and Margherita turned out well" (16/4: cf. also 2-3; 66-67). We must weigh the different elements that can support or weaken this assertion of his.

16.       Regarding the "causa contrahendi". While the parties (still students at university) were having an affair, he accepted her invitation to live together. He claims however that this decision was never oriented towards marriage, but merely corresponded (at least on his part) to a physical attraction which coincided with the solution of a lodgings problem: "I accepted her invitation [to live together] as a provisional solution which was in fact the only one practical one for me at that moment. As the year in which I graduated was ending, I could no longer live in the university residence... and had no other possible lodgings in Turin" (65).

            Despite their use of contraceptives, she very soon became pregnant and then began to insist on getting married. He resisted this and proposed abortion, but she absolutely rejected the idea. "Margherita began to insist on our getting married... But I did not feel ready for that; so I proposed abortion. She would not listen to the idea" (2). Under pressure also from her father (2; 15/2; 33/in fine; 79/2), he finally accepted the solution of marriage: "I only accepted the idea of marriage at the of January or start of February 1981, when it had become impossible to carry out the abortion permitted by law. For my part I came to this decision because I saw no other possibility" (66/8).

17.       Re the "causa simulandi". What reasons are adduced to justify the exclusion which the petitioner claims to have made? According to him, "I did not want to have any children by Margherita... because I was unsure of my relation with her. I foresaw that our relationship would end up as in fact it did. There was a physical attraction but nothing else. We were so different and also had incompatible characters" (16/6).

            His diffidence about their relationship is confirmed by several witnesses who speak of what they knew already before the wedding. GI asserts that the petitioner, "realized that they had different tastes, and so he asked me if he was right to continue... At one point the girl got pregnant. Giuseppe was bewildered in that situation, and I recall that he kept consulting me because he did not know how to get out of it" (18/2). AA declares: "Giuseppe tried to convince his girl to have an abortion also because he did not feel sure about the steadiness of their relationship" (33/2). And SZ: "Faced with this new situation. Giuseppe did not want to marry the girl because he was not in love with her, but he proposed an abortion. She rejected this solution and insisted on marriage" (79/2).

18.       Re the proof of a positive act of the will. The judicial confession of the petitioner as to the exclusion of the "bonum prolis" seems to find sufficient support from other sources. The respondent and several witnesses testify directly to pre-wedding statements by the petitioner excluding offspring from the marriage. The respondent says: "Giuseppe before the wedding had expressed the intention of excluding the procreation of other children, apart from the one already conceived (but unwanted as far as he was concerned). I recall that he simply wouldn't hear of children, either before or after the marriage" (25/4). "After the marriage Giuseppe spoke of children, but only to exclude them"; "he was irremovable" in this decision (25/6; 25/4).

            PS states: "in that period when Giuseppe discovered the pregnancy and decided to marry against his will... he told me that he would have no more children unless things between them changed in the future..." (38-39/6). His brother, Cosimo, confirms this (83/9), as does SZ (79/3). AA also appears to confirm the point, although in a somewhat confused way: "I believe that he rejected the very idea of having further children. We had an explicit conversation about this" (34/4). The first instance judges, perhaps due to a copyist's error, invert this last phrase: "We had no explicit conversation about this". In the appeal instance however, the judge instructor had the original document of the deposition produced; from it the positive affirmation of the witness is quite clear.

19.       Circumstances. He contrasts his reluctance to marry with her insistence (15/2; 66/6). She admits that the initiative came from her (23-24), and it seems that her father also pressed for the marriage (2; 15/2; 33/in fine; 79/2). In addition to this we note that the petitioner's parents knew nothing of the marriage until the last moment. He says: "in December 1980 my parents were told nothing of the pregnancy or of marriage. Of the marriage they learned only in February 1981 and of the pregnancy only after the wedding" (66/6). The respondent confirms this (23/5).

20.       The petitioner's anti-offspring disposition, at least in relation to marriage with the respondent, is strongly corroborated by his pressing for an abortion. To this fact there is abundant evidence. The respondent states: "Giuseppe proposed abortion to me as a solution to the situation that had come up, but I would not agree because I loved and love children" (23/5). Her mother confirms this: "Giuseppe did not want the child conceived before the wedding; and so he suggested to Margherita to have an abortion. Margherita, with my backing, was decidedly opposed" (29/6); and so do the other witnesses (18/2; 20/2; 33; 38/2; 78/2). In our "In Iure" considerations, we have noted how seeking a pre-matrimonial abortion offers no small corroboration of simulation regarding the "bonum prolis" in the moment of consent.

21.       We also note that he did not visit the respondent when she was in hospital expecting the child, was not present for its birth, and showed complete indifference afterwards regarding its care and education (30/7; 69/19).

22.       Like the other judges we have had to consider an apparently important contradiction between his and her testimony, and try to resolve it in a judicial manner. When the petitioner testified to his pre-matrimonial decision to exclude offspring for an indefinite time, he added: "As far as I recall, I told Margherita nothing about these intentions of mine. It didn't seem right to me to do so; I found it unpleasant to speak to her in that way" (16). While there is a certain qualification in this statement ("As far as I recall..."), it seems to be contradicted by the evidence of the respondent recorded earlier: "I recall that he simply wouldn't hear of children, either before or after the marriage" (25/4).

            Interrogated on this point in second instance, the petitioner offers this explanation: "in saying 'I told Margherita nothing about these intentions of mine', I do not mean my decision not to have other children which I did tell her, but only the reason for this decision of mine, which was that I didn't feel that I really loved her. It is this that I kept from her, but I did tell her I did not mean to have other children" (66-67). His rotal advocate comments: "this is fully reasonable and fits perfectly in with what the petitioner already declared, i.e. 'I found it unpleasant to speak to her in that way'. Indeed, what might be offensive for the woman, who certainly loved him very much, was not the man's decision not to have other children, but the motive of that decision, i.e. the uncertainty of his love for her" (Brief, p. 14). We find this explanation plausible, although not peremptory. It could be added that this apparent discrepancy of statements by the parties serves to strengthen the impression that there is no collusion between them.

23.       In weighing the peculiar circumstances leading up to the marriage the Judges of second instance lay emphasis on her very determined character (93: cf. 30/8; 65 in medio); and no doubt she gives the impression of being a somewhat manipulative person. While the parties say they were using contraceptives (16/6; 25/6), the evidence could suggest that she deliberately neglected precautions in order to get pregnant, and so bring pressure on him to marry. This however cannot be regarded as proved.

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

            "IN THE AFFIRMATIVE", that is,

            "the nullity of the marriage has been proved, in the case before the Court, on the grounds of exclusion of offspring by the man".

            Given in the Tribunal of the Roman Rota, December 15, 1994.

            Cormac BURKE, Ponens

            Kenneth E. BOCCAFOLA

            Egidio TURNATURI