cormacburke.me.ke

[English version: Studia canonica 32 (1998), pp. 239-243]

I. The Facts

1.         Five years after their first meeting, followed by an acquaintance and engagement marked by a very harmonious relationship, the parties in this case married in April 1975. She was then nineteen years old, he a year older. Despite the absence of children due to medical difficulties on her part, their married life for at least ten years was serene and happy. Then he got involved with another women, and after two years (i.e. in 1987) left his wife. This was an immense blow to her; in her sorrow she did everything possible to bring about a reconciliation; but to no effect.

            In Nov. 1989 she petitioned the Toronto Tribunal for a declaration of nullity, "because of my husband's inability to assume the obligations of marriage". The joinder of the issue was made however on the grounds of a grave lack of discretion on the part of both.

            The instruction consisted in the interrogation of the parties and witnesses. The Acts contain the report of a psychologist who after the separation in 1989 saw the petitioner, "because of depression". An affirmative decision was handed donw in Feb. 1991 on the grounds of grave lack of discretion in both parties. The case was appealed to the Canadian National Appeal Tribunal. It was admitted to ordinary examination and, without any further instruction, a negative decision on all grounds was given in June 1991.

            The case was therefore sent to the Roman Rota, where gratuitous legal representation was granted to the petitioner. No further instruction was requested; and having received the Advocate's Brief and the Animadversions of the Defender of the Bond, we must now reply to the doubt concorded on Oct. 12, 1995: "whether the nullity of the marriage has been proved because of a grave lack of discretion of judgment in both parties regarding the essential rights and duties of marriage".

II. The Law

2.         We take note of a central phrase at the base of the affirmative sentence of first instance: "we see that we have two people going into marriage lacking an appropriate understanding of marriage and consequently incapable of assuming its responsibilities" (70). Prescinding from the confusion possibly present in this statement between no. 2 ad no. 3 of c. 1095, we would point out that the expression "appropriate understanding" is not an adequate way to refer to the grave lack of discretion regarding the essential rights/obligations of marriage which can cause consensual incapacity under no. 2 of c. 1095. The clear wording of the canon makes it evident that consensual incapacity can be declared only if two fundamental requirements are fulfilled: "In order to demonstrate the nullity of a marriage under this provision, two things above all must be established: a) the gravity of the anomalous defect of discretion; b) the essentiality of the marital obligations whose appreciation this condition impeded" (decis. of Nov. 7, 1991, coram the undersigned: RRD, vol. 83, p. 707).

3.         Another observation of the first sentence merits some comment. "In the marriage the petitioner was very dependent on the respondent, thus displaying a lack of maturity. Her manner caused the respondent to feel confined and unable to be free to be himself. She looked after his physical needs well, but did not respond well on an emotional level. This lack of emotional response on both parties prevented any kind of deep sharing, communication, or in-depth growth in love" (Acts, 71). Whatever relevance this might possibly have to c. 1095,3, it has none to c. 1095,2. Besides, one cannot allow the presupposition that a failure to achieve a certain conjugal harmony proves an incapacity to achieve it; nor is it acceptable to assume that the actual achievement of a certain degree of emotional integration or interaction between the parties is an essential obligation of marital life. The difficulties of specifying what that degree is, or how it can be juridically measured by a court of law, are obvious.

4.         We made some observations elsewhere about the suggestion that psychic or psychological "dependence" may indicate incapacity for marital consent. Following theories which see "autonomy" or "self-sufficiency" as requisite for human maturity, some psychologists might maintain that independence with regard to one's spouse is an essential part of discretion of judgment, or even an essential obligation of the marital relationship. This seem totally unacceptable within the framework of christian anthropology, where the whole concept of "mutual help" in marriage rather suggests that a capacity for reciprocal dependence, or inter-dependence, is called for in those marrying. Some psychologists might indeed regard a tendency to unilateral dependence in a negative light, but would any jurist maintain that it can in justice he considered an incapacitating factor for forming a conjugal union? A husband or wife whose partner is afflicted with this disorder might well like him or her to show more independent initiative; yet others could indeed be happy to have a submissive spouse. In the former case, one can admit that the defect makes married life somewhat more difficult. But on what anthropological or juridic grounds can one say that it generates incapacity for consent? (cf. sent. of March 3, 1994, no. 17.).

III. The Argument

5.         The first sentence states: "The principals met and began dating at ages 15 and 16. The courtship continued for four years. Some witnesses feel they should have dated others before deciding to marry. Their personalities are seen as being quiet, shy and introverted. Hence the courtship was happy, loving and void of conflict. To them marriage seemed to be the next step in this relationship. Neither had experienced life enough to make a mature decision to marry. Marriage preparation was superficial and the petitioner had an idealistic concept of married life. Both entered marriage at a rather young age, being still somewhat immature" (70). It is scarcely necessary to point out that nothing stated or assumed here offers any proof of a grave lack of discretion.

6.         We have little to add to the pertinent observations of the second instance sentence: "we cannot find in the Acts of this case any serious sign of a defective development of practical judgment in these two parties. Both had a good, solid Catholic background in close-knit and loving families. They grew up free of any traumatic experiences. We cannot find in any of them any serious flaw of characters. They went through a five years normal courtship. They were 20 and 21 at their marriage. They felt no pressure whatever, no pregnancy. no nothing. They had a wonderful wedding followed by a very normal and happy honeymoon, no sex difficulties ever. Then follows a good ten years of happy married life. Then the husband let himself be caught in an affair with the wife of a friend and it is the end of the marriage" (77).

            We note further that neither party accuses the other of a lack of discretion (rather the opposite), or even of being a bad husband or wife (again thr opposite). The main thing the acts reveal is that he finally felt he could not stand her over-dependent (and at the same time perhaps somewhat possessive) nature.

7.         As the appeal court indicates, the first sentence "is full of words which indicate a lack of firm conviction - or a lack of firm facts: 'rather young'... 'somewhat immature'... quite likely' ... 'can be assumed'..., etc. It speaks of a 'loveless relationship' and of 'a long time of unhappiness' which is squarely contradicted by the Acts" (78). Once again we agree with these views and this assessment.

            Really, as the petitioner herself admits, "During the five year courtship we got along very well. In marriage we also got along well" (2). The respondent confirms this: "We had a very close and very loving relationship" (11). According to the petitioner's sister, their engagement period "was a happy and loving and mature relationship" (27/8); which her brother also confirms (44/2; 47/19).

            On the wedding day, nothing unusual took place; rather. "It was a very large wedding and everything went extremely well... We were both very happy during the honeymoon" (10). Married life together progressed happily for many years: "Even on our 10th wedding anniversary when we went out for dinner to celebrate, I said to Jim that I felt as though I was still on my honeymoon" (12/20).

            Only over "the last six months, I noticed that Jim was different then. He wasn't nearly as attentive to me" (12). The breakup of this marriage finds its explanation not in any grave lack of discretion of judgment in the parites, nor in their incapacity for assuming the obligations of marriage, but in the adulterous relationship entered on by the man, which is fully demonstrated in the Acts (7). There is nothing surprising in the fact that the petitioner, after a serene engagement, after a happy married life over twelve years, fell into a depression when she learned that the man, whom she deeply love, was having an affair with another woman? Dr. RD states: "Her depression started soon after the husband left" (62).

8.         The expert continues: "She blamed herself for the failure of her marriage... She has a passive personality characterized by low self esteem and unassertiveness. She believes that she is in this world to serve her husband. That her role consists of being there for her husband, to cook for him, do his laundry, etc." (62-63). The first instance judges conclude: "The medical report states that the petitioner... saw herself in a role of servitude and not in a marital role of mutual giving and receiving. With this lack of mutual sharing on an emotional level, the principals simply could not bind in the marriage" (72). Whatever psychological assessment is to be made of her "unassertiveness" or "dependence", these personality traits serve to prove nothing about her consensual incapacity either under c. 1095 2° or c. 1095, 3° (cfr. Sentence coram undersigned Ponens, Nov. 5, 1992, no. 16: RRD, vol. 84, pp. 527-528).

9.         The petitioner's relatives are positive that both parties were mature, responsible and prepared for marriage (27/5; 28/15; 38/13; 46/15; 50/36-37; 50/42; 55; 57/17). Until his abandonment of the house, he was considered by everyone to be a good husband (41/32).

10.       The Appeal Court (in contrast with that of first instance) quotes words of Pope John Paul II to the Rota in 1987: "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... An argument for real incapacity can be entertained only in the presence of a serious form of anomaly" (AAS 79 1457); words which seem wholly to the point in the present case.

11.       It appears beyond doubt that the "dependent-possessive" character of the petitioner became in the end a source of irritation for the husband. However her condition in no way represented an insuperable difficulty. He could have accepted this defect of hers; or she herself through wise counselling could have gradually improved. We note that the respondent himself give a qualified judgment on her "dependent" nature: "Friendly, caring person. Needed affection, needed someone to lean on, someone to look after her. Yes, dependent im some ways and in other ways independent, depending on what it was. Emotionally dependent. At work a fairly independent personality" (20/25).

12.       The Appeal Judges rightly affirm: "This is a very sad case given the faith, honesty, sincerity of the Petitioner. Her evidence is pathetic... she is not responsible for what happened to her... she still loves this man and would take him back any time... but this is not possible". Quoting her words, "My faith means so much to me... As part of my healing, I seek this annulment", they add: "we do hope and pray that her Pastor will find the words and a way to show this poor lady God's mercy and love" (79).

            We too make this prayer our own. At the same time, we must add that to accept her petition of nullity does not appear as a reflection of genuine pastoral spirit. What she needed pastorally was not encouragement to seek an anulment, but different help and advice. Apparently some priests did try to help her in this sense, for her aunt says, "she went to several priests to talk about annulments, and they said no way, that she would have to pray that he would come back" (60/27). We note that, although she is not thinking of marrying again (she still loves her husband), she seems to have the impression that without an annulment she is not part of the Church community: "I've asked for this annulment as part of my healing. I've attended a 'New Beginnings' week-end... I want to get on with my life and I desperately need to be a part of my Church community" (8). It would be very wrong if anyone gave her the impression that because of her marriage breakdown she is excluded from the fullest participation in the Church community. God has permitted a heavy cross to be laid on her, with no fault of hers. The wound that this has caused in her life can be "healed", not by trying to find a way around God's will, but by her being helped to accept - as she seems undoubtedly to have the faith to do - her special christian vocation as a witness to fidelity to the marriage bond, even if her partner has not been faithful. Many people today need to be reminded frequently by their pastors of the particular reward that awaits those who bear such witness (cf. Familiaris Consortio, no. 83c).

13.       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 put forward".

            .....

            Given in the Tribunal of the Roman Rota, December 14, 1995.

            Cormac BURKE, Ponens

            Kenneth E. BOCCAFOLA

            Daniel FALTIN