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II. The Law

2.         Discretion and prudence. Both first and second judgements in the case before us work from approximately the same concept of the nature of the discretion of judgment needed for valid matrimonial consent. They expound ideas which, despite broad references (made without specific quotations) to certain pre-Code rotal sentences, are not accepted in established jurisprudence. Both courts invoke a doctoral thesis (Walden University, 1981) which purports to relate canonical discretion with the virtue of prudence as analysed by St. Thomas. Among the elements of discretion one would therefore include: Memoria ["Has the person had enough time and experience of past events to know how things work out?"]; Docilitas ["Has the person been receptive to the advice of older, more experienced people, seeking their knowlege frequently, respectfully and humbly?"]; Solertia ["Has the person shown a skill in making a quick assessment of a situation, shrewdly figuring out what would be best to do?"]; Providentia ["Does the person have the capacity to look ahead, to foresee how his action will affect his future, to act in such a way as to attain a future goal?"], etc. It is from this basis that the second instance judges seek to resolve the question before them: "what can be said about the Petitioner's decision to consent to marriage? Was the decision made prudently with insight and foresight? Was it truly an actus humanus or was it rather an actus hominis?" (Acts, 189-191).

            But with this a totally new notion of discretion would be introduced. Juridic discretion is not synonymous with moral prudence. Even if one sought to link the two (as done in the aforementioned thesis), it would have to be borne in mind that St. Thomas (cf. II-II, q. 49) lists the elements that make up perfect prudence, whereas the discretion needed for valid marital consent is not perfect discretion, but simple and normal discretion.

3.         Canonical discretion as contemplated in c. 1095, 2 calls for sufficient critical grasp of the essentials of what one is choosing, in such a way that one's matrimonial choice can be regarded as proportionate and free. Discretion so considered is not the same as prudence in one's marital choice (cf. decis. coram the undersigned of July 18, 1991, no. 10-12: Studia canonica 26 (1992) 244-255*). A free and valid marital choice can be prudent or imprudent - a totally different issue, not of itself relevant under c. 1095.

4.         Neither is discretion the same as disinterestedess in choice (calculation can show definite discretion). Discretion relates to a person's understanding of marriage, not to the reasons why he or she marries. Moreover, the wording of the canon makes it clear that discretion is to be measured in relationship to marriage in its essentials, not to the particular person being married.

5.         "Communication". Whoever equates discretion and prudence, easily posits certain requirements for valid consent. The second instance Judges in this case base their affirmative decision partly on the inadequate "communication" or mutual knowledge between the parties during their engagement. They lay down, apparently as a juridic principle: "We must remember that the purpose of courtship in which prospective marriage partners keep company with each other, is to learn each other's ways and to gather experience with which to judge the suitability of marriage with each other. This knowledge normally cannot be gained in a few weeks or even a very few months. The human personality becomes known in its true nature only gradually, through prolonged and close interaction in diverse circumstances and stresses" (Acts, 185). Such a principle would in practice make brevity of courtship sufficient proof in itself that adequate discretion was lacking at consent!

6.         Marrying for the "right" reasons? Apart from cases of simulation and deceit, the validity of consent depends not on the "rightness" or "correctness" of the motives inspiring the matrimonial decision, but on the adequacy of the person's psychic faculties to grasp the essential nature of marriage, and/or to undertake its essential obligations.

            It would be ideal if each person's marital consent - the "sese tradere et acceptare" of c. 1057, 2 - coresponded both to a wholly generous gift of self, not marked by any calculating or egoistic motive, as well as to an unhesitating acceptance of the other, based on accurate estimation of his or her character and defects, including a prudent awareness of the difficulties likely to arise between the couple because of differences in outlook and personality. Christian formation, marriage preparation courses, advice from parents and friends, etc. can seek to induce such ideal consent in both parties; but in practice it is seldom if ever present. In the vast majority of cases, marital consent is marked both by the presence of some self-centered concerns, as well as by a clear tendency to play down future difficulties. The standards which the Church uses in judging consensual capacity must necessarily be realistic and minimal. It cannot set "ideal" or even "superior" standards. Marriage is not for the élite; and therefore capacity for marriage is commonly presumed to be possessed by all persons, while incapacity must corespond to some exceptional circumstance.

            In making or accepting a marital offer, a person's decision may be influenced, even greatly, by considerations regarding social position or financial status, by the desire to end over-dependence on one's family of origin and to start a family of one's own, by the purpose of providing a home for the child conceived by the other party, by the fear of never getting another offer of marriage, etc. Such motives show calculation and therefore reflection; they offer no proof of a lack of critical understanding of the essential obligations of marriage.

7.         Psychological perception of the other party. Two people in love are not in a good position to adequately assess the difficulties which character defects or contrasting personalities may give rise to in eventual married life together. One can maintain, if one wishes, that the romantic love which normally accompanies the decision to marry is "immature", in terms of such psychological assessment. But that is normal; being in the nature of things, it has therefore no special relevance for the purposes of c. 1095.

8.         Previous close relationship. The appeal court based its affirmative decision on another factor; the effect on marital consent of the recent collapse of a previous sentimental relationship. They offer a general analysis of this phenomenon in a passage that calls for some brief comment. "In the experience of this Court, a person who has recently experienced the loss of a deeply significant relationship passes through a series of predictable emotional phases including emptiness, anxiety, anger, ambivalence, and the like. These emotional phases tend, even unconsciously, to control the person's behavior and decisions for many months" (186). The validity of this last statement would be questioned by not a few psychologists. Judges would not seem to be acting with due responsibility when they enunciate - as having juridic value - principles which pertain more particularly to another science, without at the same time offering sufficient validation for them.

            The Judges continue: "When someone decides to marry within a few months after such a loss, the Court expects that person's deliberative process to be severely lacking in objective judgment regarding the suitability of the new union and his or her real desire for it" (ib.). The Judges seem here to be applying the unsupported psychological principle which they have just enunciated, in order to create an apparently legal presumption for themselves; we find both procedure and presumption inadmissible.

            They go on: "Instead, the decision is more probably being made out of the psyche's quest for emotional assurance and healing" (ib.). The Judges apparently consider that there is something radically defective in the motive for marrying which they read into the case. This is not evident. In any case, it has nothing to do with the question of due discretion of judgment.

9.         "Integration" and the marital communion of life. Another assertion in the appeal sentence deserves notice. "If from the life history of the future spouse, in the judgment of experts, it is established that already before the wedding there existed a serious deficiency in intrapersonal and interpersonal integration, that person must be considered incapable of correctly understanding the nature of the communion of life itself" (188). The psychological concept of "intrapersonal and interpersonal integration" would have to be made clearer, and the parameters used to measure its attainment or deficiency better explicated and shown to accord with xtn anthropology, before one could legitimately seek to establish, as the judges do here, a mandatory juridic conclusion drawn from such an hypothesis.

10.       The negative first instance sentence in the present case also states a principle which we find unacceptable. Asserting that jurisprudence debates "the degree of perfection which that [marital] commitment must achieve in render to render a marriage valid..." (88; cf. 100), it continues: "The diminution of the critical evaluative faculty need not be great in order to be grave" (91). This is equivalent to saying that "a slight defect of discretion can be grave". From such a contradictory statement no argument relevant to c. 1095 can be built up.

III. The Argument

            The case is made more difficult by the absence of the respondent. Cited without effect before, she informed Denver in this instance that "she feels she has done everything possible in this case and feels that this marriage is valid in the eyes of God", and would not cooperate further (Add. Summ. Alt. 2).

            As we have noted in our «In Iure» considerations, both first and second judgements work from a defective notion of the discretion needed for valid consent. Let us transcribe the entire response which the second court gives to the question: "what can be said about the Petitioner's decision to consent to marriage? Was the decision made prudently with insight and foresight? Was it truly an actus humanus or was it rather an actus hominis?" (Acts, 191).

            "It must be remembered that the Petitioner was twenty-one years old, had not been emancipated from the parental home and was having problems with his "domineering" mother. Although there is no sign that he came from a dysfunctional family, the Petitioner was still struggling toward a stable and secure sense of self and toward internal freedom to make and assert decisions in a healthy, stable manner. Here, then, is seen a defect in memoria. He did not have enough time and experience of past events to know how things worked out. To act prudently, one must have acquired many memories, for what happens in the majority of cases is the best guide to what will happen when one acts a certain way. An intellectual virtue such as Prudence is produced and increased by time and experience; frequent meditation is necessary to remember what we have experienced. The Petitioner's motivation for entering marriage was primarily to escape the "clutches" of a domineering mother. Here is also seen a defect in docilitas. The Petitioner was not receptive to the advice of his "older" and experienced married co-workers. We learn from three witnesses that they tried to "warn" the Petitioner of his "hasty" decision to enter marriage. Here is also seen a defect in providentia. At the time of consent the Petitioner did not have the capacity to look ahead to foresee how his actions would affect his future. It was common knowledge that the Petitioner had been exposed to immature and selfish behavior on the part of the Respondent and failed to address these actions with her.

            Providence means looking ahead, arranging present actions so they will attain the desired end. St. Thomas regarded this foresight as the most principal part of prudence, for prudence is impossible without rectitude of counsel, of judgement and of command. Here also is seen the quality of inconsideratio. The Petitioner should have given attentive thought to the many arguments and "fights" during courtship. St. Thomas defined consideratio as the actum intellectus veritatem rei intuentis, the act of the intellect giving attention to the truth of some matter. Lack of consideration is a defect of practical judgment caused by failure to attendere, to give attention to the things on which right judgment should be based. Neglect to give thoughtful attention to practical principles causes the seventh step to be defective (the practical judgment of the most suitable means to an end).

            Thus in answer to the proposed doubt whether proof of the nullity of the marriage is had on the ground of Lack of Due Discretion, in accord with Canon 1095, §2, on the part of the Petitioner, we answer in the AFFIRMATIVE" (ib. 191-192).

            We find this whole discourse inadequate and unacceptable from a juridic point of view.

            The courts of first and second instance appear to differ substantially in their evaluation of the evidence given. The single judge holds that 3 of the 4 witnesses, including the petitioner's mother & brother, do not sufficiently corroborate his claim; and the Appeal Tribunal agrees. The first instance judge regards as suspect the evidence of one other wtn, Frank R.; the Appl Court disagrees (Acts, 101; 182-183). In our view, his mother and his brother, the only members of his family to testify, not only "add no substantiation to the allegations presented by the Petitioner", as the first judge says (101), but give evidence that tells very much against the grounds of grave lack of discretion. Elizabeth Spring, his mother states, "No unusual behavior noticed" in either, before or after the wedding (49); which his brother confirms (57). When his mother is further asked, "were both parties ready and mature enough to get married when they did?", she replies, "In our opinion - yes" (49). She and his brother, asked if the couple had problems during married life, reply: "We were not aware of any problems until their separation"; and they have no explanation for the breakup (50; 58).

            In second instance, the Petitioner named 6 new wtns, none of them relatives. The Appeal Judges say these are "corroborative" (183). None of them were at the wedding however, and most never even met her. They simply collaborate his claims that he married because he wanted to get out of his parents' home (130; 137; 142, 150, 156), and that his decision to marry was somewhat quickly made (130; 137, 157). All of them, like him, hold that his having married "for wrong reasons", shows him to be immature (131; 137, 143, 151, 161). As we have seen in In Iure, none of this proves a grave lack of discretion in regard to essential obligations.

            The petitioner himself states that the years of his upbring were happy and free from any noteworthy difficulties. "My overall opinion of my childhood and adolescent years was good. I know of no particular events or problems in either instance" (8/2). Asked whether there was any physical or psychic imbalance in either party before or at the time of the marriiage, he replies: "There was no physical or emotional imbalance by either party" (24/1). The second judges themselve declare, "there is no signs that he came from a dysfunctional family" (191).

Marrying for the "wrong" reasons...

            His claim, as he seeks to present it in the present instance, is really no more than that his consent was immaturely or iresponsibly given: "It was not well thought out by myself. It was immature and iresponsible in that I failed to get married for the correct reasons. I was not truly in love, and I merely wanted to use marriage as a plan to escape from my unhappiness. No thought was given to the seriousness of marriage. It was more of a marriage of convenience. In my way of thinking, this was very immature and iresponsible on my part" (ASA 7). "I in no way at all understood the seriousness of the marriage institution... I did not see marriage necessarily had a commitment, and I was merely using it to change a part of my life" (ASA 6; cf 7/4.1-2).

            This is in direct contradiction with what he said in first instance: "No, the pressure did not prevent me from considering the real implications of married life and its responsibilities or I wouldn't have gotten married" (14): "Yes, we both went into the marriage with the understanding that it was a life-long commitment" (18). He married with no intention against having children (20; 22), and accepting fidelity (23). In third instance, he asserts he did fulfill his conjugal responsibilities (ASA, 8/6).

            Several witnesses too propose the principle according to which all those who marry for "the wrong" reasons, are immature. Sic, William M: "Bill was getting married for wrong reasons, so therefore I couldn't call him mature" (137). Betty Chyko: "I knew he was entering marriage for the wrong reasons, that was to get out of the house, and to keep pace with his friends" (143). Robert N saw three motives for his marrying: "(1) to leave home; (2) be part of the group; and (3) not look like a complete fool by calling it off" (151).

            Influence of "dominating" mother? This connects with the tensions reportedly resulting from the dominating character of his mother. The petitioner asserts: "My mother was very much opposed to the marriage. She had even refused to attend the wedding, and finally gave in at the last minute" (11/11). In the present instance, he insists more still on this: "There was great tension between my mother and myself during the engagement time. She was in no way encouraging and she tried to change my mind. I resisted more and more, as I could see that by marrying, I would then be away from her and her dominant personality" (ASA 5). Nothing here indicates a submission, that might suggest he was deprived of f'd - just the opposite. He himself adds: "I honestly have to say that I am argumentative and somewhat short tempered. I possess a dominant personality, and sometimes will challenge a person on a thought or idea rather than letting it go" (ib)". His brother, in contrast, so he says, "has not been able to break away from her" (ib.).

            His mother and brother, cited again this instance, refused to give evidence. The petitioner wished to introduce the evidence of two other witnesses, but was unable to locate them (ASA 3).

            The second instance judges find a grave lack of discretion shown by "the desire to get away from a home with a domineering mother and entering into marriage after a short courtship and on-the-rebound from a serious relationship that was abruptly ended" (180). We should make a brief comment on these various reasons for their affirmative decision.

            - "Pressure": "We learn from the Petitioner that he had not been emancipated from the parental home and had not been very happy at home... due to his 'domineering' mother" (who opposed the marriage). "This is substantiated by five witnesses who were aware of his "estranged" relationship with his mother" (184). But the fact that he moved out of his parents' home sufficiently show his independence of his mother; besides, as we have noted, he specifically stated that the pressure which - he feels - surrounded his marital decision did not prevent him from appreciating the real implications and responsibilities of conjugal life (14).

            - "Engagement fraught with lack of communication". The judges hold that in this courtship, "the principals failed to work together in exploring the suitability of marriage with each other which ultimately led to a marital decision based on a very deficient knowledge of each other" (185). As indicated in our «In Iure» considerations, no useful juridic conclusion can be drawn from these premises.

            "Doubts" and "Rebound from a serious relationship" where he had been jilted. "Hence the Court can expect that the Petitioner was going through an 'emotional phase' as a result of the recent breakdown of that relationship" (186). In our theoretical reflections, we have commented on the juridic non-relevance of such an argument, even if corroborated. One must note that in this case the judges are taking as established the impression of one single witness (the very last called in second instance: 156), an impression which is not echoed by anyone else.

            No "peritia" was effected in previous instances. The petitioner's advocate ex officio having asked for one in the present instance, the Ponens decreed that the granting of this request should depend on the advocate's being able to find some indication in the Acts which could at least minimally suggest point to a serious anomaly in the petitioner. This the advocate was unable to do.

            This 16 year-old marriage seems to have marked by ordinary difficulties, which only in the end were compounded by infidelity. Both his mother and brother say, "We were not aware of any problems until their separation"; and cannot explain the breakup (50; 58). HP says that he "was not aware of any problems before the child was born... Afterwards, Gail became very lazy especially about housekeeping" (54). We sadly feel that our Defender of the Bond is correct: "non igitur incapacitas psychica actoris, sed defectus bonae voluntatis utriusque coniugis in submovendis occasionibus conflictuum et praesertim infidelitas ex parte viri causae fuerunt divortii".