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8.         On the juridic effect of a psychic anomaly: Enormously increased investigation in this century into the concept of "mental health", has led to acceptance of the fact that psychic infirmities are much more frequent than was formerly acknowledged. It has been established not only that such pathologies exist in varying degrees, but that many psychic disorders affect a person just in some areas of his or her life, while leaving intact his or her capacity to act normally in other areas. In the field of civil law and secular courts, these findings have opened up new debates about the proper legal understanding of personal responsibility or accountability, and about the validity of certain acts.

            These developments in the psychiatric and psychological sciences have had their effect also on the law of the Church, and very particularly on jurisprudential criteria regarding a person's capacity for contracting marriage. Canon law has of course always recognized that a serious psychic deficit may make a person incapable of valid matrimonial consent. Until about the middle of this century, possible declarations of nullity on such grounds were investigated under the heading of "amentia" or "dementia" (here we leave aside certain questions of impotence). Then, following the developments in secular sciences just mentioned, canonical jurisprudence too came to allow that a person can suffer from a grave psychic defect which incapacitates for valid matrimonial consent, without thereby being necessarily classified as "out of his or her mind" or "mad". The abundant jurisprudence and doctrine on the subject (which offered considerable diversity in the analyses made, criteria used, and terminology suggested) coalesced in the Code of 1983, in c. 1095, which now provides the framework, main principles and precise terms of reference for dealing with pleas of nullity on the grounds of psychic incapacity for marital consent (cfr. decis. ***).

9.         *** From what was stated above it follows that the canonical criteria set forth in c. 1095, while newly introduced into Church law, do no more than concretize and codify principles generally developed in previous jurisprudence, and now set within precise limits by the legislator. At the same time it should be noted that the basic parameters of consensual incapacity are not of positive, but of natural law. Thus in a recent rotal decision c. Stankiewicz, after opening words which are fully applicable to the case before us today - * - we read: *

            Jurisprudence and doctrine are in full agreement on this point. *

10.       Under the canon a first main requirement that a marriage be declared null due to "psychic incapacity" for consent is the gravity of the underlying anomaly from which the incapacity derives. The correspondence of this requirement with natural law is obvious. It is because marriage is so particularly in consonance with human nature that a human right to marry exists (c. 1058). It follows - also as a matter of natural law - that only some grave defect in a person's natural psychic faculties can induce the loss of this right. To suggest that this right could be forfeited because of some mild or moderate defect in one's psychic faculties (such as about everyone at times undergoes) would violate both common sense and the tenets of christian anthropology.*

            That only a condition which is gravely anomalous can provoke consensual incapacity is expressly stated by c. 1095, 2 regarding a possible defect of discretion of judgment. If any doubt initially existed that the requirement of gravity also applies to the "causes of a psychic nature", mentioned in no. 3 of the canon, this was definitively dispelled by the authoritative interpretation of the canon given by Pope John Paul II in his Addresses to the Roman Rota in 1987 and 1988: "An argument for real incapacity can be entertained only in the presence of a serious form of anomaly which, however one chooses to define it, must substantially undermine the capacity of understanding and/or of willing of the contracting party" (AAS 79 (1987) 1457); "... only the more serious forms of psychopathology are capable of undermining the substantial freedom of the person" (AAS 80 (1988) 1182)"*

11.       The second main requirement for a declaration of nullity due to consensual incapacity is explicitly stated in both nos. 2 and 3 of the canon: i.e. that the incapacity (whether in the estimative or in the executive order) should relate to the essential rights/obligations of marriage, and not just to its incidental duties, rights, or expectations.**

            Therefore, it is not enough to prove that the person consenting suffered from some form of grave psychic anomaly, nor even to demonstrate that the anomaly in question affected some matrimonial right or duty with an incapacitating effect. One must further and absolutely show the essentiality - regarding the institution of marriage - of the right or obligation in question. An anomaly, however grave, that affects a person regarding the understanding, choice or assumption of unessential rights or obligations of matrimony, is inadequate to provoke consensual incapacity: * *. This is constantly held in rotal jurisprudence: *

12.       There is then united agreement in rotal jurisprudence that an incapacity regarding a marital right or obligation invalidates consent, only if the right or obligation in question merits the juridic status of essential. It would be premature to say that equal agreement exists about which obligations of marriage are in fact to be considered juridically essential. This latter question is still a matter of ongoing reflection in rotal jurisprudence, in furtherance of the directive given by Pope John Paul II shortly after the entrance into vigor of the new Code: *

13.       Since these essential or constitutional rights and obligations have their juridic roots in the object of matrimonial consent, it would seem that investigation of this aspect of c. 1095 must go hand in hand with the analysis made of c. 1057, § 2, which itself describes matrimonial consent in terms that are quite new in canonical parlance: "an act of the will by which a man and a woman, through an irrevocable covenant, mutually give and accept each other in order to establish a marriage". The exact juridic content - the nature, extent and limits - of what is implied in the "sese mutuo tradunt et accipiunt", demands careful study, and poses no small problems *

14.       The "sese mutuo tradere et accipere", ordered to the constitution of marriage, certainly entails a mutual, free and binding commitment of the persons of the spouses: a bond or covenant uniting them and, for the purposes of canon law, giving rise to rights and obligations that are juridically measureable. It is however questionable whether one can require an integration of the persons of the spouses, as an essential juridic element of the "sese mutuo tradere et accipere". An "integration of persons" - more properly expressed as an "integration of personalities" - is a psychological concept, at the same time as, applied to the conjugal union, it no doubt expresses a spiritual ideal. However it resists any juridic measurement, and does not appear to qualify as a working concept for elaborating a judicial decision. Judges can decide questions in their own field, only if it is possible to weigh the concrete issues before them in juridic terms and to apply juridic measurements to them. Psychological, anthropological or spiritual parameters do not in themselves provide any basis for judicial practice, unless they can be appraised in proper juridic terms which give a notion of legal rights or obligations sufficiently precise and determined that a court of law, in fulfilment of its mission, can pronounce on them.

15.       A neurosis is a psychic disorder that is fairly common whose incidence, given the stress of the modern world, is probably on the increase. It is described as: *; or "a relatively mild mental disorder, characterized by hysteria, anxiety, or obsessive behaviour" (Collins English Dictionary, London, 1986). Evidently the lack of control over one's nervous reactions, besides being a source of suffering for the neurotic person, can create special difficulties in interpersonal relations. In extreme cases a person might feel him or herself - or be considered - incapacitated for social life. Whether a neurotic condition (hysteria, obsessive anxiety, etc.) can cause consensual incapacity for marriage under c. 1095, 3° , depends on the proof not only that the condition was both grave and present at the moment of consent, but also that the concrete marital obligation - whose assumption it is considered to prevent - is constitutionally essential within the terms of the canon.