cormacburke.me.ke

            I have stressed that it is natural for the person in love to desire marriage as God has instituted it: an exclusive one-with-one union, which is permanent and open to children. It is clear however that personal or social factors can operate to hinder people from appreciating or wanting - or even being able to want - marriage so understood; leading to a limitation or conditioning of the conjugal self-gift. A personalist analysis, if it is to be realistic, must take into account phenomena which constitute what may be called the "pathology" of marriage; and a legal examination must consider their possible juridic results.

            The marital self-gift can be vitiated by the conscious and deliberate withholding of some aspect essential to the reality or integrity of this gift. If this occurs, the celebration of marriage is null; it has no effect in uniting two persons as husband and wife.

            There are other situations where the marital self-gift is vitiated due to some unconscious factor; in such cases too the celebration is null. So we need to consider some of the main ways in which such null celebrations can occur, looking in a particular way at simulation, deceit, and consensual incapacity.

            Voluntary or intentional factors can introduce a substantial lack of authenticity into the conjugal self-gift, so vitiating it. The classical example of this is simulation, or the deliberate [internal] refusal in the moment of consent to accept one (or all) of the three "bona" represented by the unity or exclusivity of the marital relationship, its openness to procreation, or the permanent character of the bond it creates. Given the personalist viewpoint taken as reference, the exposition here will probably be clearer if we briefly anticipate some points that will be developed more fully in chapter ten.

            To my mind, much of post-conciliar married personalism still suffers from the tendency to dismiss the "bona" as "institutional" aspects of marriage, which therefore merit a rather negative consideration. What we saw in chapter two regarding the ends of marriage can also be applied to its properties, in regard to which few personalists seem to reflect that "institutional" and "personalist" can be in harmony - deep harmony - rather than in opposition; that the essential properties of marriage, just as its ends, can in fact be both institutional and personalist at the same time.

            Further, the personalist trends which I have in mind, insofar as they take account of the matrimonial "bona", view them (so continuing a long canonical tradition) rather as onerous obligations than as "values" or "benefits" of the married state. This failure to grasp and highlight the unique personalist content of these essential properties of marriage is all the more serious in the light of the deepened anthropological crisis of contemporary western civilization which, more than previous societies, is tempted to scepticism and pessimism regarding these values of marriage: particularly in relation to the indissolubility of the bond (the "bonum sacramenti") and to procreativity (the "bonum prolis"). Our contemporaries seem to have an exaggerated consciousness of the effort which wholehearted acceptance of these "goods" takes; and little awareness (perhaps because there is little insistence on this in marriage preparation) that this effort is a source and condition of happiness, as well as the cause of a deep maturing effect on those who face up to it.

            Given the modern pessimism about marriage, it is all the more urgent to hold on to christian anthropological values. Only so can one grasp the deeply anti-natural character of simulation. If the properties of the conjugal union are values or "goods", their exclusion shows a warped and unnatural approach to marriage, in clear and even pathological contrast with the native understanding man has of it. That is why simulation of marital consent - when a person externally and formally expresses acceptance of another as true spouse, but internally does not accept him or her as such - has always been regarded by the Church as something out of the ordinary and surprising.

            The marital decision is one of the most important choices a person can make in her or her life, and it is logically a decision not to be taken lightly. One must have strong motives to choose another as spouse, strong "causae contrahendi", among which love - love of predilection - is usually the principal one. In the face of such a choice however, there can also be reasons which make a person hesitate or doubt: "causae haesitandi" or "causae non contrahendi". Now, in a case where the person is dogged by doubts that are deep and serious - and does not overcome them - , the natural and logical thing is not to marry. What is neither natural nor logical in such a case of substantial misgivings which have not been overcome, is to go through the appearance of marrying, in conscious deceit, not taking the other truly as husband or wife, not exchanging a true conjugal self-gift with him or her..

            Nevertheless, we cannot over-idealize our approach to human realities. Christian anthropology always calls for the combining of a forceful optimism about the goodness of God's creation, especially in man, and a practical realism stemming from the knowledge of man's fallen nature. There is indeed a natural attractiveness to marriage, in all its aspects. Yet there is also, in our present state, a rooted diffidence towards the commitment it implies (cf. Catechism of the Catholic Church, nos. 1614-1615). This gives rise to misgivings, to pre-marital and post-marital tensions, and especially to conflictive situations in the key moment of consent.

            There are many motives inspiring a person to want (a true) marriage: love, desire for a family, for a home, for security... In these and other incentives, one can distinguish valid "causae contrahendi": reasons for marrying. There are other motives however which can make a person hesitate: fear of commitment, of the demands of common life together, or of offspring; uncertainty about the deeper characteristics of the other person... These provide motives of doubt; i.e. they constitute "causae haesitandi" or "causae non contrahendi": reasons for not marrying.

            The "se tradere" - the self-giving of marriage - has to be authentic. One has to give oneself in all the essential constitutive truth of conjugal auto-donation. What if this constitutive truth is missing, if a voluntary and substantial defect is introduced into consent, if the "traditio suiipsius" is not genuinely conjugal? Then the marriage is null. There is an appearance of marriage, an apparent consent, but it has no effect; no real marriage comes from it.

            A first lack of authenticity is to be found in simulation. There the person apparently marrying, does not want a genuine marital union. This the sort of case covered by c. 1101, § 2 which states: "if either or both parties through a positive act of the will should exclude marriage itself or any essential element of marriage or an essential property, such party contracts invalidly" ("At si alterutra vel utraque pars positivo voluntatis actu excludat matrimonum ipsum vel matrimoni essentiale aliquod elementum, vel essentialem aliquam proprietatem, invalide contrahit").

Need for a positive act of the will

            We are looking at a negative side of reality which, however abnormal, can and certainly does occur. How frequently? One cannot say. The Church does not initially doubt whether the will of the party is directed to marriage. It presumes that it is; and could scarcely do otherwise without insult to the integrity of all those marrying. Consent is expressed in a positive external act which one naturally takes to be sincere. As canon 1101, 1° says, "The internal consent of the mind is presumed to be in agreement with the words or signs employed in celebrating matrimony" ("Internus animi consensus praesumitur conformis verbis vel signis in celebrando matrimono adhibitis": c. 1101, § 1).

            What the Church does not presume is exclusion. This has to be proved; and proof must show a "positive" act, by which a person consciously denies or rejects what he or she externally professes (Simulation as a positive action differs from a defect of consent or a mere absence of will: "Qui simulat, vult simulare" (c. Heard, March 22, 1947: R.R.Dec., vol. 39, p. 191); "In simulatione, ... dum lingua affirmat, cor denegat" (c. Canestri, March 18, 1946: vol. 38, p. 162)).

            Is it possible to simulate "unconsciously"? An important question, since the suggestion has been put forward in recent years, also in some jurisprudence, to the effect that simulation can be "unconscious" - where the need for a positive act of the will appears to evaporate.

            In a case which came to the Rota, the grounds put forward in first instance were: "Consent defective in its formal object on the part of the Petitioner". Working from this rather unusual formula, the single Judge argued at length that consent is rendered invalid by "the substitution of another formal object which is incompatible with the correct formal object of Christian marriage"; and maintained that this "can take place consciously or unconsciously, with or without error, with or without lack of due discretion or competence, with or without ignorance of the true formal object of marriage, and even, in certain circumstances, with or without malice". He added: "In all of these cases, there is no separate, positive act of the will by which the correct formal object has been excluded".

            Such a thesis does not bear up to critical examination. The words of matrimonal consent are absolutely clear regarding the fundamental commitment which the person expressly pledges himself or herself to accept. It seems quite inconceivable therefore that someone who substitutes another formal object, truly "incompatible with the correct formal object of marriage", should do so unconsciously. Unless he is of such substandard intelligence that his consent is null under c. 1095, nos. 1 or 2, he necessarily realizes the contradiction between what he externally affirms and what he internally intends, and so he consciously simulates. Properly considered, therefore, any thesis put forward of "unconscious simulation", seems contrary to logic and has never been accepted in rotal jurisprudence. "Nor does one find in a person of healthy mind any unconscious discrepancy between his internal will and its external manifestation" ("Neque inconscie invenitur in homine sanae mentis discordantia inter voluntatem internam et eius manifestationem externam" (c. Mundy, Jan. 24, 1970: R.R.Dec., vol. 67, p. 117)). "The person who simulates or excludes, is conscious that he has not given himself [to the other] or received the gift of the other, as is required for marriage" ("Qui simulat aut excludit conscius est de non seipso, sicut ad matrimonum requiritur, tradito aut altero eodem modo accepto" (c. Serrano, May 21, 1976: vol. 68, p. 310). "A positive act of the will is not such nor has it the power to nullify marriage, unless it is consciously and deliberately elicited" ("Positivus voluntatis actus... talis non est seu vim non habet coniugium vanificandi, nisi conscienter ac deliberate eliciatur" (c. Ferraro, Nov. 11, 1980: vol. 72, p. 718). "No one can elicit a positive act of the will... without being aware of it" ("Nemo potest elicere positivum voluntatis actum... quin eum animadvertat" (c. De Jorio, March 21, 1970: vol. 62, p. 300). "Whoever claims before a court to have simulated his consent, must necessarily have been conscious of his deceit in [the moment of] contracting" ("Qui in iudicio sibi adscribit simulationem consensus, is necessario in contrahendo sibi conscius esse debuit suae fictionis" (c. Wynen, Feb. 6, 1936: vol. 28, p. 102))).

Proof

            The presumptions present in the Church's law are based on her experience of how human nature normally works, and her knowledge of the good and bad in man. Since the Church has never accepted the thesis that human nature is intrinsically corrupted, her law will not entertain any presumption that people are cheats or incompetent. People do of course lie or cheat. But an accusation against a particular person that he or she has cheated or lied cannot simply be accepted; it must be proved. This is a sign of catholic confidence in human nature.

            Simulation must therefore be "justified", in the sense that it must have a reasonable explanation, at least within the terms of reference of the simulator's mind. This explanation must show how a person who did not want a true marriage, wished nevertheless to go through the form of a marriage ceremony. Normally, I repeat, the person who does not want marriage, does not marry. Therefore one must show that the simulator had a strong reason for "contracting": i.e. going through an external form and rite, while interiorly rejecting the commitment he or she professed.

            In other words, according to constant rotal jurisprudence, the essential proof of simulation hinges, on the one hand, on establishing two causes: the "causa contrahendi" and the "causa simulandi"; and, on the other, on showing that the natural tension existing between the two ended in the prevalence of the "causa simulandi" over the "causa contrahendi".

            One of the main proofs always to be sought is the "confessio simulantis". If this is missing, the case undoubtedly is made more difficult. But even if it is present, one notes a peculiarity that attaches perforce to the simulator's claim. A confession of having lied would normally be considered a definite act of humility and indeed appear as a proof of sincerity. This however obviously no longer holds good if the person so confessing seeks a present advantage from what he claims was a past lie. This self-accusation must also be proved to be true: and of the very nature of the case, this proof is difficult ("Probatio simulationis in foro externo facilis non est. Certe non sufficit affirmatio etiam iurata simulantis, quia nimis indignum videtur quod sua quisque voce dilucide protestatus est, in eumdem casum infirmare, proprioque testimonio resistere": Gasparri, P.: De Matrimono, 1904, n. 912).

            So, to some extent, a confession of simulation always provokes a certain suspicion, because by it a person acknowledges his or her own lack of credibility. After all, if the alleged simulator's present assertion is true, then important past affirmations of his were false. If a person claims to have played deception in the past, he clearly places a duty on the judge to consider the possibility that there may be deception in what he asserts at present: the possibility, in other words, that in the past he affirmed the truth, whereas it is now that he is lying.

            This is the paradox of the "confessio simulantis" which is normally required as a main element in the proof of simulation. On the one hand it merits respect; on the other it induces diffidence. These are not so much intricacies of the law, as part of the complexity of the human situation. In any case it is clear that they do not make the ecclesiastical judge's task any easier.

            We have seen that conjugal love must be effectively, if not affectively, present in the moment of consent. Some twenty years ago, in the height of the debate regarding the juridic relevance of conjugal love, Carlo Caffarra pondered the question: "to what extent does a defect of conjugal love prevent consent from causing a marriage that is juridically valid?" ("qua mensura defectus amoris coniugalis impedit ut consensus causet matrimonium iuridice validum?"). His answer, given from an anthropological or theological view, seems juridically sound as well: "to the extent that the defect is such that the consenting parties who are mutually binding themselves conjugally together exclude the unity of the bond or its indissolubility or the right to acts apt of their nature for the generation of offspring" ("ea nimirum mensura qua defectus talis est ut partes consentientes et sese mutuo coniugaliter foederantes excludant vel unitatem vinculi vel indissolubilitatem ipsius vel ius ad actus per se aptos ad prolis generationem": C. Caffara: "Charitas Coniugalis et Consensus Matrimonialis" Periodica 65 (1976) 615-618). This places the juridic figure of simulation properly within the personalist context of a lack of authentic marital love.