cormacburke.me.ke

            In the case of simulation, the lack of authenticity is evident. The person going through the ceremony does not give himself conjugally. There is a constitutional lack of integrity in the marital donation made to the other.

            The new Code admits another type of invalidating lack of authenticity in marital self-giving. It is expressed in c. 1098, one of the new canons bearing a distinctively personalist character. "A person contracts invalidly who enters marriage deceived by fraud, perpetrated to obtain consent, concerning some quality of the other party which of its very nature can seriously disturb the partnership of conjugal life" ("Qui matrimonum init deceptus dolo, ad obtinendum consensum patrato, circa aliquam alterius partis qualitatem, quae suapte natura consortium vitae coniugalis graviter pertubare potest, invalide contrahit"). Here the lack of authenticity does not lie in the impaired or vitiated nature of the marital bond, which one in fact consents to in its integrity, but in the radical and studied falseness of the image offered of one party's character or personality, through deliberate deception aimed at obtaining the other's consent.

            The simulator under c. 1101 seeks to avoid a true marriage; the person practicing fraud under c. 1098, seeks to bring it about. In the case of "dolus" then, as distinct from simulation, a person does intend to accept the essential elements and properties of matrimony. However, precisely so as to bring about the marriage, a conjugal self not corresponding to reality (in some serious respect) is deliberately projected to the other party.

            There have been few rotal cases so far on this new grounds. At this stage in fact it can be said to remain rather unexplored territory. Since I see it as a canon "with a future", let me offer some rather tentative ideas in its regard (cf. c. Burke: Oct. 25, 1990: R.R. Dec., vol. 82, pp. 722-733).

            As regards the "ratio iustitiae" or juridic justification for the nullity indicated by the canon, some see it in "the lack of real agreement between the wills of the two contracting parties" (cf. Jusdado, M.A.: El Dolo en el Matrimono Canónico, Bosch, Barcelona 1988, p. 268). This is perhaps too close to a merely contractualist analysis. To my mind, the "ratio iuris" is better placed in the "iniuria", the injustice, done to one of the parties: the violation of the strict right - possessed by each of the partners to the married covenant, in virtue of the equal dignity they share - that the conjugal gift of the other be made in truth and in fact. The violation of this right places the person deceived in a position where his consent is fraudulently directed to an object substantially different to the one he thought he was choosing; and so the freedom and authenticity of his consent is vitiated.

            Thus a sentence coram Serrano acutely remarks that the main reason why deceit invalidates is that it perturbs "the very substance of consent, emptying it not only of the true mutual gift and acceptance of the spouses by means of an adequate intentional image of each other, but also of the truth which corresponds to consent so that it be really such" ("substantiam ipsissimam consensus, illum exuans non modo de vera utriusque coniugis ad invicem traditione et acceptatione per adaequatam alteriusutriusque imaginem intentionalem, sed etiam de veritate quae ipsimet consensui competit ut talis sit": unpublished Sentence of June 2, 1989, n. 8; cf. decision by the same Auditor of May 28, 1982: R.R.Dec., vol. 74, p. 319).

            The provision of canon 1098 flows naturally from the new personalist idea of self-giving placed at the heart of matrimonial consent. One gives oneself as one is; and one also in particular accepts the other, as he or she is. It is clearly contrary to the dignity and freedom of this interpersonal commitment, if one person is deceitfully induced to accept a falsified image of the other. The unreserved nature of the marital commitment, in both giving and acceptance, calls for fundamental sincerity in this spousal interpersonal exchange.

            Certainly, no one has a right to find a husband or wife free from defects. But everyone has a right to a marital consent given by the other which represents a sincere and unfeigned gift of that person as he or she actually is (cf. coram Burke, Nov. 26, 1992, no. 17: RRD, vol. 84, p. 585; Studia canonica 27 (1993), p. 502). This is a point we will touch on again when we return to the bonum coniugum.

            This new canon appears to me to be of very great interest. It covers cases not properly provided for hitherto, and lessens the danger of superficial or unwarranted application of other canonical grounds of nullity. As an expression of a sound juridic personalism, it permits a more accurate analysis of (and offers a more just remedy for) certain questions connected with condition and error, as we will consider in the next chapter.

            Nevertheless, c. 1098 (also in view of its newness) requires careful handling. Carelessly or abusively used, it could lead to injustice and to the discredit of canon law in its purpose of protecting the rights of the People of God. The tenor of the canon therefore needs to be carefully observed.

            In the first place, a certain reticence should not be mistaken for invalidating deceit. One can certainly maintain that the ideal relationship between spouses is one of total mutual openness, although some marriage counsellors would question whether this is so in every single situation. The spousal right to knowledge of one's partner, or the mutual obligation of self-revelation, should not however be absolutized. There is no positive obligation to reveal every aspect of one's life and character; there is a negative obligation - at least in relation to bringing about consent - not to conceal any major defect that "of its very nature" (suapte natura) can seriously disturb the conjugal partnership. This seems clearly to have been the mind of the Commission drafting the new Code. At one stage in its work, the concept of "dolus" was extended, so that the schema read "... who enters marriage deceived by fraud, even if perpetrated through reticence..." ("qui dolo, etiam per reticentiam patrato, deceptus": Acta Originalia, fol. 22; cf. Jusdado, op. cit. p. 205). This was dropped in the very last session, apparently from a feeling that simple reticence is not sufficient grounds on which to invoke nullity. The Commission seems to have accepted the argument of one of the Consultors: "reticence corresponds to a personal right, and no one is bound to betray himself" ("reticentia pertinet ad ius personae et nemo tenetur tradere semetipsum": ibid). While the first point of this argument seems acceptable, the second phrase arouses some slight perplexity ("betray oneself"?). Basically however I feel the main point is properly made: that the law cannot regulate every aspect of the married consortium, or attribute juridic value to minor characterial defects in the spouses (e.g. the fact that one of them is of a more timorous spirit).

            As regards the scope of the fraud in question, it is explicitly said that it must have been "perpetrated in order to obtain consent". It must therefore be clearly proved that the purpose behind the deceit was precisely the eliciting of marriage consent. Deceit about some quality practiced for another motive - human respect, for instance, or vanity - does not invalidate. This confirms that simple "non-communicativeness" of character is not sufficient; there must be a deceitful intention.

            Greater difficulty is posed by questions related to gravity, in the various ways in which this concerns the matter. A triple consideration is called for: gravity of the deceit practiced; gravity of the quality causing harm; and gravity of the harm which the quality would naturally cause to the conjugal consortium. As regards the latter two, one particularly needs to examine whether the gravity in each case is to be evaluated according to objective or to subjective criteria.

            a) Gravity of the deceit. There is no requirement that the deceit must be grave. In the case of a very naïve person, very slight guile may perhaps be enough to deceive him or her; but the rights of ingenuous persons are also entitled to the protection of the law.

            b) Gravity of the quality. The careful wording of the canon makes it clear that invalidity results only where there has been concealment of a quality of some objective importance. The Legislator, by wishing to state that the quality must be perturbing "of its very nature" - "suapte natura" - seems to exclude specifically any merely subjective interpretation of the importance of the quality. It must be a quality or a condition of the other person which, according to some objective criterion (and there seems to be none other than common estimation, confirmed by jurisprudence), is both important in itself and capable, if deceitfully hidden, of seriously disturbing conjugal life. It is not difficult to list a few examples that would seem fairly obvious: e.g. concealment of some gravely infectious disease such as AIDS, or of pregnancy by a third party [1], or of intolerant hostility towards the religious faith of the other, etc.

            Confirmation of this view would seem to be offered by the one concrete example of invalidating deceit to which the Code makes specific reference: that of sterility. Canon 1084, § 3 states: "Sterility neither prohibits nor invalidates marriage, with due regard for the prescription of can. 1098". Marriage is of its nature ordered to procreation (c. 1055), and the vast majority of persons marry in the hope of having children. To deceive another about an actual condition of sterility is to mislead him or her about a quality central to the married relationship. For example, if a woman whose womb has been excised conceals the fact in order to bring about consent, the marriage can certainly be declared invalid.

            Perhaps the worst deceit of all would be about the existence of love itself; i.e. being misled into believing that one is loved by the other party, when this is not the case. So if it were clear that a person had deliberately feigned love, in order to obtain the other's consent, showing attitudes of generous tenderness before marriage which as soon as the wedding was over turned into a clear approach of indifference or even dislike, then the marriage could surely be declared null. This does not modify but does refine what we said about a "ius ad amorem (affectivum)". While there is no right to affective love as such, there is a right not be duped into marriage by the put-on appearance of such love.

            c) Gravity of the disturbance. The disturbance to the married "consortium" must affect central aspects of the conjugal partnership of life. A disturbance, however grave, to its accidental aspects is not material. The disturbance, to be relevant under c. 1098, must affect the marital partnership substantially, which means that it must be such as would gravely disturb the "consortium" in relation to its essence, properties or ends.

            Nevertheless, since deception about the contractant's intention regarding exclusiveness, procreativity or permanence of the bond, is already covered by simulation, the object of the deceit must be something different to the essential content of the three "bona". It has to be some quality that objectively - of its nature - tends to undermine in a substantial way the communion of married life between the spouses.

            Opinions about social or political matters, etc., easily provide a source of married harmony or discord, especially if one or other of the parties has a stubborn attachment to a particular viewpoint. Yet (unless one moves over into the strained hypothesis of an explicit condition), it seems questionable if deceit about such personal views can nullify the marriage, as for instance in the case where one of the parties is an earnest ecologist, while the other conceals the fact that he regards ecology as a fool's game; and later in married life his or her real views emerge and tend to disturb the home atmosphere.

            Certainly ordinary and universal traits like mere vanity or selfishness, or such mild and relative defects as laziness or lack of sense of humour, cannot be invalidating qualities under the canon. Minor defects, even if one of the parties finds them annoying, cannot be said of their nature to carry the potential for the serious disturbance of married life. If they become the occasion for difficulties in the married "consortium", this is probably more due to the nature of the party disturbed - to his or her over-irritability, etc. - than to the nature of the defect in itself. Before marriage, the person may indeed have made a deliberate attempt not to appear lazy, etc. precisely in order to "win" the other. But such "deceits" are part of the tactics and almost of the very nature of courtship. It does not frequently occur during married life that spouses find their partner to be much better, with far fewer defects, than he or she appeared during courtship. Not a few psychologists and married experts hold that mature happiness in marriage can only be achieved by those who manage to "get over" the let-downs of discovering their partner's defects (cf. C. Maltas: "Marital Crises of Midlife": Psychiatry, vol. 56 (1992), p. 126; see below, chapter 11, p. *).

            One must carefully distinguish a case of deliberate deceit from one of a simple pre-marriage faulty appreciation of one party made by the other. There is no basis in justice or law for sustaining that this mistaken judgment (which can in no way be taken for the grave lack of discretion contemplated in c. 1095, 2) can invalidate consent, thus releasing a person from his or her free commitment to marital acceptance of the other. It is only if there has been deliberate deceit about the existence of a grave defect, that one can discover a "ratio iuris" for saying that consent was constitutionally vitiated. Given no deceit or fraud, the presence - or the emergence - of such a defect is compatible with valid consent and a valid consortium (cf. Sentence of Nov. 26, 1992, coram Burke, no. 18: RRD. vol 84, p. 585).

NOTES

[1] How inadequate the previous legislation was is illustrated by the thesis of the well-known canonist of pre-conciliar times, Arturo C. Jemolo. In his work, Il Matrimonio nel Diritto Canonico (Milan, 1941, p. 247), he gives an example of the irrelevancy of deceit with regard to marital consent. According to Jemolo, marriage would be valid even if brought about by a woman deceiving a man into believing that she is pregnant by him, when she has actually conceived through another.