cormacburke.me.ke

[The distinction made here is not meant to be exhaustive, since it leaves aside the question of impediments, which may have a voluntary origin or not].

Consensual incapacity: some general considerations

            We have spoken of some of the conscious or deliberate factors that vitiate the marital covenant: invalidating simulation, where a person intentionally empties marriage of some essential element, thus consenting to no more than a "pseudo-marriage"; and invalidating fraud, where the image of the person consenting is so substantially falsified that what is offered to the other in order to induce consent, is no more than a "pseudo-self".

            What if there is no deliberate falsification? What if the consent is sincere and truthful, but simply inadequate? What if the hypothesis is not wrong intentions or deliberate malice, but the inadequacy deriving from a defective personality? Given the extraordinary impact of so many unusual features of modern life (lack of family background, poor school education, a commercialised culture of sex or drugs, etc.), is it not possible that in many cases the powers of understanding and volition may be so affected so conditioned in what should be their normal development, that any real and adequate choice of marriage itself is beyond many persons' psychic capacities?

            This leads us to consider c. 1095, which states that those persons are incapable of contracting marriage, who: 1º "lack sufficient use of reason"; 2º "suffer from a grave lack of discretion of judgment concerning the essential matrimonial rights and duties which are to be mutually given and accepted"; 3º "are not capable of assuming the essential obligations of matrimony due to causes of a psychic nature".

            Here once again background ideas are of enormous importance. One's approach to the matter of consensual capacity and the interpretation one tends to make of c. 1095, are necessarily colored by one's anthropology. As we noted in chapter one, many basic tenets of modern anthropology are not christian; they underpin a radically defective understanding of man, of his nature, development and destiny (The Pope's 1995 address to the Rota insisted once again on this: AAS 87 1014-1015).

            One's anthropological presuppositions flow over into every field dealing with man, also of course into that of psychology, which is of such importance to canonists in the evaluation of the human act, and very concretely of the act of marital consent. For Christians such a large part of human dignity is to be found in personal freedom; we believe that man is basically free, though not perfectly so. Hence come, among other things, our notion of responsibility on the one hand, or our study of motivation on the other.

            Secular psychology is largely deterministic. Nevertheless (not too logically), it still studies concepts of human capacity, maturity and fulfillment, taking man as capable of growth and of tending towards some form of "ideal" human existence. Christians too, but with very distinct basic presuppositions and values, believe in human potential and capacity; and in processes of maturity and fulfillment - and of course of decline and frustration. The important concept of normality has also very different connotations for the christian and the secular psychologist, and therefore for the judge as well. This is evidently of special practical relevance in connection with capacity for marriage.

            Christian anthropology holds that there are few things more proper and natural to man than the "conjugal instinct", or the tendency to marry. Marriage is the normal aspiration as well as the genuine vocation of the vast majority of men and women [1]. As a result, there exists a natural right to marry. Canon 1058 states: "All persons who are not prohibited by law can contract marriage". For a person to be incapable, and to be judicially and justly declared incapable, of exercising this right is a most serious thing and can obviously result only from some extraordinary defect in his human makeup: extraordinary precisely because it incapacitates him from sharing in the ordinary and normal lot of his fellow-men. Therefore, as Mario Pompedda writes: "Man is not totally corrupted by Original Sin; and at the same time marriage is open to every free person. It is therefore to be presumed that the obligations of matrimony are such as can be fulfilled by anyone... Generally speaking men must be considered capable of contracting marriage; incapacity therefore must be regarded as something extraordinary" ("Homo per originale peccatum non totus corruptus invenitur; ex altera parte matrimonium exstat cuilibet homini liberum. Praesumendum igitur est onera coniugalia ea esse quae valeant adimpleri a quibusvis hominibus... Homo generatim haberi debet habilis ad contrahendum matrimonium; exinde incapacitas quid extraordinarium haberi debet": Incapacitas adsumendi"... Per. 1986, pp 138-140. Cf. "we cannot forget that man is spurred and prepared by his very nature to enter marriage. Incapacity must therefore be considered as something extraordinary, and to be strictly proved in each particular case" (c. Fiore, May 30, 1987: R.R.Dec., vol. 79, p. 343)).

            Canon 1095 therefore deals with cases that do occur and should be provided for by law, but always show a high degree of abnormality which is truly pathological. Discretion of judgment, to which c. 1095, 2° refers, is certainly in itself a positive concept, denoting the judgmental ability gradually achieved by a person whose psychic development falls within the limits of normality. But the canon deals concretely with the "pathology" of discretion of judgment - a negative phenomenon, implying abnormality; the abnormality not of wanting to do something "contra normam", but of not being able to do something "iuxta normam", i.e. according to the way of acting that "normal" men and women should, if the wish, be always able to accomplish. In the case of a "serious defect of discretion", the pathological abnormality consists in not being able to appreciate or judge the essential rights/obligations of marriage, with at least the minimum critical discernment that can be expected of a person who, as regards age, is possessed of the legal right to marry.

            In approaching the canon, two major points must be borne in mind if one is to avoid doing violence to common sense, to the wording of the legal norm itself, and to the express mind of the Legislator. The first is that consensual incapacity can only result from some pathology or psychic anomaly that is grave. The second is that consent is vitiated only if the rights/obligations over which the pathology or anomaly produces its incapacitating effect are essential to matrimony.

            There is no hesitation in rotal jurisprudence about the need for some grave anomaly. "Only with considerable difficulty can one attain moral certainty that the party already at the time of the wedding was incapable of carrying out the substantial duties of matrimony, unless he or she at the time of the married celebration was already suffering from a very grave neurosis, which was extremely deep-rooted in his or personality" [2]. To this we should add that rotal judges naturally enough are not always of one mind about whether a condition, proved in a particular case to have been present at consent, was grave or not. There is agreement too in rotal jurisprudence that incapacity occurs only when the psychic anomaly incapacitates for some constitutionally essential obligation of marriage. But here there is less of a consensus about which exactly are these essential obligations.

            At the level of theory and principle, no one seriously contests that the incapacitating anomaly must be grave in itself. The wording of the canon leaves little doubt about the matter; and if there had been any, it was dispelled by the Legislator himself who, in 1987 and 1988 in two noteworthy Addresses to the Rota (and therefore to all ecclesiastical Tribunals) chose to give an authoritative interpretation of this point [3]. It could be noted that these clear papal addresses reflect earlier jurisprudence, which is no matter for surprise since the points made are in the last analysis an obvious application of common sense.

            In 1987 the Pope said: "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). And in 1988 he insisted, "that only the more serious forms of psychopathology are capable of undermining the substantial freedom of the person" (AAS 80 (1988) 1182).

            The second point is that it must be in relation to some essential right or obligation that the anomaly incapacitates. In other words, it must relate to the indispensable aspects of the conjugal commitment; not merely to its incidental aspects, and less still to other aspects of human life. This also seems a matter of common sense. Here however I repeat that rotal thinking is not fully matured or concordant about which exactly are the essential obligations of marriage. In the following chapter we will attempt to study this complex point, not certainly in an exhaustive way but simply from the angle of our present concern, that of married personalism.

            Here we will touch briefly on certain aspects of c. 1095 that could be held to have personalist implications: A) the concepts of normality and maturity; B) internal freedom; C) incapacity for assuming.

A) Normality and maturity

            In his 1988 address to the Rota, the Pope, having reminded ecclesiastical judges of the well known fact that "in the field of psychological and psychiatric sciences experts themselves have difficulty in defining the concept of normality in a way that is satisfactory to everyone", went on to comment the reduced vision of psychological and psychiatric schools of thought currently dominant in the secular world. Here he added that "in such a reduced view of the human person and of his vocation, one easily ends up by identifying normality regarding marriage, with the capacity for receiving and offering the possibility of full self-fulfillment in the conjugal relationship" (AAS vol. 80, 1180).

            Gordon W. Allport, Professor of Harvard University, stands among the best-known psychologists of this century. An issue of the British Journal of Psychiatry describes him as "one of the most influential personality theorists" (vol. 150 (1987), p. 448), while in rotal jurisprudence he has been referred to as the "illustrious psychologist" (R.R.Dec., vol. 73 (1981), p. 313). Allport roundly states that "Psychologists cannot tell us what normality, health, or maturity of personality mean" (Pattern & Growth in Personality, New York, 1961, p. 307); and later he quotes another psychologist to the effect that "all normal people have many loose ends" (G. Murphy: Personality: a biosocial approach to origins and structure, New York, 1947, p. 661). All of us, in other words, suffer from psychological "anomalies", which affect and indeed partially reduce our capacity of understanding and/or of willing, without thereby substantially undermining it. Even non-christians realize this; and Christians all the more so; it is the result of Original Sin ("while the behavioural sciences, like all experimental sciences, develop an empirical and statistical concept of "normality", faith teaches that this normality itself bears the traces of a fall from man's original situation - in other words, it is affected by sin" (Veritatis Splendor, 112)).

            The surest advances of modern psychiatry have been in the pharmaco-therapeutic field. While it can remain a matter of medical debate why certain chemical compounds can relieve anxiety or mental tension, for instance, or states of sleeplessness or depression, it is a verified fact that they are able to do so. The many persons today who find relief in substances such as valium, are scarcely to be classified as mentally sick in any medical sense; yet it is also clear that they do not enjoy 100% psychic health. We would say that they are normally subject to the stresses of life; which means that they simply show a mild or moderate deviation from the "norm" of perfect psychic balance and health.

            To determine what is "normal" in conjugal life or relations, is no easy matter. Modern non-christian anthropology and psychology tend to work on the basis of a "norm" in these matters which christian anthropology would rather consider an "ideal": something indeed to be worked for, but seldom if ever fully achieved in practice. Whatever the value of such an "ideal norm" in other fields, it is not of evident relevance to jurisprudence in the task of determining the minimum capacity necessary for valid matrimonial consent (which, it must be repeated, is always to be determined in relation to the essential obligations of matrimony).

            Any thesis tending to set more than an ordinary level of maturity of discretion of judgment as necessary for valid matrimonial consent, would run contrary to human rights. The discretion required for marrying is normal; where an extraordinary element is required is precisely in the deviation from the norm.

            One of the most distinguished of contemporary canonists insists with emphasis that for valid marital consent, "there is no need for an above-average intelligence or for mental health that is free from any defect; there is no need for full and absolute maturity of judgment; there is no need for a capacity that covers every aspect of life, even of married life! On the contrary, what is sufficient is a use of reason adequate to the act of consent. It is enough to be free from a grave defect of discretion that relates to the essential rights-obligations involved" (M.F. Pompedda: Studi di Diritto Matrimoniale Canonico, Giuffré, 1993, p. 488). We would add that intellectual dullness or a low IQ, academic backwardness or an absence of formal education, a disinclination for study, a preference for manual work...; none of this constitutes proof of a lack of the necessary discretion of judgment required for valid matrimonial consent.

            On the local level, some affirmative decisions are still given under 1095, 2° , on the grounds the party "did not exercise the minimum of maturity of judgment in her marital consent". Although precedents can be found in rotal practice for considering "immaturity" or "lack of maturity" as grounds for consensual incapacity, the use of the term "maturity" has its difficulties, as can be gathered from the fact that the Pontifical Commission for drafting the new Code, in considering the schema of what was to become c. 1095, 2° , rejected a formula according to which "maturity of judgment" would have been an alternative expression for "discretion of judgment" (cf. Communicationes 1975, pp. 46-48).

            "Marriage does not represent the summit of maturity already achieved, but is an "evolutionary phase" in the process of acquiring greater maturity" ("Matrimonium non est maturitatis acquisitae culmen, sed "fase evolutiva" in processu maioris maturitatis acquirendae": c. Pinto, July 8. 1974, vol. 66, p. 501). "Marriage cannot be looked on as the high point of maturity already acquired, but rather as a step in the process towards acquiring fuller maturity" ("Matrimonium haberi nequit culmen maturitatis acquisitae, sed potius gradus in processu ad pleniorem maturitatem acquirendam": c. Pompedda, July 3, 1979: vol. 71, p. 388). Msgr. Serrano therefore says: "In the case of anyone who is not gravely deficient in the development of his or her personality, marriage cannot be forbidden; nor if it has already been contracted, declared null" ("Omnibus igitur hominibus, in personalitatis evolutione non graviter deficientibus, matrimonium non est interdicendum, nec, initum, irritum declarandum": c. Serrano, July 9, 1976, vol. 68, p. 319).

            Once the legal age of marrying has been reached, a person's discretion of judgment cannot be said to be gravely disproportionate to marriage unless it is also gravely disproportionate to the discretion normal at his or her age. This is all the more important in that it is always possible to show that people emerging or recently emerged from adolescence are "relatively" immature - relative, that is, to the maturity that longer experience of adult life brings. There is almost certain to be a considerable disproportion between the understanding of marriage shown by someone of 30 or 40, and one of 18 or 20. Yet the norm by which the adequacy of the latter's understanding is judged cannot be the degree of understanding attained by the former. To prove that the latter had a discretion or maturity of judgment gravely below the normal at that age is possible only if he or she can be shown to have labored under some serious characterial or psychic handicap which effectively reveals a truly pathological personality. In his address to the Rota in 1987, Pope John Paul II warned against nullities being granted "under the pretext of a vague immaturity or psychic weakness in the contracting parties" (AAS 79, 1457-1458). A slight or moderate departure from the norms of proportionality is therefore not enough to support a plea of invalid consent.

            Immaturity connected with adolescence, as Stankiewicz say, "is distinguished from immaturity imbedded in the structure of the personality, because it is of a transitory nature and can be considered as a lack of experience of life rather than as a radical defect of personality or character" ("distinguitur ab immaturitate insita in structura personalitatis, quia indolem transitoriam habet atque potius aestimatur tamquam carentia experientiae vitae quam radicalis defectus personalitatis vel characteris": July 11, 1985, vol. 77, p. 357). In the end, one must conclude that the term "immature" is too ambiguous to be a working term. There is a "maturable" immaturity, which is normal; and there is an "unmaturable" immaturity which incapacitates. Only the latter type of immaturity enters within the scope of the canon.

            As John Paul II said to the Rota in 1988: "while for the psychologist or the psychiatrist every form of psychopathology can seem contrary to normality, for the canonist, who draws his inspiration from the integral understanding of the person [offered by christian anthropology], the concept of normality, i.e. of the normal human condition in this world, also includes moderate forms of psychological difficulty... In the absence of such an integral vision of man, normality on the theoretical level easily becomes a myth, and on the practical level, ends by denying to the majority of persons the possibility of giving valid consent" (AAS 80, 1181).

B) Freedom

            Without real freedom, a person is not a responsible subject, and his or her human dignity is fundamentally undermined. Determinism is incompatible with true christian personalism. Here some brief annotations can help to clarify what is meant by human freedom, and in particular to distinguish motivation (not only compatible with true freedom, but a condition for its exercise) from intellectual or psychic conditioning (by which freedom is in fact lost).

            To be free is to able to say Yes or No, to make one choice rather than another. "The idea of freedom is substantially identified with the capacity a person possesses to determine himself in favor of one alternative by way of preference to others" (R. Zavalloni: La libertà personale. Psicologia della condotta umana, Milan, 1973, p. 358). If a person, even before having an initial contact with a matter requiring a decision, were determined to one eventual choice, he would in fact not be free. The first approach of a free person to any such matter must therefore be one of indetermination.

            On the other hand, if he continues to remain in such a position of indetermination or indifference, it is clear he will never come to a choice in the matter. A choice in fact involves precisely a self-determination, a free commitment of oneself, in a definite direction. A will which is permanently indetermined, is paralysed; it is unable to choose, or it ends up by making haphazard and aimless "choices" that have nothing to do with the true exercise of human freedom. "The indetermination which must be introduced into freedom has nothing in common with that other indetermination characterizing freedom of indifference, i.e. a reasonless choice, a motiveless willing. Freedom of indifference is something non-sensical" (Zavalloni, ibid. 237).

            It is through a process of discovering motives that a person abandons his position of indifference, and is enabled to come to a choice for or against a particular action, so exercising his freedom. It is therefore an elementary mistake to think that because a choice is motivated, it is less free. And yet some people do entertain "the false supposition that freedom implies the exclusion of all motivation" (ibid. 66). No one makes a true human choice without a motive. Actions without motives would not be free; they would be irrational. "Freedom is not in fact something anarchical or irrational; it does not consist in the absence of causality or of motivation" (ibid. 231).

            A motive can indeed be described as an interior stimulus or psychological pressure urging a person to a particular choice. But internal motives in themselves, unlike certain pressures coming from outside, do not take away freedom. If one holds that freedom means unmotivated decisions, one easily comes to regard the presence of motives as "proof" of some form of internal coercion which, just as external coercion (cf. c. 1103), would involve a violation of human dignity and freedom. This is very unsound psychology. Gaudium et Spes teaches very clearly: "Man's dignity therefore requires him to act out of conscious and free choice, as moved and drawn in a personal way from within, and not by blind impulses in himself or by mere external constraint" (no. 17).

            Man has a series of natural needs, inclinations and instincts, given to him for his good. While he can use these well or badly, they stimulate his will and it cannot remain indifferent to them. On the contrary, it is normal for the will to be influenced or conditioned internally by these factors; and, in the absence of a serious psychic anomaly coming from other sources, such a conditioned or influenced will must be considered "sufficient" and "mature" for free human choices. As we read in a Sentence coram Fiore: "One must therefore say that because of these internal conditionings the exercise of free will is made more or less difficult, but freedom in itself is not taken away" ("Dicendum quapropter est per illa interna temperamenta plus minusve difficilius fieri exercitium liberae voluntatis, sed ipsam libertatem per se non auferri": May 30, 1987, vol. 79, p. 340). To demand that man have "absolute" or "perfect" freedom, unconditioned by the fact of his humanity and marked by no difficulty in its exercise, is to ask for a will such as only God possesses.

            In a Sentence coram Stankiewicz, we read: "Serious difficulties can arise from the application of the conclusions of natural sciences, which are largely based on psychological determinism, to canon law which rests on the metaphysical principle of free will" ("Graves difficultates oriri possunt ex applicatione consectariorum disciplinarum naturalium, quae plerumque innituntur in determinismo psychologico, ad legem canonicam innixam principio metaphysico de libero arbitrio": May 31, 1979, vol. 71, p. 309). For his part, Gordon Allport says: "[modern] psychology... knows so many limitations upon freedom that it inclines to assume that in the last analysis all conduct is determined and no act is free" (op. cit. p. 561). The assessment that our freedom is subject to many limitations and influences - also from within - is correct; that is the present human condition. But Christianity not only rejects the inference that all conduct is therefore determined; it goes on to hold that our natural tendencies, acting according to right order, favor the proper exercise of freedom.

            It is to be expected that strong motives should influence the choice of a matter as important as marriage. The most common and natural motive is of course the simple fact of being "in love" with another person; a motive that does not easily lend itself to a purely rational explanation or analysis. 'Love is blind', it is said. So true is this that it almost looks like a plan of nature that people, as a consequence of "falling in love", are drawn to marry with an idealized impression of their partner's character and personality, and without a realistic appraisal of the presence or extent of his or her defects. Yet who would suggest that the very fact of being in love could be adduced as a proof or explanation of incapacity for marriage? Incredible as it may seem, this does happen; and it happens even at the level of marriage tribunal personnel. In a case that came before me at the Rota, the Acts recorded the following conversation between the Respondent (who strongly resisted the plea of nullity) and the Judge Instructor, who tried to help her understand what is implied in lack of due discretion. First the Instructor asked her whether she did not see the man's defects before marrying; she replied that she did realize he had defects, but thought she could change them. "But why did you marry him, then?"; and she answered: "because of love". So, the judge said, your motive to marry was love: "Were there any motives for not marrying?" She answered: "No, I can't think of any. And he explained: "When you married with just one point of view, 'I want to get married because I'm in love', you disregard all these other things that could make a marriage unhappy and unsuccessful. There is not a perfect freedom in your marriage consent, it's more of an impulse when you married just with one motive and disregarding other motives that could deter you from the marriage. So the mattter of the consent is not perfectly free; that is what he's claiming, that there was a lack of due discretion. The point is that you have to prove the contrary". A revealing dialog...

C) Incapacity for assuming

            The rationale behind the third paragraph of c. 1095 is the psychic impossibility of fulfilling certain duties, and the consequent juridic invalidity of binding oneself to do so (cf. Communicationes 1975, 49). Judges have always been faced with the problem of drawing the line between psychic impossibility and moral difficulty, bearing in mind that, as the Pope has insisted, "For the canonist the principle is clear that incapacity alone, and not just difficulty, in giving consent... renders marriage null (AAS 79 1457). Here again, the divisory line would seem to be the point where a person has lost his freedom. Whoever is still free, even though in a reduced manner, cannot be said to be incapable; for he could still - precisely with difficulty - vary his choice. He is incapable when he cannot choose at all or cannot choose effectively; i.e. when his freedom of will has disappeared and he is powerless or determined.

            The Pope, speaking to the Rota in 1982, insisted: "As a result of sin, human nature has undoubtedly been unsettled and wounded. However it has not been perverted. It has been healed by the intervention of the One who has come to save and raise it to a share in the divine life. But it would in fact be to demolish it, if one were to hold it incapable of a true commitment, of a definitive consent, of a pact of love which expresses what it is, of a sacrament instituted by the Lord to heal, strengthen, and raise it by means of his grace" (AAS 74, 452). In other words, one must here combine christian personalism and christian realism, so as to achieve a balance between these two facts: human nature is weakened by sin; at the same time, within the economy of redemption, it is strengthened by grace. It is therefore never right for the ecclesiastical judge to evaluate capacity in merely human terms. A person cannot be held incapable, if their difficulties could have been overcome by making use of the supernatural means, especially prayer and the sacraments. As the Pope said to the Rota in 1987: "the failure of the conjugal union is never in itself a proof which shows incapacity on the part of the contracting parties, who may have neglected or used badly the natural or supernatural means at their disposal" (AAS 79, 1457 (emphasis added)).

            Character or personality defects are legion, and some defect or other is to be found in every single person. One question is the existence, appreciation and treatment of such defects, within the professional fields of psychiatry and clinical psychology. A very different question is that of their relevance with the juridic field, concretely in the handling of cases of matrimonial nullity.

            There are some important points here that should not be lost sight of. On the one hand, any science whose purpose is to study man's psychic life can only with difficulty be classified as "exact". Its conclusions, in the best of cases, offer no more than relative certainty, a view that gathers strength before the panorama of countless schools and currents of opinion within the psychiatric and psychological worlds, and the great differences they so often show regarding fundamental principles.

            On the other hand (and here we touch a key point already mentioned several times), psychiatric science and psychology inevitably reflect certain anthropological presuppositions. That is to say, they are colored by the basic view of man which they or their practitioners possess. It is evident that certain concepts or criteria which have to be central within these sciences - psychic health or normality, the development or "realization" of the person, etc. - correspond necessarily to presuppositions about the why and wherefore of man: his origin and his end. Since we Christians have a very concrete and clear anthropology, we must know how to evaluate - in the light of that christian anthropology - every judgment about the innermost aspects of human personality. Today this is a duty of special importance in the practice of our ecclesiastical Tribunals. We could recall again how John Paul II, in his 1988 Address to the Rota, made special mention of this: "whatever be the definition given by psychological and psychiatric sciences, it must always be verified in the light of the concepts of christian anthropology which underlie canonical science" (AAS 80 (1988) 1180).

            Not a few psychological assessments of human personality seem to work from a standard of self-sufficiency, with the total autonomy of each individual as the ideal. Within such a framework, to feel the need to find support in others is a sign of an unintegrated personality. I recall a case where the Expert held that the psychic difficulties undergone by the Petitioner arose from "une certaine prolongation du conflit oedipien, aggravé par une mauvaise élaboration de la phrase dépressive. Il faut savoir que la phase dépressive bien intégrée confère au Moi toute sa stabilité et sa capacité d'assumer son autonomie et sa solitude. Mal intégrée, elle entraîne une dépendance à l'autre, un besoin de s'appuyer sur lui". According to this analysis, a stable or mature personality is shown in acceptance of one's solitude and establishing one's autonomy from others, while the need to rely on others is a sign of lack of personal integration. Such an analysis does not correspond to a christian view of man (cf. Sent. coram Burke of Nov. 5, 1992: in Studia Canonica 27 (1993), 486-496). Maturity so understood - as total autonomy and self-sufficiency - involves the development of a psychological approach that will almost certainly make a happy or successful marriage impossible.

            Great damage can be done - is being done - to the marital relationship by marriage counselors who are imbued with certain modern psychological theories of self-realization by means of self-assertion, and who propose a secularized view of the married relationship as a balancing of personal rights between two people imbued with the spirit of individualism, who inevitably become engaged in an "power-struggle" that can only end badly (In more than one case coming to the Rota, the Acts show how a marriage counselor, working on occasions for Catholic agencies or dioceses, has precipitated a marriage break-up by insisting on self-assertiveness as the norm of married union or, even more amazingly, as the remedy to marital problems).

            Space allows only a few further remarks on certain issues connected with c. 1095: problematic issues created not by the clear juridic norm itself, but by the way the canon is at times applied. As I said in my opening chapter, I do not doubt that there are many more null marriages today than in past times; and if the nullity can be proved, it is important - for the good of the individuals and for the public good - that such unions be declared null. Nevertheless, according to human and ecclesial logic, invalid celebrations of marriage will always be a small minority. A null marriage is an exception. And much more of an exception are null marriages because of consensual incapacity.

            There is a point here that might be briefly mentioned. It would be naive at the least not to realize the effect on a person of the declaration that he or she was psychically incapable of contracting a valid marriage. I see this frequently in cases that come to the Rota. Persons who during the instruction of a case admit to having defects, but insist that there were nevertheless normal; and yet at the end are declared abnormal. Persons who, after an affirmative decision on psychic grounds, write letters - to the local Courts or to the Rota itself - complaining bitterly against the declaration that they - the person himself or herself, or their partner - had labored under some grave psychic defect.

            I do not say that such complaints are always justified. There are persons who will oppose a declaration of nullity however well grounded it may be, considering it something personally offensive or ecclesially scandalous. Such people should be treated with patience and charity; but their protests need not be much cause for worry, if one possesses the moral certainty that the declaration of nullity was the result of a process thoroughly carried out, and of a sentence inspired - in the light of christian anthropology - on the clear norms of the canons and on well-tried doctrine and established jurisprudence.

            What gives cause for worry are those complaints which appear not to be without foundation, for they refer to sentences where nullity has been declared on totally trivial and insufficient grounds: based probably on the comments of a psychologist regarding some minor nervous condition or characterial defect or immaturity, as if this in common sense (juridical or otherwise) can be considered a grave anomaly; and in particular without any indication of what is the essential marital obligation for which the person was considered incapable.

            The complaints come mostly from the other spouse, who strongly resists the declaration, and not infrequently from relatives and others. They also come, in the case of long-standing marriages, from the grown-up children of the union. At the Rota one frequently reads letters from the children of couples whose marriage of 20 or 30 years standing is up for judgment before an ecclesiastical court. Their reaction, at the prospect of their parents' marriage being declared to have never existed, is that - if so - then they were born of the union of two persons who were never really husband and wife. Despite the assurance of tribunals that canonically they are nevertheless considered "legitimate", their own existential analysis is of course correct. The point has to be made and considered for, even if in itself it provides no legal argument for our courts, it does reflect peculiar aspects of the human and social problems which accompany the annulment phenomenon.

            At times the complaints are carried further, being presented by persons who feel embittered or cynical, perhaps to the point of leaving the Church, rather than go along with what - so they claim to see it - is a sort of "playing games with reality". Not so long ago the "New York Times" carried an article by an ex-Catholic whose marriage, of twenty years duration, had been declared null. She wrote that she still believed in the indissolubility of marriage but no longer in the Catholic Church, which she had left for a fundamentalist sect where she found more sincerity. In her opinion a whole framework of "virtual reality" is being built up in the Church, in the field of marriage nullity, where the tendency grows - on the part of those so inclined - to abandon themselves to easy deception, thinking they are moving in the real world, while in fact they are working and living off fiction: the fiction that what was a perfectly real marriage never existed (cf. "The Never Wife": New York Times Magazine, August 21, 1994).

            Am I being anti-annulment here? No. As I said earlier, no one can in justice be held bound by a bond that never existed. And so, as a judge I am necessarily and wholly in favor of declarations of nullity, as often as the evidence gathered provides moral certainty that no bond was established from the start. I am not proposing arguments against such declarations, but do hold that they should be petitioned and made on relevant and substantial grounds. It is possible (though, I think, unlikely) that the situation is different in the many cases which receive two Affirmative decisions at first and second instance, and are therefore in principle concluded [4]; but over ten years at the Rota, I have never received a case from the English-speaking world which was not proposed in terms of consensual incapacity. I doubt that this corresponds to reality, and my doubts are based also on a conviction that there must unfortunately be no small number of marriages today that are null because one or both of the parties exclude indissolubility or offspring.

            This, it should not be overlooked, could reflect a situation where actual harm is being doing not only to "abstract" justice, but to the very party or parties who seek a declaration of annulment. I know of tribunals which have been approached by a party who alleges nullity on the grounds, say, of exclusion of children, and has been told to sit down and rewrite the petition in terms of consensual incapacity. This may make an affirmative decision improbable, at least on the final level of appeal. It may also make the instruction of the case on the proper grounds much more difficult, due to passage of time, to the death, disappearance or non-collaboration of witnesses, etc.

            The impression seems current among some tribunals that c. 1095 should be favored because it offers grounds that are "easier" to handle. To me it seems, quite to the contrary, that the demonstration of consensual incapacity (if the terms of c. 1095 are seriously held to) poses far greater difficulties, in the way of proof, than are normally met in cases of simulation.

            Moral certainty about the nullity of a marriage on the grounds on defective consent is never easily attained, for it means a present pronouncement on the validity of an internal act placed at some past time (five, ten or twenty years ago). The judicial evaluation of external facts is seldom free from difficulties; but if the fact to be judged is internal, the difficulties are immensely increased. The proof of simulation, for instance - as any judge of experience knows - , is seldom easy. Surely - if one weighs the question from any serious juridic viewpoint - , the proof of consensual incapacity is much harder still.

            When a case is tried on grounds of simulation, an affirmative decision depends on the proof of a deliberate exclusion by at least one of the parties of some essential property or element of marriage. As we have seen, this proof normally hinges on the "confessio simulantis". This is natural, since the alleged simulator is the only one who can truly know his or her own real mind at the moment of consent. A judgment in a case of simulation is a decision about what a person actually intended, given on the basis of his or her statements and in the light of the rest of the evidence [5].

            Now the case of consensual incapacity has some points of similarity with simulation, but other very noticeable points of dissimilarity. Under c. 1095 too, the Court has to judge, after the passage of perhaps many years, an internal mental state at a specific moment in the past. In other words, it has to reach back in time so as to establish with moral certainty what really went on inside a person's psyche at the moment of consent. That is the point of similarity. The point of difference is that the Court, when dealing with c. 1095, has to establish not what the party consciously and really intended (a true marriage or not), but his (unconscious) incapacity for choosing what he actually intended. The simulator is alleged to have intended a non-marriage. The incapable person is alleged to have intended a true marriage; indeed to have been convinced that he or she was entering a true marriage; but, for reasons of which he or she was unaware, to have been incapable of so doing.

            Therefore, if seriously evaluated from a juridic viewpoint, the grounds of consensual incapacity offer notable difficulties and should be considered anything but "easy". It is certainly different if there exists a clear pre-marriage medical history of psychic anomaly, involving some form of psychiatric treatment, or if the party, shortly after the marriage, begins to show symptoms of some grave psychopathology. If neither of these conditions is fulfilled, it becomes extremely difficult to attain genuine moral certainty about the existence, ten or twenty years ago, of such an abnormal disablement as incapacity to consent to marriage (cf. C. Burke: "Some reflections on canon 1095": Monitor Ecclesiasticus 117 (1992-I), pp. 138-139).

            Just as I am in favor of nullity being declared when the grounds and conditions proposed by the Church's law are sufficiently met, I am certainly against annulments declared on trivial grounds. My reasons are not just juridical, but also ecclesial and anthropological. Just as I am not anti-annulment (where the right to a declaration of nullity is established), so I am very much pro-marriage; in favor, that is, of the right to marry (cf. c. 1058) and of the right to remain married. And I am quite convinced that loose tribunal practice (with "easy" declarations of nullity that do not correspond to truth or justice) has deeply negative effects on the fundamental ecclesial right to marry, and on the accompanying "moral" right to know oneself truly married and to have some assurance that one's married commitment will be able to count on support, when needed, from pastors and people.

            However absurd the suggestion might seem, there are not a few areas where it would only be honest on the part of pastors there to warn young people preparing for marriage: "Think twice. If both of you (or just one of you) get tired of the marriage, then - as things are right now in our area - he or she will almost certainly get an annulment by simply claiming to have consented without due thought, or foresight as to characterial differences, or sufficient preparation for the duties of married life".

            Let me anticipate the accusation that I am here defending the right to "remain married" of people who do not consider the bond between them to be valid, or certainly do not want it to be held so; and thus I am defending a right that they, the parties most involved, do not want defended. But is this always the attitude of the parties? I do not think so. My experience is that in very many cases (in the majority, I would suggest) when a breakdown first threatens (a separation or divorce or nullity not having yet been broached), it is one of the partners who wants to "opt out", while the other (and certainly the children, if there are any) wants the relationship to continue. That is the moment to be concentrated on. Those are the cases that are most worrying - if they are neglected, without suitable pastoral help being given. And those too are the cases that can most often be remedied if such help is there.

            Who marries wanting an eventual breakdown? People want their marriage to succeed. To favor this end should evidently mould the mentality and practice of all involved in the directly pastoral field. But there is also a serious obligation on those engaged in legal work to keep it as a reference point, without detriment to their ultimate ecclesial mission. The Code itself emphasizes this: "Before accepting a case and whenever there seems to be hope of a successful outcome, the judge is to use pastoral means to induce the spouses, if at all possible, to convalidate the marriage and to resume conjugal living" (c. 1676). The possibility of a declaration of nullity always remains; but it is the last resort to be investigated. Yet at the Rota we see not a few cases where, at the very outset of difficulties such as are inevitably going to arise in any marriage, to petition for nullity was immediately proposed as the first "solution", and that by diocesan marriage counselors or tribunal officials. Such advice shows neither true pastoral concern nor proper juridic responsibility.

            In such cases, what disquiets me is not so much the failed defense of an "institution" as the failure to defend persons, by providing them readily and positively with the advice or help they need, precisely when they are first tempted to abandon the ongoing marital challenge of the mutual giving-accepting to which they once freely committed themselves, and of the persevering fidelity, on which their truer "good" and happiness depend (cf. C. Burke: "Matrimonial indissolubility and the rights of persons": Homiletic and Pastoral Review, April 1988, pp. 27-52).

NOTES

[1] God calls most people to marriage; it is therefore the way God wants for the great majority. To be incapable of choosing marriage is therefore an extraordinary phenomenon, for it implies being excluded from God's ordinary way.

[2] "Difficillime, morali cum certitudine, constare potest contrahentem iam tempore nuptiarum incapacem esse exsequendi officia substantialia coniugalia, nisi iam tempore celebrati matrimonii ille laboraverit gravi omnino nevrosi, in animo iam altissisimis inhaerente radicibus": c. Anné, Apr. 15, 1975: vol. 67, p. 291; cf. c. Massimi, Nov. 20, 1931, vol. 23, p. 464; c. Sabattani, Feb. 24, 1961: R.R.Dec., vol. 53, p. 120; c. Serrano, Apr. 30, 1974: vol. 66, p. 313; c. Anné, March 22, 1975, vol. 67, p. 184; c. Raad, April 14, 1975, vol. 67, p. 246; c. Pinto, Oct. 28, 1976, vol. 68, p. 387; c. Davino, in una Burdigalen., May 18, 1977, n. 4; c. Lefebvre, Jan. 21, 1978, vol. 70, p. 48; c. Di Felice, March 14, 1979, vol. 71, p. 97; c. Bruno, April 18, 1980: vol. 72, p. 275; c. De Lanversin, Jan. 20, 1981: vol. 73, p. 25; c. Ewers, April 4, 1981: vol. 73, p. 221; c. Pompedda, Feb. 19, 1982, vol. 74, p. 91; c. Jarawan, June 19, 1984, vol. 76, p. 371: c. Giannecchini, June 26, 1984, ib., p. 393; c. Funghini, in una Toletana in America, April 29, 1987, n. 2; c. Serrano, Oct. 29, 1987: vol. 79, p. 582; c. Boccafola, in una Jolietten. Dec. 13. 1989, n. 13; c. Doran, May 17. 1991, vol. 83, pp. 306-307; c. Bruno, July 19, 1991, vol. 83, p. 466, etc.

[3] "Even if, technically speaking, these Addresses do not offer an authentic interpretation of can. 1095, they nevertheless belong to the ordinary magisterium (cfr. can. 752), and reveal the mind of the Legislator himself in the matter": Letter of Feb. 12, 1992 of the Apostolic Signatura to Cardinal Bernardin of Chicago (Prot: 22259/90 VT). The Signatura constantly cites these addresses to the Rota as normative. Some rotal sentences have held them to be de facto, if not technically, authentic interpretations: cf. c. De Lanversin, Feb. 3, 1988: vol. 80, p. 69; c. Stankiewicz, Feb. 27, 1992: vol. 84, p. 109.

[4] unless one party appeals to the Rota and can produce new and serious arguments for reopening the case.

[5] It is true that nullity can be declared in the absence of the "confessio simulantis", and even despite a firm "negatio simulantis" on his or her part, provided that the rest of the Acts place the fact of simulation beyond reasonable doubt. But even in this rather infrequent case, it remains clear that the judge, in the light of the facts and proofs adduced, is deciding what was the true mind of the person at the moment of giving consent.