Sentence of June 18, 1990 (Cork) (c. 1095, 2)


            After more than three years of courtship, with a formal engagement in Dec. 1971, Mary and Desmond were married on March 31, 1973. He apparently had some hesitations at the approach of marriage; but there was no pressure from either family, and the wedding seemed happy. However, he almost immediately showed an attitude of neglect to her which, after some three months when she expressed suspicions to him about another woman, intensified into one of rejection. Before a year from the wedding had elapsed, Mary returned to her parents' house, while Desmond left for Canada. In the following years, however, the parties were reconciled at least twice and had a child together; these facts came to light only in the present third instance.

            In any case, Mary petitioned the Tribunal of Cork in Feb. 1975 to have the marriage declared null on the grounds of a lack of due discretion of judgment on the man's part. On Sept. 26, 1977, the Cork Tribunal gave an affirmative sentence. The Defender of the Bond then appealed directly to this Apostolic Tribunal which was subsequently confirmed by the Apostolic Signatura as absolutely and exclusively competent in second instance. The rotal Turnus, coram Agustoni, admitted the case to ordinary examination on Oct. 27, 1978. After this rotal Decree however, the Petitioner, who had been reconciled with the Respondent, remained inactive. So, on Jan. 9, 1981, the case was declared deserted. Only on March 3, 1985, at the request of the Archbishop of Cashel, was the case opened again. On July 15, 1986 the same rotal Turnus gave anegative decision as regards the lack of discretion in the man. The Petitioner appealed to the next following Turnus, which formulated the doubt on April 28, 1987, without any word from the Respondent even though he had been several times cited by Edict. In this third Instance, the Respondent's brother was examined as a new witness. The Ponens having being appointed to the episcopate, the Turnus, with a new Ponens, was reconstituted on Oct. 9, 1989.


2.         There are few things more proper and natural to man than the "conjugal instinct", or the tendency to marry. Marriage in fact is the normal aspiration as well as the genuine vocation of the vast majority of men and women, with few exceptions. As a result, there exists a natural right to marry (cfr. c. 1058). 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. It is obvious too that the incapacity in question must regard the essential aspects of the conjugal commitment; not merely its incidental aspects, and less still other aspects of human life.

            Thus the Church's law states: "They are incapable of contracting marriage: ... who suffer from grave lack of discretion of judgment concerning essential matrimonial rights and duties which are to be mutually given and accepted" (c. 1095, 2º); and "who are not capable of assuming the essential obligations of matrimony due to causes of a psychic nature" (c. 1095, 3º).

3.         Natural law, as we have noted, requires that the causes of consensual incapacity be grave. Canon 1095 states this expressly in relation to a possible defect of discretion of judgment. If there were any doubt that the "causes of a psychic nature" mentioned in n. 3 of the canon must also be grave, this has been 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, 1987, p. 1457); "... only the more serious forms of psychopathology are capable of undermining the substantial freedom of the person" (AAS, 1988, p. 1182).

            "Man after all is not completely corrupted by original sin; and besides marriage is open to any person. It is therefore to be presumed that conjugal obligations are such as can be fulfilled by any man or woman... Man must generally be considered fit for contracting matrimony. Therefore incapacity must be regarded as something extraordinary" (M. Pompedda: "Incapacitas Adsumendi Obligationes Matrimonii Essentiales" Periodica (1986) pp. 138-140).

4.         These principles have been consistently maintained by the mainstream of rotal jurisprudence throughout the years. "Nor is it enough, in order to exclude freedom, to show that someone suffered from some mental illness; it must be proved that, in view of the gravity of the illness, he could not give consent" (c. Massimi, Nov. 20, 1931, RRD, vol. 23, p. 464).

            "Regarding proof, it is not sufficient to show the existence of some particular mental disease. The relation between that disease and marital consent must also be demonstrated. The illness must have existed at the moment of the contract, and its gravity be such as to impede or make impossible the giving of valid consent" (c. Bejan, Oct. 28, 1970: RRD, vol. 62, p. 947).

            "A mere psychopathy, which is not a real disease, does not per se render the person suffering it incapable of eliciting valid matrimonial consent" (c. Di Felice, Dec. 12, 1970: RRD, vol. 62, p. 1153).

            "Not every defect of balance or maturity is enough to induce the nullity of matrimonial consent; this can only be brought about by a defect such that it makes the contracting party incapable of a free choice or of assuming the essential obligations and in particular the three «bona» of marriage. Marriage cannot be considered as the crowning of maturity already acquired, but rather as a step in the process by which fuller maturity is to be attained" (c. Pompedda, July 3, 1979: RRD, vol. 71, p. 388).

5.         A lack of consensual capacity for marriage implies such a grave handicap in human nature that it cannot be lightly attributed to anyone. On the contrary, it must be strictly proved, and the main proof must be provided by the facts established during the hearing of the case. This means that the Judges, having duly considered and weighed the Acts, must find in them irrefutable proof of gravely abnormal behaviour - at the time of the wedding or before it - on the part of the party concerned; and they must further be able to reach moral certainty that such abnormal behaviour showed a grave underlying pathological condition, present at the moment of matrimonial consent, which made the person incapable of consenting validly.

6.         An expert professional opinion or "peritia" is no proof, in itself, of consensual incapacity. It is, at most, an analysis of certain factors or symptoms made from a professional-technical point of view. The expert's opinion, given "in order to establish some fact or to clarify the true nature of something" (c. 1574), can frequently provide the Judges with an explanation of some obscure point, and so help them reach a decision. In other instances, the Judges may conclude that the particular analysis of certain points made by the expert does not square with their own overall analysis of the evidence. The Code expressly indicates that the acceptance or rejection of the expert's conclusions is up to the Judges (cfr. c. 1579, § 2).

            If a Judge sees that the Acts clearly offer no indication whatever of any grave abnormality or defect, then he can dispense with the services of the expert, since they would be to no purpose. "In cases of... defect of consent due to mental illness, the judge is to use the services of one or more experts unless it is obvious from the circumstances that this would be useless..." (c. 1680).

7.         In many cases nowadays the "evidence" adduced for consensual incapacity is simply a series of slight character or personality defects which can be found in anyone, and which must therefore be considered to fall within the range of "normality". As any prudent person can conclude, defects such as these do not cause matrimonial incapacity. In such cases therefore, the Judge has obviously no need to supplement his own prudence with that of an expert. His very appointment as a Judge is a sign that he is considered to have special expertise in making prudential judgments. Indeed if he lacked the capacity to decide an ordinary case with common prudence, he would not be qualified to be a Judge.

8.         While on this point, we should bear in mind the words the Pope addressed 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 aforementioned 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, 1988, p. 1181).

9.         Mere symptoms of what could be a "common" neurosis do not point to incapacity for consent. An acceptable definition of a neurosis could be: "Condizione di sofferenza della psiche, di natura assai varia, che si manifesta con ansia, irritibilità, fobie, ossessioni, compulsioni... ma non intacca i processi intellettivi né deteriora la personalità nel suo complesso" (Vocabolario della Lingua Italiana, Istituto della Enciclopedia Italiana, Roma, 1989, vol. III); or: "a relatively mild mental disorder, characterized by hysteria, anxiety, or obsessive behaviour" (Collins English Dictionary, London, 1986).

            The various compulsive and obsessive ideas that afflict some neurotic people can nullify marital consent only if they are so severe as to necessarily destroy freedom of choice - with regard to marriage. If the Judges, after studying the Acts, see signs of what could be a severe neurosis - in the precise sense indicated - then indeed they should seek an expert opinion. If, however, they have no doubt that the neurosis is relatively mild (with "symptoms" which are merely character traits or defects common to many people), or that it has no bearing on marital consent, then they can quite properly decide that there is no need for a peritia. This is in fact what the Judges did in the rotal sentence which has been appealed to us: "But where the Acts in no way give reason to apprehend the presence of the alleged abnormal condition in the party, it is not just the Judge's right, but his duty to omit calling in an expert. Causes are to be instructed or built up, not on probabilities or hypotheses, but on the facts and circumstances related; not on desiderata but on the truth" (decision of July 15, 1985, coram Agustoni).

10.       Further, it must not be forgotten that consensual incapacity under c. 1095, 2º and 3º arises only when the grave psychopathology in question relates to the essential rights/obligations of marriage. In a case, therefore, where there may be some indication of the presence of a certain psychopathology, even of a grave nature, but one which evidently relates in no way to the essential rights/obligations of marriage, a "peritia" can also be dispensed with. It is not clear how an inferiority complex, for example, or claustrophobia or agoraphobia or kleptomania, even if diagnosed as grave, could incapacitate a person in respect of these essential matrimonial rights or obligations.


11.       A case may seem simple in First Instance, especially if only one side of the argument has been listened to, and that without much depth. In its progress to Third Instance, the present case has acquired or disclosed elements which indicate a matrimonial issue of considerable complexity. Certain facts have come to light for the first time in the most recent instruction: the reconciliation of the parties in 1976-1977, while the First Instance hearing was still in progress, or even possibly after the declaration of annullment; their briefly living together in Canada at that time, but also in Ireland for a period of up to 6 months, as a result of which a child was born to them (Supplementary Acts, 36a-37); facts which must also be considered in the light of the judicial inactivity of the Petitioner over a period of seven years, from 1978 to 1985. One wonders if the indications of c. 1676 were properly observed before the case was accepted for hearing. Even after it had begun, a more thorough judicial instruction in its initial stages might have suggested renewed use of the pastoral means recommended by the canon to bring about the restoration of conjugal life; the subsequent history shows that this would not have been without some hope of success.

            It is possibly too late for this now. In any case, despite the deficiencies of the case, we consider that we are now in possession of sufficient information so as to arrive at a decision.

12.       The absence from the trial of one of the parties tends to result in a one-sided version of the case, which always makes it more difficult to arrive at the truth. It is hard to avoid the impression that, with greater diligence on the part of the Tribunals, a much-needed deposition could have been obtained from the Respondent. As the Acts show, he was visited by a member of the Toronto Tribunal; and seemed to be prepared to answer questions, if given "more time to think about the matter"; but Toronto did not follow it up (Acts, 22-23); nor were they apparently urged to do so by the Cork Tribunal.

13.       The Petitioner's plea is indeed simple: that the conduct of the Respondent became completely strange and even violent immediately after the wedding; and that only a pre-marriage condition of grave lack of discretion can explain such behaviour. The difficulty with this argument is that the evidence of any serious pre-marriage abnormality is, practically speaking, non-existent.

14.       The strongest and most direct testimony (against her own case) comes from the Petitioner herself, who is quite explicit that she saw in him no pre-marriage expressions of abnormality, noticeable immaturity or particular violence of character. She testifies that given their three and a half years of courtship, "I thought I knew him very well" (9/14); and found him "quite normal" and reasonable during these years before marriage: "nothing unusual" (10/23). She replies negatively to questions about his possibly being emotionally immature, foolish or imprudent in his judgments (12/41-46). Asked "Did Desmond's general behaviour strike you at times as being abnormal, during the time of your courtship?", she replies flatly: "Nothing abnormal: just he had a temper" (ib. 12/47); she testifies she knew nothing of any mental illness in his background (ib. 13/54/55).

            Asked whether he regarded marriage as a permanent commitment to live together for life and bring up a family: "I had no reason to believe that he had not this attitude" (11/33). To the suggestion that he might have married her because of her good job and inheritance: "I think he married me as a person. The job and the farm didn't enter it" (11/34).

15.       Particular weight must be given to the evidence of his parents, who appear as witnesses for the Petitioner. His mother, PB answers negatively to questions about whether he was immature, childish, imprudent, or abnormal (34/18-21) as does his father (ib. 39-40/18-21).

            In Third Instance, his younger brother says that apart from some expressions of selfishness and bad temper, "there was nothing that I witnessed personally that I could describe as odd... He is an intelligent person" (SA 30).

16.       Those witnesses who give a negative judgment about his character, do so in generic terms, referring to simple faults of personality.

            GOB (the Respondent's lifelong friend) says he was always a bit "giddy"; "impulsive". This witness, like Rev. Gl., answers Yes to (leading) questions about his being "emotionally immature"; and "abnormal"; but specifies nothing more than "highly strung and hot tempered" (25; cf. 30).

            SB, his cousin and particular friend from the age of 15 (44/11; 50 in medio), and partner in business at the time of marriage, testifies that his first impressions were that he was a "friendly kind of character, very good-willed - very gay and of lively temperament"; but then realised "he definitely lacked responsibility" (ib. 44/14). When asked "Did his behaviour strike you at times as being abnormal?", he replies yes, adding, "mostly in doing childish things that would not appeal to me..." He feels the Respondent to have been immature and sometimes imprudent, especially through making fast business decisions without what he regarded as proper consideration (ib. 45/18-20).

            MH, her mother thought he was not suitable for marriage: "too giddy" (54); "unbalanced" (ib. 58). But we should note that the same witness says that her daughter too was "a bit unsettled" just before marriage (50).

17.       Much is made in the First Instance Sentence about the violence of the Respondent's temper. But, again, the evidence is not univocal about this. The Petitioner, asked if she saw his "faults of personality" during the courtship, replies: "he was highly strung... He had a temper. He also had to get his way..." (11/35); yet immediately afterwards she says: "he wasn't moody: he was even tempered" (ib./39; cf. 12/48). His mother says he would easily lose his temper but quickly find it again (34/22), which the Petitioner tends to confirm (ib. 10/17).

            His brother speaks in Third Instance of his violent outbursts of temper both before and during the marriage. But he does not know of any incidents of physical violence towards the Petitioner before marriage, or of anyone suffering physical injury as a result (SA 32/10).

            We do not think that excessive weight should be attached to this point. The only real incidence of what seemed to be senseless material violence was at Christmas after the marriage, when he broke into his parents' house and performed some rather childish acts of vandalism. One of the early Judge instructors (who later became the Defender of the Bond) offers an explanation for that which tends to lessen its unreasonable nature.          His Christmas behaviour was inspired by a desire for revenge, because "he had asked to be allowed in home for Christmas (he was living in a caravan) and threatened to give a 'present' if he wasn't" (112).

18.       The Petitioner and practically all the witnesses testify that both parties seemed happy on the wedding day (14/68-69; 31/29; 35/29; 40/29; 46/29). Her mother suggests that love on the Respondent's part had lessened before the wedding (53 in medio), but this receives no support from other witnesses. Clearly, even if the suggestion were founded, while it might support a plea of simulation, it would provide little argument for grave lack of discretion (cf. the rotal Sentence appealed: SA 19, n. 11).

19.       Summing up the evidence so far: we see nothing to indicate, much less to prove, any serious abnormality or grave lack of discretion, on the Respondent's part, at the time of the wedding. It should be noted that the Petitioner expressly states that only after the wedding did she see signs of what she considered abnormality. Asked, "How long after the marriage was it what you first noticed anything abnormal about Desmond?", she replies, "Straight away" (15/81). Asked further, "What did you notice?", she answers: "He didn't want to come to my house on Wednesday. He did not want to go to Mass; he didn't want to tag along with me at all" (ib. 15/82). She gives some further details: her suspicions that he had recourse to another girl during this period; his leaving the house; his violence and assaulting her. Asked, "To what did you attribute his strange actions at that time: to lunacy or to maliciousness? To what would you attribute them now?", her answer is clear and important: "He wanted to be malicious. I never thought he was mad. And I still think that" (ib. 17/97).

20.       The Petitioner testifies therefore to a sudden (and, to her, serious) change in the Respondent's behaviour after the marriage. But it must be said that the suddenness, extent or gravity of any change is not borne out by the witnesses.

            Particular interest must attach to the testimony of his cousin, SB, who was also his business partner and with whom moreover the Respondent stayed right from the time of marriage to his leaving for Canada, about one year later. Asked if the marriage seemed happy, he replied: "Yes, for about 2 or 3 months" (46/32-33).

            His mother states that for a month or more before the marriage "he seemed to be troubled or unhappy" (34/14); and later, "the strain he seemed under before the marriage got worse after the marriage" (35/36). SB saw some change, in terms of lack of responsibility, in the time before the marriage: but, as his partner, saw it "more with regard to his work than to his marriage... (44). The cause of this strain (marriage?, business?) or its gravity is not clearly established.

            GBthinks that the marriage broke down because of the Respondent's selfishness (27/34); but asked specifically if he noticed any deterioration in the Respondent's behavior after the marriage, he replied: "I noticed no change" (27/36).

            In Third Instance, his brother, Tony, asked if he noticed anything abnormal about the Respondent after marriage, replies with a trivial point: "Perhaps the only change I personally noticed was that he tended to take her out less than before" (SA 36).

21.       The medical aspect. Both his father and mother testify that he had had no treatment for any serious illness of mental or other nature (36/41; 44/41). As we have seen, the Petitioner herself testifies in the same sense (13/54/55); and this is confirmed throughout the acts (ib. 27/41; 32/41; 41/41; 47/41; SA 37).

22.       The Petitioner admits that they had seen at least two doctors (one a psychiatrist), both of whom found him to be normal: "From my story Dr. O'D thought he was certifiable; but when Dr. O'D saw him he thought he was normal" (17/98), and she adds: "This I was not prepared to accept" (32/43). "We had been to Dr. O'H earlier, but Dr. O'H could see nothing wrong" (ib. 17/104). The third doctor, Dr. F, "saw things completely differently" and advised looking for an annulment (ib. 18/105).

            Three doctors, then, were consulted about the Petitioner's condition, at the time of the crisis in the marriage, and the Acts show that only one thought he had a pathological condition. The Court of First Instance ignored the opinions of two doctors who thought him normal, and in fact their reports are not in the Acts. The Defender of the Bond of First Instance complained to the Court about this omission (122), which is judicially undefensible.

            Dr. F's "Psychiatric Report", which consists of a one page letter, was rejected by the previous rotal Sentence; and the expert appointed in Third Instance says it is not a true "peritia" (SA 48). It is greatly to be deplored that the First Sentence accepts this doctor's opinion uncritically, all the more so when he was not appointed as a court expert, but simply made up his "report" at the Petitioner's request.

23.       The rotal Judges in the previous instance saw such a total absence of any proof of grave abnormality in the Respondent, that they felt no need for an expert opinion in Second Instance. In view of other circumstances of the case, we have preferred to have a court expert. Our peritus, Professor Diego de Caro, evaluates thus the so-called "expert opinion" of First Instance: "il Tribunale ha assegnato dignità di perizia ad una semplice (e alquanto banale) dichiarazione medica del Dott. F, il quale visitò anni prima il convenuto"... The judges "si sono imbarcati in una lunga disquisizione sulla «paranoide» e sulla «paranoia» (confondendo invero le due forme), and so conclude that he had a "personalità psychopathica"... "A parte il fatto che i Giudici non dovevano entrare in questi particolari diagnostici (in un settore che presenta gravi difficoltà anche per gli specialisti), è certo sindacabile il fatto di essere partiti da un giudizio espresso da un perito che non è un perito, che ha presentato una relazione che è tutto meno che una perizia psichiatrica" (SA 53).

24.       Then he clearly states that there is no basis, in the Acts, for any certain diagnosis of a serious lack of discretion on the Respondent's part at the moment of consent. "PRIMA DEL MATRIMONIO non esistono agli Atti elementi tali da giustificare un giudizio che faccia riferimento ad eventuali suoi difetti, di sviluppo intellettivo o psicoemotivo ...: a quanto pare esisteva in lui uno scarso interesse verso l'attrice ed una certa tendenza a «trascurarla». E' troppo poco evidentemente per attribuire al soggetto una vera incapacità a comprendere la gravità del legame che stava per assumere" (SA 55).

25.       To the key question put to him - "Esistono sufficienti indizi per giudicare se si tratta o no di una malattia psichica... [e] di quale gravità ... al momento del consenso?" (SA 43) - , all he says is: "Si può ritenere che i comportamenti manifestati dal convenuto DOPO IL MATRIMONIO possano rientrare nel grande gruppo delle PSICOPATIE... Sulla «gravità» di tali disturbi mancano negli Atti sufficienti e convincenti punti di referimento..." (ib. 58).

26.       In trying to come to an understanding of the breakdown of this marriage, perhaps we should turn to the explanation offered by the Petitioner herself. As we have seen, she was quite sure that what she thought to be a sudden change of attitude in the Respondent, was due not to any psychic illness, but to malice: "He wanted to be malicious. I never thought he was mad. And I still think that" (17/97).

            Simulation - a deceptive mode of behavior - can at times be most easily explained by human malice (cf. c. Ewers, June 10, 1968, RRD, vol. 59, p. 452). A change of behavior can also no doubt proceed from malice. In either case, malice shows a wrong use of discretion, not a lack of it. Even then, however, the appearance of malice itself requires an explanation. We need to look further if we are to find one, in the present case.

27.       SB who, as we have seen, was specially close to the Respondent during the critical first year of the marriage, is the only one to provide some sort of reasonable key to the change in his character. "Suspicion, as far as I can know, was the cause of it all, and his lack of responsibility" (ib. 48/46). He thinks that the mutual suspicion of both parties, intensified on her part by his mother's interference, explains the abnormal behaviour in the Respondent that developed after marriage towards his parents and wife: "he showed them lack of respect - he was not like that with other people - it was brought about by accusations based on suspicions, some of them false, made against him by his mother and wife. That they watched him and kept him under great suspicion aggravated him very much" (47/42). And he concludes by saying both had defects, but the marriage could even still work out if they were left alone, without interference.

28.       It is moreover principally to her suspiciousness that the witness attributes the breakdown of the marriage. "Primarily suspicion on both their parts... she more than him" (ib. 46/34). If we are to believe this witness, the Petitioner's suspicions about the Respondent having an affair with another woman were not founded (ib. 47/39). GOB, a life-long friend of the Respondent, who knew all his faults, says: "Mary never seemed to understand why he was behaving as he did" (28/43). As the Defender of the Bond says, in his long and perceptive animadversions (to which the Judges could well have paid more heed), "there is as much evidence of paranoid suspicion on her part as on his" (119).

29.       Having therefore considered all the aspects of the law and the facts, we Auditors of this Turnus... answer the proposed doubt:

            "IN THE NEGATIVE"

            that is, the nullity of the marriage has not been proved, in the case before the Court.

            The rotal Sentence, given on July 15, 1986, is therefore confirmed.


            Given in the Tribunal of the Roman Rota, June 18, 1990.

            Mario Francesco POMPEDDA

            Cormac BURKE, Ponens

            Kenneth E. BOCCAFOLA