Sentence of Jan 17, 1991 (c. 1095, 2 & 3)

[English version: Forum 2 (1991) 1: 117-131]


1.         Jessie B and Robert C, after an engagement lasting some two years, were married on - 1973, in - . Their married life was happy until the birth of their first son. The husband then became impotent, but recovered and another child was born in 1981.

            From 1982 on, frequent quarrels began between the two. They consulted several psychologists and marriage counselors, but things got worse. In 1984 Jessie insisted on a separation, followed by divorce.

            The Petitioner applied to the Tribunal of Joliet, seeking a declaration of nullity of the marriage. Evidence was given by both parties and witnesses, and the Court asked for an expert opinion. On June 11, 1987 an affirmative sentence was given on the grounds of "Defect of consent due to invalidating psychological factors, that is a lack of due discretion on the part of the Petitioner... [and] a lack of due capacity to assume and fulfill the obligations of marriage on the part of the Respondent".

            The Respondent then appealed to this Apostolic Tribunal. Free legal representation having been granted to both parties, the terms of the controversy were defined as follows: "Whether nullity of the marriage has been established due to a defect of discretion and to psychic incapacity in both parties (c. 1095, nos. 2 and 3)". Professor Diego de Caro gave a psychiatric opinion as court Expert. Having received the Briefs of both Advocates, as well as the observations of the Defender of the Bond, we must now answer the question before us).


2.         "A man before he has completed his sixteenth year of age, and likewise a woman before she has completed her fourteenth year of age, cannot enter a valid marriage" (c. 1083, § 1). As is evident, the basis for this norm cannot be the mere physical capacity of generating, which may be attained earlier. The point is rather that those who are younger than the ages given are presumed to lack the sufficient maturity of mind and will so as to dispose of themselves maritally. The canon therefore also gives rise to a certain presumption that once a person has attained the age indicated, he or she has the necessary psychic maturity to be able to contract validly.

            This latter presumption however can yield to contrary proof. The younger the contractants, the more possible it is that consensual incapacity, under c. 1095, 2, can be proved. Conversely, the older the contractants, the more the presumption of capacity tends to be confirmed. It must be remembered that both civil and canonical legislation have generally gone along with the thesis that people mature earlier today, or at least that they are entitled at an earlier age to exercise their natural, human and civic rights, among which the right to marry must be regarded as of exceptional importance (cf. the rotal judgment, coram infrascripto, December 2, 1987, n. 6).

3.         Formerly the presence of some form of psychic anomaly tended to be regarded as something quite exceptional, and also as a fact to be ashamed of. Contemporary society readily accepts that psychic ailments are almost as common as physical, and that, like physical sicknesses, they can be present in mild, moderate or severe degrees. This new realization is not really new to Christian anthropology which holds, as a fundamental view of man flowing necessarily from the doctrine of Original Sin, that each person suffers from some disturbance or lack of integration in personality. From the christian view, therefore, there is no one who is perfectly "normal", in the sense of never deviating from the norm of "ideal" or perfect harmony or inter-working between the different psychic faculties. Reflection verifies the truth of this. Is there any single person who goes through life without experiencing what may be rightly termed a personality disorder, however mild, in the form of some over-nervousness, some excessive anxiety, some slight depression, some obsessive idea? Such moments of psychic stress tend indeed to affect personal decision-making, confusing a person's intellectual grasp of issues and weakening his or her will or swaying it in a particular direction. But christian anthropology holds that a person working under these conditions remains basically free, within the limits of acceptable human normality. Only a gravely pathological condition could take away a person's freedom to the extent that any resultant decision can no longer be regarded as his or hers.

4.         Psychic anomalies, insofar as they may invalidate matrimonial consent, are dealt with in canon 1095. Those 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); "who are not capable of assuming the essential obligations of matrimony due to causes of a psychic nature" (c. 1095, 3º).

            In his 1987 and 1988 addresses to the Roman Rota, the Pope confirmed that consensual incapacity, whether under no. 2 or no. 3 of c. 1095, can only result from a grave psychopathology or psychic anomaly. "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" (Address of Feb. 5, 1987: AAS, vol. 79, 1457).

5.         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 are not 100% psychically well. 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.

6.         Post-marriage psychic difficulties - depression leading perhaps to attempted suicide - may be simple consequences of married life not going well. They are irrelevant as regards proof of consensual incapacity, if they cannot be shown beyond any doubt to be the result of some grave pre-marriage psychic condition that vitiated consent.

7.         Discretion under c. 1095, 2 relates to the essential rights/duties of the married state. It is untenable to argue that a person shows an invalidating lack of discretion in accepting to contract marriage with someone who is sick or disabled. While such sickness or disablement will no doubt impose particular burdens, it is part of discretion - the discretion of nature or of love - to be prepared to bear them. "It is natural for the human heart to accept demands, even difficult ones, in the name of love for an ideal, and above all in the name of love for a person" (Pope John Paul II, General Audience, April 28, 1982). If choosing to marry a sick person is always to be taken as a sign of grave immaturity of judgment, is that not to give excessive priority to the prudence "of the flesh" over that "of the heart", and, more importantly, to call into question the most intimate psychological processes of human love?

8.         It is equally unacceptable to suggest that being idealistically prepared to give, without thinking whether one will receive or not, is a sign of invalidating lack of discretion of judgment. It is part precisely of human nature and love to have an idealistic view of marriage, and of one's chosen partner. It would be verging on cynicism to wish to interpret this in terms of an invalidating defect of discretion. That way one would be turning what is a normal part of the psychology of spousal love into an incapacitating factor for the actual commitment to a spouse!

9.         The self-gift that characterizes married consent (cfr. c. 1057, § 2) underpins the conjugal call to love the other in self-donation and self-forgetfulness. Here one could note the damage that can be done to the marital relationship by marriage counselors who are imbued with certain modern psychological theories of self-realization through self-assertion, and who propose a secularized view of the married relationship as a balancing of personal rights in an atmosphere of individual self-assertion. This is the antithesis of the gospel view that sees self-fulfillment as something to be achieved through self-forgetfulness (whoever loses his life will save it...), and therefore understands the conjugal relationship essentially in terms of self-giving. As the Second Vatican Council says: "A love like that, bringing together the human and the divine, leads the spouses to a free and mutual giving of self..." (GS 49).

10.       Nevertheless one comes across cases of marriage counselors (some indeed working for Catholic agencies) who are deficient in christian psychology and anthropology, and insist on self-assertiveness as the norm of married union or, even more surprisingly, as the remedy to marital problems. Whereas the fact remains that the current secular tendency to self-assertiveness is just the opposite of love, dedication and self-giving; and so is one of the main enemies of married success and happiness.

11.       Here we could admit a distinction. If one can say that the over-concern to assert one's rights is a sign of immaturity and selfishness, the concern to "assert" one's obligations is a sign of maturity and generosity. Thus we could arrive at a concept of self-assertion which is not inimical to human relations, nor destructive of love and friendship. Within a christian anthropological context therefore, the only assertiveness that is acceptable in marriage is the concern of the husband to assert his masculine role, especially his masculine duties, and for the wife to assert her feminine role and duties. In this way their assertiveness becomes complementary and not reciprocally destructive.

12.       The successful development of the married community depends on the harmony achieved between two persons who stand in the relation not of friends or associates, but of spouses: of two persons therefore of different sex. When the man asserts his role as husband and father, and the woman, hers as wife and mother, then married and family life can show that dynamic and healthy complementarity that contributes to the growth and maturing of spouses and children. It obviously must not be forgotten that while husband and wife are equal in rights and dignity, their specific roles are not the same. Marriage is a heterosexual combination; and the most successful marriages tend to be those where the husband is most masculine and the wife most feminine.


13.       Certain facts strike one at the outset of this case. One is that it involves two persons with a reasonably high level of education, each of them having obtained a master's degree (Acta, 121-122). Their preparation for marriage had been marked by a engagement which extended over a period of four years, and which was both happy and morally very correct; a certain maturity can be presumed to underlie this long engagement, and to have been favored by it. Maturity would also seem to be shown in their planning to finish school (57/3), and their starting to build a house before marrying (57-58; 122/5). Having noted this, let us consider in more particular detail the evidence offered regarding the alleged consensual incapacity, due to grave lack of discretion, on the part of both parties.

14.       As regards the Petitioner: The Petitioner herself testifies to a having had a stable family background: "My mother and father got along well when I was growing up... I got along with my parents"; she similarly "got along well" with her brother and sisters (36-37). She had a normal emotional development, and showed good maturity in education and job: "I did fairly well, academically, in school... I have a Master's degree... My relationship with my teachers was good... I got along well with classmates" (37/2). "I can't remember any emotional or adjustment problems that bothered me" (38/3). "Prior to the marriage, I feel I was a very "up" person. I could see my way through my education, I had a job and I had friends" (39/6). She worked to pay her way through College (38/4).

            "There are no recurring fears that bother me. I have not been a nervous or anxious person. During these last few years, I have been nervous" (39/6). "My present opinion of my own maturity prior to my marriage is that I was rather naive... I believe I was immature in some areas, and mature in others... I believe I was stable in my thoughts and actions" (44/13).

            In marriage, she was a good housekeeper (58), capable in administering money (43-44; 54/12). They had two children; the Respondent thinks she would have liked to have had more (89/11).

            The Respondent says: "My former spouse was an excellent planner. She spent almost an entire year planning the wedding and reception" (86/9).

            The witnesses confirm this picture of a mature and responsible person. Her Presbyterian mother says that the Petitioner was "a very dependable person" (94); "Jessie's level of maturity and responsibility were very good because she took a lot of that during her home life" (97). Her only sister, Veronica, testifies to Petitioner's capacity for taking responsibility (106/3); as does her friend Maureen Dombrowski (115/3).

15.       As regards the Respondent: the Petitioner herself testifies to his intelligence and to the high esteem in which he was held by others. "Bob did will academically in school... I feel he had a good relationship with his teachers... I don't recall hearing of any disciplinary problems" (47/2). "Bob has a good reputation in the community. He is a fine teacher" (51/9). This weakens the force of what she later asserts: "I feel Bob was immature prior and during our marriage. He was unstable in seeing his own worth" (54/13). Her sister, Veronica, testifies: "He was a bright student" (106).

            There is evidence that the Respondent was a highly-strung person. This of course is a fairly common phenomenon among people, especially today, as are many milder forms of depression.

16.       As regards both parties: The Respondent says: "We were both ready for marriage, both financially and emotionally" (70/4); "As we got more serious we began making plans for the future. We seemed to be very secure in each other and in our relationship. We were not afraid that one or the other would get involved with somebody else if we didn't hurry up and get married. Our planning consisted of buying a lot, investing money, etc. We had talked over many aspects of the future and marriage was one of them. I don't know how a marriage could have been better planned by anyone" (85/6).

            He feels specifically that both were mature for the obligations of marriage, especially after a long courtship. "I really honestly don't believe we could have been better prepared for marriage itself" (87-88/12). One of her main witnesses, Maureen Dombrowski, testifies to the maturity of both: "Both Bob and Jess seemed to have a very high level of maturity and responsibility at the time of their marriage"... "they were both mature at the time of the marriage" (116/3-5). His mother asserts: "They both at that time seemed mature, being at ages - he 30, she 28" (129/5). THe Petitioner's sister adds: "Bob and Jessie appeared to be the perfect couple" (108/6-7).

17.       Conjugal relations were very good for a period of five years, according to the Petitioner's own account (56-59), which is confirmed by her mother (99) and by the Respondent's father (123/6). During this time, the Petitioner admits there were no real marital or relational difficulties. These started only with his intermittent impotence; and grew worse under counselling, when she, following advice to "assert herself", began to "react" against what she felt was his excessive selfishness.

18.       The case would seem to illustrate the damage that can be done by counselors imbued with psychological theories of self-realization through self-assertion which we referred to in the "In Iure" part. The Petitioner herself tells us: "many friends commented they thought our marriage was an ideal and happy one. I used poor judgement in looking at the situation in a narrow way and not seeing the destruction it was causing within the structure. Yes, I repeated the same mistakes throughout our marriage, because every counselor would recommend that I needed to be more assertive. When I tried to voice my opinion or view, Bob would retaliate and I would feel being assertive was not going to cause our marriage to stay together since it only caused more disharmony... I could not see the good being assertive did to our marriage" (41-42/11; cfr. 44/14).

            She confesses to having changed her views on the question of self-giving in married life: "I always felt, in a marriage, one gave 100% of him/herself. I now know this is not always the case" (59). It seems to have been under counseling that she acquired the idea that to approach or live marriage generously, wanting to give more than to receive, is a sign of immaturity: "I used to believe that our marriage was good in the beginning... On the other hand, I was not assertive enough... It was easier making peace than waves in the marriage. I always felt someone had to give in a give and take situation, and I had not really seen that I was always the giver" (59-60). "Looking back, I know I was not looking at this commitment rationally. I was looking at it from my side and how I was going to make it a happy and successful marriage. I never considered the other partner's responsibility towards the marriage" (57). It would seem as if idealism and romantic generosity, rather than being regarded as a natural base on which to build and positive elements to be fostered, are to be held simply as proof of incapacitating immaturity! Perhaps not without reason does the Respondent comment: "I still feel to this day if we had had the right counseling we could and would still be married" (88).

19.       Dr. RD, the psychologist called as court expert in first instance, says: "Their capacity to assume the basic marital responsibilities would have to be considered to have been below average in view of the psychological limitations that both the petitioner and the respondent brought into the relationship" (160a).

            Here we would make two comments: a) the expert does not indicate how he measures the average capacity for assuming basic marital responsibilities; however, even if the parties in the case had "below average" capacity, this would imply greater difficulty, but not incapacity, for assuming and fulfilling such responsibilities; b) one cannot fail to be amazed at the apparent certainty with which this opinion is given, since it comes from the same Dr. D who, when asked three months earlier by the Court whether the Respondent was suffering from some psychic disorder "which would make it difficult [sic] for him to assume and fulfill successfully the obligations of married life", replied that the psychic problem of the Respondent "was present after his divorce from Jessie C, consequently I am unable to render an opinion as to his psychological state of mind prior to and during his marriage" (144-145).

20.       In any case, the expert sets forth a series of extremely tentative opinions: "It is my hypothesis... I sense... I suspect... I suspect" (160-161). He cites "testimony by the petitioner" as suggesting that the Respondent reached adolescence with "some potential confusion... regarding his own sexual identity". He adds: "I suspect that the respondent was sexually unsure of himself prior to marriage, and during the marriage, and at present could be described as having latent homosexual potential and/or a problem of confused sexual identity" (160a). It is truly hard to understand how, on such a tentative basis, he goes on to conclude: "With the aforementioned in mind, I am of a firm belief that the respondent did not have a clear psychological choice in his decision to marry based on, what I would term, a confused sexual identity stemming from an overprotective and dominant mother/son relationship" (ib.). This belief - or theory or suspicion - of the peritus is excogitated from a passing remark made by the Petitioner (48). But the evidence offers no support to the idea of any latent homosexuality in the Respondent. The Petitioner herself testifies: "I saw no homosexual behavior... His sexual behavior was average" (51/8). Nor is there anything in evidence to support the thesis of his being under his mother's domination. The opposite is rather suggested by the fact that he took the initiative in building their house, and that they went to live in it as soon as it was completed, three months after the wedding (58/4).

21.       Dr. D says: "I sense that the petitioner was somewhat naive and idealistic in her outlook toward life in general and in her expectations regarding marriage. She appeared content to go along with the plans and wishes of the respondent". He concludes that she accepted a "pattern of male dominance", "without the opportunity to establish her own identity and independence" (159-160).

            This is in line with the philosophy that the woman who does not "assert" self is immature. Yet, it is not in keeping with wits who testified to Petitioner's very developed, responsible and mature character...

22.       The Judges of first instance make no real critical evaluation of the acts and proofs, so as to draw from them the moral certitude necessary for the judgment of the case (cf. c. 1608). They quote the court expert at length, but give no analysis of his reasoning or of his tentative opinions. They accept his psychological portrayal of both parties, without ref to the many facts and statements in the Acts which cast grave doubts on its validity. They are content to summarize, without comment, the evidence given by each of the parties, as if the two depositions, side by side, confirmed each other; whereas they show in fact very substantial contradictions. They quote one single witness and add, without further specification, "The testimony of other knowledgeable witnesses strongly supports the facts and allegations presented by both parties in support of the grounds for nullity" (181). It is clear from the witnesses we have quoted above that this is simply not true.

23.       Prof. Diego De Caro, Court expert in the present instance, considers this "peritia" to be "una costruzione" from the professional point of view: "il perito ha creato per il marito (come per la moglie) una costruzione psicopatologica e psicomorbosa" (Rotal Acta, 17).

            "E' evidente infatti che l'attrice non ha presentato, né durante l'infanzia-adolescenza, né nella prima giovinezza, tratti caratteriali e delle personalità di significativo interesse psicopatologico, né tanto meno psichiatrico" (ib. 14-15).

            The Petitioner "narrava pure della mancanza di intesa interpersonale con il marito, della sua sottomissione ai desideri di Bob, ecc.; ma in sostanza non riferisce nulla che possa inquadrarsi una vera situazione psicopatologica" (ib. 15).

24.       Prof. De Caro, speaking strictly within his professional competence, holds that the medical factors (her depressive personality, his diabetes and nervousness) are not such in either party as to indicate any grave lack of dis or incapacity at the time of the marriage (ib. 21-22). As regards the Petitioner, her depression was the result of the difficulties that arose in married life: "Si può infatti ritenere con certezza che tutti i suoi disturbi (personali e relazionali) siano comparsi qualche anno dopo il matrimonio" (ib. 20 in fine).

25.       Regarding the Respondent, Prof. De Caro says: "non esistono nella storia personale del convenuto in epoca anteriore al suo matrimonio elementi che autorizzino il giudizio espresso dal perito di Ufficio (e recepito dai Giudici di 1º grado) circa la sua grave compromissione nell'assumere le responsabilità del matrimonio cristiano, ovvero la sua insufficiente «discretio iudicii»..." (22). His nervousness is something common that has no special medical significance; nor has its treatment by means of valium. "Il Valium è una benzodiazepina ansioloiitica di impiego molto comune. Il considetto «nervosismo» del convenuto è una manifestazione estremamente comune che compare nel più differenti circostanze e che, come tale, non ha un preciso significato" (ib. 24).

26.       The Petitioner's advocate argues that her not having evaluated the importance of the Respondent's diabetic condition shows invalidating naivety and a grave lack of critical judgment on her part: "It is one thing to marry a healthy man, and another to marry one who is sick, especially if he is a diabetic" (Brief, 12). The Respondent insists that they had spoken of this problem before marriage and about its possible effects, and that she had declared she was ready to live with it. "I discussed this with her and told her that often diabetics can become impotent. She stated that if this happened, that we would cope with it" (86/10). In any case, as we indicated in the Law Section, christian anthropology does not accept that the decision to marry a sick person is valid proof of a grave lack of discretion of judgment.

27.       The Petitioner's advocate also argues for the incapacity of the Respondent on the grounds that "already on the day of the wedding and before, he suffered from a grave diabetes, which produced such psychic disturbances in him that he necessarily became impotent ten years after the celebration of the wedding. He was therefore incapable of accepting-giving the right over the body in perpetuity" (Brief, 11). That the Respondent necessarily became impotent, is not proved; besides he was cured of his impotence, at least temporarily. At any rate, it was a matter of subsequent impotence, which does not invalidate marriage (cf. c. 1084, § 1).

28.       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.


            Given in the Tribunal of the Roman Rota, January 17, 1991.

            Cormac BURKE, Ponens

            Thomas G. DORAN

            Kenneth E. BOCCAFOLA