Sentence of June 13, 1991 (Birmingham) (c. 1095,3)

[English version: Monitor Ecclesiasticus CXVII (1992-III-IV), 512-521)]


1.         After a peaceful engagement which lasted three years, Peter H and Clare P married in 1962. Their married life, with three children born, was happy until 1967 at least. Then it went into decline, the reasons being the man's frequent absences on business trips, and especially a deterioration in their sexual life since he began to use women's clothes to stimulate himself in order to have intercourse. Their sexual relations ceased altogether in 1974 or 1975. It is not clear when they separated; apparently about 1978.

            Having obtained a divorce, the woman in 1984 petitioned the Tribunal of Birmingham to have the marriage declared null on the grounds of lack of discretion of judgment and incapacity for assuming the obligations of matrimony, on the man's part. An affirmative decision, on both grounds, was handed down on July 16 1986. The Liverpool Tribunal, without any further instruction, reversed it on January 15 1987.

            At the Petitioner's appeal, the case was sent to our Apostolic Tribunal. After a new instruction as well as a further expert opinion "super Actis", we today reply to the doubt concorded on March 29, 1989: "An constet de matrimonii nullitate in casu".


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

            If marriage is a basic human right, corresponding to a deeply ingrained natural inclination, then incapacity to give valid matrimonial consent, as contemplated in nos. 2 and 3 of this canon, is a grave disability that can only result from a serious anomaly in man's psychic faculties (cfr. sent. c. undersigned Ponens, June 18, 1990, n. 2).

            This was a main point of the addresses of the Pope to the Rota in 1987 and 1988. "For the canonist, the principle must remain clear that only incapacity, and not just difficulty, for giving consent, renders marriage null... 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 contracting party's " (AAS vol. 79 (1987) 1457).

3.         To determine what is "normal" in conjugal 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 clearly of little relevance to jurisprudence in the task of determining the minimum capacity necessary for valid matrimonial consent.

            The Pope spoke of this in 1988: "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 vol. 80 (1988) 1181)

            The same address mentions the danger of an "undue overevaluation of the idea of matrimonial capacity", and warns against the mistake of judging capacity "in reference not to the minimum capacity which is sufficient for valid consent, but to the ideal of that full maturity which so influences the happiness of married life" (ib. 1183).

4.         As Christianity teaches, original sin has introduced anomalies, or tendencies to deviate from the right order, into almost every aspect of human nature. These anomalies or abnormalities are specially noticeable in the sphere of sexuality. One therefore cannot be surprised if the sexual relationship, in marriage also, is marked by some tendencies or actions that do not correspond to "ideal" normality. "Mere abnormality in performing the sexual act would not suffice [to prove incapacity], all the more so ssince the concept of normal sexuality is becoming more and more uncertain among specialists in sexual matters. Normality is in fact considered as a process subject to continuous changes" (c. Pinto, Dec. 3, 1982: RRD, vol. 74, p. 567).

            Just as moral theology needs to avoid casuistry in such matters, so jurisprudence and canonical science must be careful not to automatically attribute an incapacity for establishing a valid marital relationship to anyone whose sexual conduct departs from what might be considered the "perfect norm". To conclude to invalidity, in such cases, it has to be proved not only that the departure from the norm was serious, but also both that the anomaly was present at the moment of consent, and that it had the effect of permanently incapacitating the person from assuming some essential obligation of matrimony.

5.         The essential obligations of matrimony are those which so fundamentally touch the essence of marriage that, if the capacity for fulfilling them is lacking, matrimony absolutely cannot be constituted or brought into existence. They are, in other words, the obligations that derive from the three augustinian "bona" - exclusivity, procreativity, permanence - which have always been held to essentially characterize marriage, since matrimony cannot come into existence without acceptance of what is necessarily implied in these three "bona", or without the ability to live them. "It must be borne in mind that not every defect is sufficient for a declaration of nullity. The defect must be such that it renders the contracting party incapable of making a free choice or of assuming the essential obligations of the three «bona»" (c. Pinto, July 8, 1974, RRD, vol. 66, p. 501). "Not every defect of stability or maturity is enough to bring about the nullity of matrimonial consent. This can be induced only by a defect such as to render the contracting party incapable of a free choice or of taking up the essential obligations, and in particular the three «bona» of marriage. For matrimony cannot be looked on as the high point of maturity already acquired, but rather as a step in the process towards acquiring fuller maturity" (c. Pompedda, July 3, 1979, RRD, vol. 71, p. 388).

6.         The marital relationship involves indeed many other obligations which are important to the fullness of conjugal life, but are not essential to its constitution or coming into existence. Great difficulty, or even what seems to be radical inability, to live up to these obligations (such for instance, as an irascible person's constitutional incapacity to control his or her temper) does not render a marriage null. "When the spouses express their matrimonial consent they must give and accept the essential rights, not the accidental determinations, of conjugal life... If therefore they are in some way prevented from properly understanding and freely choosing, not the rights and obligations of marriage, but simply an upright way of acting in the circumstances that accompany matrimony or that befall conjugal life in the future, they are certainly able to give valid consent to marriage" (c. Di Felice, Dec. 12, 1970: RRD, vol. 62, p. 1152).

7.         Therefore, in cases of alleged incapacity, Judges should require, and Advocates should state, the specific nature of the essential matrimonial obligation to which the asserted incapacity is referred. "Lest sentences of the nullity of marriage, on the grounds of incapacity for fulfilling conjugal obligations due to a psychic illness or abnormality, become so vague as to embrace all marriages which have worked out badly, it is necessary that they explicitly state what obligation is involved and, once this is clear, why the illness or abnormality in question is judged to have caused the impossibility of fulfilling that obligation" (c. Egan, Jan. 14, 1981: RRD, vol. 73, p. 13).

8.         While the sphere of intimate physical relations is of course specially important to married life, it does not appear that anomalies which simply make the marital sexual relationship more difficult - such for instance as transvestism, i.e. the tendency or compulsion to wear the dress of the opposite sex, particularly when seeking intercourse - can render consent null on the grounds of incapacity. Such anomalies no doubt take from the "bene esse" of the marital relationship, but not in any radical way from its "esse". Jurisprudence, we repeat, is concerned with what might be called the "valid essence" of matrimony, not with its "ideal essence".

9.         Lack of due discretion and the "incapacitas assumendi" are both referred by c. 1095 to the essential obligations of matrimony. They are to be measured, therefore, in relation to the institution of marriage, and not to the particular spouse whom a person chooses. Some acceptable juridic standards can be established for measuring capacity to appreciate or to assume the "per se" obligations of marriage. None can be established for measuring the capacity of one person to make a wise choice of a particular partner, or to be able to live successful married life with him or her. Tribunals can reasonably be asked to judge person-to-institution capacity for, although the task is certainly delicate, the points which mainly guide their consideration are the constants of human nature and the essentials of the most natural of human institutions; in other words, objective elements provide the principal basis for their judgment. They cannot be reasonably asked to judge person-to-person capacity, for then all the elements involved are subjective (cfr. c. Pompedda, Feb. 19, 1982, RRD, vol. 74, p. 90, n. 9).

            It would therefore seem outside the competence of the law to judge relative moral capacity. Consequently, the simple fact that a person feels morally incapable of keeping up conjugal life with the particular partner he or she had chosen, while it might offer grounds for advising separation, would provide none, in law, for judging marital consent to have been null.

10.       A marital breakdown always has its seeds or roots in some factor, perhaps in something as simple as the failure of one or other partner to control irritability, to ask pardon, or to humor the legitimate preferences of the other. The task of a matrimonial court is not, however, to explain why a marriage broke down, or to consider if it was "viable" or not, but to pass judgment on its validity; concretely, if it is a case under c. 1095, to judge whether one or both parties lacked consensual capacity or not. Viability is not an operative juridic term. A relationship can be perfectly viable, and yet invalid; and vice-versa.

11.       In this context it should be observed that some Tribunals allow irrelevant or even misleading questions to be put to witnesses or court experts; for instance: "Is a particular condition or personality trait, observed in a party, of such a nature as to be destructive of a marriage?" Since one can only destroy what exists, such more than equivocal questions imply a radically erroneous understanding of what is involved in a nullity proceedings. A null marriage never existed, and therefore was not and could not be destroyed. The witnesses and experts have to be asked questions which can bring to light precisely the non-existence of the supposed marriage - if such is the case - so that this radical "non-existence" can be judicially declared.


12.       The judicial solution of this case would seem to hang on two points: a) the relationship of the Respondent's transvestism to the essential obligations of marriage; and b) the proof that the Respondent suffered from this condition at the moment of consent.

13.       The court expert in first Instance, Dr. D. Anton-Stephens, stated: "Transvestism... is a quite remarkably common phenomenon. I think one would be truly aghast if the actual number of men thus inclined were ever to be accurately determined... I have seen far too many women with transvestite husbands to doubt that - of itself - it is no serious bar to normal married life. It is a 'nuisance'... but not a necessary bar to normal heterosexual intercourse. Its roots are deep-seated and have 'fetishist' associations, but many men thus inclined show no other evidence of any abnormality. The keystone of the matter is whether or not the wife can accept it. Some can (sometimes even with humour), others cannot. I personally have much sympathy with the latter, but have to acknowledge that many women find it an acceptable element in their total sexual experience" (Acts 21).

14.       The Judges of First Instance, in coming to an affirmative decision, reject the substance of this report. They briefly dispose of the expert's opinion ("Notice was taken of Doctor Anton-Stephens' comment that transvestism as such is not a bar to marriage or married life but a nuisance"), and lay down a counter-principle: "For a man to need to dress up in women's clothes, not just as a variant on the normal, but as a compulsion, is clearly something serious, striking at the heart of married life" (A. 28). "Striking at the heart of married life" is not a very precise juridic expression. But in any case, it would seem that the Judges are theorizing here, while Dr. Anton-Stephens, whose opinion they reject, is speaking, in their own words, "with a lifelong experience of the deviations of human beings" (28).

15.       The Judges go on to say that they accept Dr. Anton-Stephen's further comment "that the keystone of the matter was the acceptance or not by the woman. It is clear that Clare did not run away immediately she found what her husband was truly like... She tells the Court that she tried her best to accept her husband as he was but that she could not in fact accept it and cope with it. Each marriage is unique and is between these two people. It is the opinion of the Judges that because of Peter's nature and transvestism, married to this woman, he was unable to fulfil the life-long obligations of marriage" (28-29). The logical connection between these various points is not altogether clear. Basing themselves (so it would seem) on the unacceptable theory of "relative incapacity" ("Each marriage is unique and is between these two persons..."; the Respondent "... married to this woman"), they seem to reason from breakdown to incapacity. According to the expert, whether transvestism is a cause of marital breakdown most often depends on the wife's acceptance or not. The Judges note this, adding that the Petitioner "tells the Court that she tried her best to accept her husband as he was", but could not do so in fact... The Judges accept the Petitioner's word that she "could not" accept the Respondent's condition, whereas the only proven fact is that she did not. In any case, it is clear that the Petitioner here is as much confessing to her own "incapacity" as accusing the Respondent of his.

16.       There is imprecision too in the Judges' opinion that the Respondent "was unable to fulfil the life-long obligations of marriage". Here they neither state whether or on what grounds they relate this incapacity to the moment of consent, nor which, among the life-long obligations of marriage, were the essential ones to which the alleged incapacity, if it was to invalidate consent, actually related.

17.       At this stage we can already anticipate our major points of disagreement with the Judges of First Instance:

            a) it is not clear (as we have pointed out in the Law section) that transvestism, in itself, can be considered a grave sexual anomaly;

            b) in the present case, moreover, the evidence before us indicates that what the Respondent suffered from must be considered a milder form of transvestism;

            c) further, it is not proved that the condition was present at the moment of consent;

            d) (even if this last point were proved) it is above all not clear how the condition would have incapacitated the Respondent from assuming an essential matrimonial obligation.

18.       When the Judges go on to examine the moment of consent (which alone is critical for determining validity), they say: "The Judges accept that the seeds of the destruction of this marriage were present at the time of the wedding". Their mode of expression is lacking in juridic rigor. "The Judges accept..." as proved?; on what grounds? The point has certainly not been proved. The expert thought it "very likely that the transvestite tendencies were potentially present at marriage - but we have no positive evidence..." (22). The Judges, while implying that positive evidence has given them moral certainty on the point, do not say what this evidence is. Besides, as we pointed out in the Law Section, it was a judgment about consensual capacity, and not about possible "seeds of destruction" of the marriage, that the Tribunal was called to give. With this in mind, it would seem that the question put by the Court to the psychiatric expert - [if the Respondent had a serious sexual problem] "is such a sexual problem most likely to destroy a marriage?" (20) - , was not pertinent.

19.       Regarding the grounds of discretion, the Judges simply say: "On the heading of Lack of Due Discretion the plea shall also succeed" (29). They give no reasons for their conclusion, beyond stating, "It is difficult to see how Peter could have appreciated and realised what marriage was and entailed" (ib). From mere "difficulty" in seeing how a person could have appreciated what marriage entailed, one does not acquire moral certainty that he did not in fact do so... The evidence of the parties is that the way marriage was understood and approached was normal on both sides (cf. 4/7; 5/9; SA 16/7; 19/17; 24/5; 27/15).

20.       While the Second Sentence also seems to favour the theory of relative incapacity (37, par 2), it does centre its attention much more clearly on the moment of consent. It remarks: "His transvestism, so far as can be ascertained, was not so gross per se as to render a marriage null. At the time of the marriage and for five years afterwards there was no suspicion that he laboured under this condition"; and adds, "When it did come to light it was confined to the bedroom..." (ib.).

21.       We might note that when the Judges say, "Very many viable marriages include a poor sexual relationship" (ib.), they are expressing themselves in pastoral terms. "Very many valid marriages..." would have been more accurate, from the juridic point of view.

22.       We now turn to our own weighing of the evidence, and especially of the expert report given in this instance.

            The Judges of First Instance, having noted that "Evidence is a problem in this case" (26), seem to see the issue as whether the uncorroborated evidence of the Petitioner alone is sufficient basis on which to decide the case. But the real problem is that her evidence does not bear out the alleged grounds.

23.       Be it noted that we are questioning the value of her evidence, not her credibility which in fact seems good, inasmuch as she gives very straightforward replies even when they tend to go against her own case. Speaking of the period prior to marriage, she says: "There was no hint of anything wrong [in the Respondent] at that time" (SA 16/7); "I never noticed anything that made me think there was an unconscious [homo]sexual attraction" (ib. 17/8). Asked, "Did Mr. H have any transvestite inclination before marriage? Did he ever have homosexual tendencies?", she replies: "I have nothing to make me think he did... I don't know of any" (ib. 18/14). She gives her impression of him at the moment of the wedding: "At my wedding I thought Peter was a fine upstanding man. Him and women's clothes was the last thing in my mind" (ib. 19/17). In first instance she had testified: "There was nothing effeminate about him" (4/7) - which her mother confirms, saying of the Respondent that at time of the courtship and wedding, "He was a man's man" (ib. 13/6).

            The Petitioner insisted: "I had no doubts at all in marrying Peter" (ib. 5/7); and, speaking of the first years of their life together, said: "After our wedding we settled down together and the marriage was happy. We had regular intercourse and a daughter was born on the 31st May 1963... twins were born in June 1967" (ib. 1). Referring to those first five years of m'd life she repeated: "All during this time there was no hint of the future troubles" (ib. 5/11); and in third instance she adds that "we had intercourse at a fairly normal occurrence" (SA 19/17; cfr. ib. 20/24). Further asked, "Did he assume effeminate attitudes?" during intimate relations, she replies without hesitation: "No, he didn't" (SA 18/13).

24.       We can note something further which she testifies to in third instance, since it has a bearing on his general discretion: "I believe Peter had a very good reputation and was good at his job. In fact I think he was too good at his job and got too involved and the family was neglected" (SA 16/4; cf 20/22).

25.       The evidence of the Respondent - obviously of the greatest importance to the case - was only obtained in third instance. He also gives the impression of answering sincerely. He is quite open about his transvestism, but says it was something "passing" in his life. Asked if he had had transvestite tendencies before marriage, he answers: "No. It was a passing phase. It assisted me in the gratification during sexual intercourse. When Clare and I parted it ceased. Perhaps I should have gone to see a psychiatrist. I am sure a psychiatrist could probably explain this" (SA 28/20). He says he had no such inclinations at the time of engagement (28/21), thinks that, once they appeared, he had the capacity to resist them (29/27), and adds, "I have no homosexual tendencies" (28/23). We may note that he is now married again (A. 11/16g).

            He gives his view of marriage: "Marriage was the natural thing to do in view of the fact we loved each other. I think our views were fairly conventional. I saw marriage as settling down and living with Clare, starting a home together. I intended marriage to be for life and to be faithful to Clare. I expected to have a family" (27/15). "I was a normal father" (29/30). And it must be said that nothing in the Petitioner's evidence would suggest that he is lying. Re his credibility, the Petitioner herself testifies: "Peter is an honest man" (SA 21/26).

26.       Finally let us turn again to the court experts. Dr. Anton-Stephens had stated: "transvestism is not necessarily associated with effeminacy. Many transvestites are perfectly good sexual partners, do not show any other sexual deviations, and hold down 'masculine' jobs. Possibly, in this case, Peter found his transvestite fetish of increasing importance as the heterosexual attractions of his wife lessened with the passing of time and loss of novelty" (S. 21-22), which fits in with what the Petitioner testified: "I felt Peter gradually lost interest in me sexually. I first felt this after we had been married three or four years" (20/23).

            Dr. Anna Braga gave a report for the third instance hearing, at the request of the Officialis of first instance. She says: "I agree with all that Dr. Anton-Stephens writes" (A. 42); but her conclusion goes much beyond his. According to her, the Respondent's transvestism was a symptom of "personality disorders that would have shown before the age of twenty-eight and, therefore, Peter must have been aware of them at the time of his marriage" (ib). Dr Anton-Stephens is much more judicious: "I think it very likely that the transvestite tendencies were potentially present at marriage - but we have no positive evidence either way" (A. 21). The rotal expert, Prof. Tonali, considers Dr. Braga's assertion as "lacking in foundation" (SA, 38).

            When Dr. Braga says, "He probably hoped that marriage would enable him to overcome the problem, but in my opinion to have married knowing his disability and not even discussing it with his intended wife is a serious matter" (A. 42), we must comment that the first part of this does not fit in with the Acts: the evidence is that the "problem" was not present for the first years of married life. Dr. Braga then, assuming that the Respondent married knowing of his disability (which he explicitly denies: SA 28/20-21), pronounces this to be "a serious matter"; her view here is a moral more than a professional judgment.

27.       The report of the rotal expert, Prof. Tonalli, removes the last doubts, if any were remaining, about the Respondent's basically normal discretion at the moment of consent; and confirms that his transvestism gives no grounds for positing a serious psychic anomaly: "One must therefore recognize that no objective elements exist to give any solid basis to a suspicion of the presence in the Respondent, in the period before the wedding, of any significant disturbance of personality, particularly with regard to the affective and psychosexual spheres. He can be said to be of normal intellectual ability, well integrated socially, without any particular difficulty in interpersonal relations and with substantially adequate affectivity, such as to allow him normal relations with the other sex, even though this might not be very strong as regards instinctual drives" (SA 34).

            "... the overall behavioral expressions of the Respondent, as can be seen in the Acts, both in the pre- and post-matrimonial period, we well as in the family and social fields, do not bear out the existence of any significant personality disturbance" (ib. 38-39).

28        The Advocate for the Petitioner holds that the Respondent's "affective frigidity" made him incapable of "setting up a sound interpersonal relationship" (Brief, 17). "Sound" is not a very precise expression from the juridic point of view. In any case, Prof. Tonali, who sees his personality in effect as "not very strong as regards instinctual drives", judges him to be capable of "normal relations with the other sex" (SA 34).

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.

            Given in the Tribunal of the Roman Rota, June 13, 1991.

            Cormac BURKE, Ponens

            Thomas G. DORAN

            Kenneth E. BOCCAFOLA