Sentence of July 22, 1991 (Chicago) (c. 1095,2)

[English version: Forum 4 (1993) 1: pp. 107-121]


1.         When both of them were sixteen years old and at high-school, AA and JA started a steady relationship which continued for the next five years, also (by means of frequent letters) during the 1943-45 period when the man was on war service overseas. They were married on October 20, 1945, immediately after his return home. Each of them at the time was just over twenty-one. Their married life together, marked by the birth of four children, was peaceful enough for thirty years. Then serious disagreements began among the couple, who separated in June 1980, a civil divorce being declared in 1982. On July 28 of this latter year, the man petitioned the Metropolitan Tribunal of Chicago to have the marriage declared null on the grounds of lack of due discretion in both parties. An affirmative Sentence was handed down on August 6, 1984, which the Provincial Appeal Tribunal, despite the complaints of the Respondent, confirmed by Decree on October 2 of the same year. After this however, the Judicial Vicar raised the question of the possible nullity of the procedure of confirmation on the grounds of a denial of the right of defense to the Respondent; and, on Feb. 8, 1985, the Judges decreed "that this case be reopened to a full trial in the second instance". After a new instruction and a new court expert opinion, a Sentence was given on Dec. 18, 1985, confirming the Sentence of first instance.

            The Respondent still would not accept this. After sending a petition to the Pope, she had recourse to the Roman Rota for a new proposition of the case. The Acts of the case, repeatedly requested from the local Tribunal, only reached this Apostolic Tribunal on March 14, 1989. Free legal representation having been granted to each party, the Turnus, after considering the Advocates' briefs, decreed on March 8, 1990 that the incidental question and the merit of the case should be judged together. Today therefore, having considered the further briefs of each of the Advocates as well as the Animadversions of the Defender of the Bond, we must reply to the doubt concorded on July 12, 1990 in the following terms: "1) Is a new proposition of the case to be granted?; and, if the answer is in the affirmative: 2) has the nullity of the marriage been established?"


2.         The granting of a new proposition of the case: "Cases concerning the status of persons never become a res iudicata [an adjudged matter]" (c. 1643). Canon 1644 goes on to say that, even after two conforming decisions, a new proposition of the case can be requested and granted, provided that "new and serious proofs or arguments are brought forward" to back the request. Rotal jurisprudence holds that such new arguments can be provided simply by the evident failure of preceding Tribunals to base their decisions on the "acta et probata", provided such failure makes reform of the Sentences likely. So, in a Sentence coram Fiore of April 30, 1983, we read that an argument for the granting of a new examination of the case can be constituted by "violations of law that affect the merit of the cause, such as the non-observance of the norm of can. 1869, § 3, which lays down that the judge should draw moral certainty about the matter to be decided by the Sentence from those facts testified to and proved. Since «a scrupulous observance of these norms is incumbent on the judge» (as Pope Pius XII said in his Allocution of October 1, 1942), it follows that a new and grave argument arises «if it is substantially shown that some facts or circumstances, which were essential to the judgment of the case, were not subjected to due examination by the preceding judges» (RRD, vol. 41 (1949), p. 545, c. Felici)" (c. Fiore, April 30, 1983, RRD, vol. 75, pp. 254-255).

3.         Grave lack of discretion of judgment about the essential rights/obligations of marriage, under c. 1095, 2: The grounds contemplated under n. 2 of c. 1095 on the one hand, and n. 3 of the same canon on the other, are evidently connected, since both relate to consensual incapacity provoked from within. They are also however clearly distinct in that n. 2 relates to estimative capacity, in regard to some essential rights/obligations of marriage, while n. 3 relates to executive capacity regarding some such rights/obligations. The two grounds therefore are not to be confused, nor can a case be debated indifferently on one or the other. This should also be borne in mind in the instruction of the case, for the critical points to be examined or established vary according to the concrete ground advanced.

4.         In his addresses to the Rota of both 1987 and 1988, Pope John Paul II dealt with consensual incapacity under c. 1095. Without distinguishing nos. 2 or 3 of the canon, he insisted that incapacity must be the result of a grave anomaly affecting man's spiritual faculties - mind or will. The Pope's words, as we wrote in a recent Sentence, "leave no doubt that, prescinding from technical or medical classifications, only a serious disorder or pathology of the human «psyche» can invalidate consent. «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); «only the more serious forms of psychopathology are capable of undermining the substantial freedom of the person» (AAS 80 (1988) 1182). Here we clearly have an authentic interpretation that gives needed and mandatory guidance to all Tribunals on a matter of the greatest importance" (Sentence coram the undersigned of July 18, 1991, n. 3).

            This is particularly pertinent to our present case where the Judges of second instance affirm: "One need not be insane or otherwise mentally ill in order to lack due discretion... Lack of due discretion is often caused by some mental malady but not always so" (Acts, II, 67-68). We too hold that a person does not have to be insane in order to suffer from a grave lack of discretion. The Judges however go beyond that in suggesting that a lack of due discretion can occur in a person with a perfectly healthy mind; a claim that is scarcely reconcilable with the Pope's words, and with what common sense suggests. The grave lack of discretion which alone renders a person consensually incapable must derive from a definite pathology or illness of the «psyche» (mind or will; or both together). There may be good reasons - jurisprudential or otherwise - to prefer to speak of a psychic, rather than a mental, malady; but some malady, pathology or illness of the «psyche» must be there, and it must be grave.

5.         If an invalidating lack of discretion about essential matrimonial rights/obligations must correspond to a grave psychic anomaly, it is evidently an atypical occurrence. There is a natural understanding of the essential elements of marriage, possessed by all those who fall within the broad range of human normality. This range certainly includes those who, to use a phrase of the Judges of Second Instance in the present case, show "common immaturity". Stating, as we have noted, that "one need not be insane... in order to lack due discretion", the Judges add: "The ability to adequately judge the wisdom of a marital consent can be directly related to common immaturity, the latter being a symptom of pathology" (Acts, II, 67). If, as the Judges claim, "common immaturity" is to be taken as a symptom of pathology, the pathology in question is clearly slight. It therefore in no way justifies a judgment of grave lack of discretion.

6.         Here in any case we must remark that "the ability to adequately judge the wisdom of a marital consent" has nothing to do with the presence or absence of discretion under c. 1095, 2. An ecclesiastical Judge loses his juridic perspective and falls into an elementary mistake, if he confuses prudence about the choice of a concrete marriage with a particular person, and discretion about the obligations which are essential to marriage in itself.

7.         The Appeal Court in the present case seems to be working from this mistaken position when it states: "The circumstances surrounding the marriage must be studied to determine whether or not there exist factors in the relationship which would lead a prudent person to question the viability of this particular relationship. One must ask if these circumstances were such that a prudent person would not choose this marriage under most if not all circumstances" (II, 67). The "viability" of a particular marital relationship or the suitability of one party to another, is not a matter for an ecclesiastical Court to decide; nor does the Code of Canon Law contain any provision which would allow a declaration of nullity because a Judge decides that one spouse was unsuited to the other, or was incapable of evaluating their reciprocal unsuitability. "Consensual incapacity relates to marriage, not to spouse. The incapacity is person-to-institution, not person-to-person" (C. Burke: "Some reflections on canon 1095" Monitor Ecclesiasticus, 1992-I p. 142; Ius Canonicum, vol. 31 (1991), p. 97); and this applies equally whether the incapacity with regard to the essential rights/obligations is that of assuming (1095, 3), or that of evaluating (1095, 2).

8.         The mainstream of rotal jurisprudence does not accept the thesis of relative incapacity, under c. 1095, 3 (cfr. c. Raad, Apr. 14, 1975 (RRD, vol. 69, p. 260); c. Di Felice, Nov. 12, 1977 (vol. 69, p. 453); c. Lefebvre, Feb. 4, 1978; c. Agustoni, Feb. 20, 1979; c. Parisella, March 15, 1979; c. Bruno, Feb. 22, 1980 (vol. 72, p. 127); c. Fiore, May 27, 1981 (vol. 73, pp. 314-317); c. Pompedda, Feb. 19, 1982 (vol. 74, p. 90); c. Egan, July 19, 1984 (vol. 76, p. 471); c. Stankiewicz, Oct. 24, 1985, (vol. 77, pp. 448ss); c. Ragni, May 24, 1988, n. 5, etc.). Equally unacceptable would be a thesis of "relative [in-]discretion", under c. 1095, 2; i.e. that a grave and invalidating lack of discretion would be shown by the failure to foresee difficulties almost certainly bound to arise out of present character differences between the parties. One cannot confuse discretion, in the strict juridic sense in which it is used in c. 1095, with psychological insight into one's partner's personality.

9.         The presence of emotion in a decision to marry is no argument pointing to a grave lack of discretion. Otherwise all decisions made under the influence of "romantic" love would have to be considered invalid. Romance no doubt makes a person in love over-optimistic about the difficulties likely to crop up in marriage; but that unrealistic estimation of them is absolutely normal. It would seem in fact to be an important part of nature's way of encouraging people to enter the commitment of marriage. It would be absurd to wish to draw from it an argument for consent given without due discretion and therefore invalidly.

10.       An impulsive decision to marry is perhaps a sign of a lack of prudence, but not necessarily of a lack of discretion in the canonical sense. In any case, as is evident, the impulsiveness of the decision must be proved. When two persons have had a loving relationship for some years, their eventual decision to marry can seldom be qualified as impulsive.

11.       When it comes to proof of the presence of a grave and incapacitating lack of discretion, psychological reports based on tests of the parties (especially if made many years after the wedding) have very limited value. They may help confirm what the Acts otherwise show. By themselves they are inadequate grounds for a decision of nullity.

12.       Canons 1558-1571 give detailed norms governing the examination of witnesss in canonical processes. These norms are designed to ensure, as far as possible, that the evidence so collected (and from which the Acts are built up) will be truthful (c. 1562), pertinent to the issue (cc. 1563-64), facilitated by fair questions (c. 1564) and spontaneous answers (c. 1565), normally given orally (c. 1566), in the presence of a notary (c. 1651; cf. cc. 1567-68), and finally signed by the witness, the Judge and the notary (c. 1569). All of this presupposes direct contact between Judge instructor and witness. The seeking of evidence from witnesss by means of questionnaires sent and returned through the postal service respects neither the letter nor the spirit of these norms.

13.       Finally we would recall what is written in a Sentence, coram Pompedda, of Dec. 16, 1985: "Married life together for many years, and the fact of having had children and of the fulfillment of conjugal duties, while they may not yet create an overwhelmingly strong presumption for contractual capacity, nevertheless call for the greatest possible caution in asserting a defect of consent" (RRD, vol. 77, p. 586).


14.       Regarding the new proposiion of the case. It is true that, formally speaking, no new arguments for a new proposition of the case have been produced by the Respondent. Substantially however, as we will proceed to see, the Sentences represent a flagrant miscarriage of justice, insofar as they clearly go against the burden of the facts, the evidence of the witnesss, and the reports of the experts.

15.       Regarding a grave lack of discretion of judgment in both parties. The Petitioner's evidence consists of two written statements. He was not interrogated by the Tribunal of first instance and there is no indication that he ever appeared before it. The Respondent (at her own request: I, 15) was interrogated by the Judges of first instance, and her evidence was taken at the Tribunal (I, 48-78). Neither party was interrogated in second instance.

            We do not find proof of any special lack of maturity on the part of either party at the time of their marriage; nor (more importantly) of a grave lack of discretion regarding the essential rights/obligations of marriage. The findings of the Sentences, we repeat, are not supported by the facts, by the witnesss, or by the balance of the expert opinions.

16.       The facts. First of all there is the fact of the parties' 35 years of actual married life together, with 4 children (plus two miscarriages). The Appeal Court, in coming to its decision of an incapacitating lack of discretion, comments, "Why they stayed in the union for thirty-five years is unexplainable to the Court" (II, 70). If they suffered from consensual incapacity, the point certainly called for some sort of explanation. The Court was content to advance none.

            They had known each other as boy and girl friend for five years before the actual marriage. During war service, she wrote him every day (I, 53). Witnesss bear out that their courtship was close and constant (I, 83/2; 88/2; 92/2; II, 36). The Second Sentence considers that the marriage was an "impulsive decision on the part of both parties that definitely lacked due discretion" (II, 71). The impulsiveness of the decision is not borne out by Acts.

            She worked for the first years of married life, so that he could study (I, 35; 38); this does not show immaturity on her part.

            He, a psychologist with his Ph.D., claims: "I always excelled in academic achievement" (I, 21). She confirms that he was a very hardworking student (ib. 36).

            He spent three years in war service. His rotal Advocate presented documents in third instance to prove that he "received serious wounds in the war, which bear out the conclusions of the experts regarding a post-traumatic state". In fact, and despite the testimony of some friend that he received war injuries, the documents include his official certificate of discharge from the army which notes, "Wounds received in action: None". The Petitioner, but none of the experts, refer to a "post-traumatic" state (I, 105).

            Even in putting forward his own claim to a possible lack of maturity, his affirmations are very mild: "My present opinion of my judgement at the time of my marriage... is that it was questionable. The circumstances at the time were certainly unique. I had returned home as a hero after many months spent in very trying situations, which may have affected my judgment. I do not think that I was able fully to appreciate the significance of my decision. To have rushed to the altar before I had taken my place as an adult or even adjusted fully to civilian life certainly showed less than mature judgment" (I, 24).

17.       The witnesss. Eight witnesss gave evidence in the two instances; six for her and two for him. Six of the eight lived within the immediate area of the Courts. Yet their evidence was sought and received by means of mailed questionnaires. It has to be said in any case that both Sentences totally fail to take the evidence given by witnesss into account. The Judges of first instance admit indeed that their conclusion goes against this evidence, since the witnesss, "paint a different picture" (I, 125); but, like those of second instance, they fail to quote a single word of any witness. One is amazed to find the Defender of the Bond in second instance stating that "support to the allegation has been given by four competent witnesses" (II, 1; II, 60). However he does not say what that support might be; the evidence of these four witnesss appears to us completely unfavorable to the grounds alleged.

18.       A brief consideration of the actual evidence reveals the following.

            The witnesss are unanimous in telling us that both parties came from very stable and religious families (I, 80/1; 83/1; 87/1; 92/1; II, 36; II, 40). The Petitioner's mother confirms this in his regard (II, 44).

            Regarding the Petitioner's maturity, the Respondent states: "At the time of our marriage I thought he was over-matured" (I, 35). AC, the Respondent's maid of honour at her wedding, testifies; "Both were mature and stable when they married" (I, 92/1). JA, a close friend of the Petitioner's since schooldays, confirming that he "comes from a very stable and religious family", describes him as "very mature and responsible" (I, 87). This is confirmed in second instance by AR (II, 36/1), while LR says that he had "a much higher level of maturity and responsibility at a very young age"; and adds, "I feel that each has always been and are now able to sustain the responsibilities of marriage" (II, 40).

            The Petitioner suggests that their pre-marriage relationship was slight and superficial (I, 17). JA testifies however: "They went out many times together" (I, 83), which AC confirms (I, 92/2). JA testifies that it was a close and loving relationship (I, 88/2). AR says, "They were childhood sweethearts... Actual courtship began while they were in high school and treatment was beautiful and loving" (II, 36/2). The Petitioner's own mother testifies to his love for the Respondent (II, 44).

            The only other witness who knew the parties before and at the time of their wedding, WG, testifying for the Petitioner, says: "I do not think either party was ready to assume the responsibilities asked for in marriage". However, he gives no reasons for this opinion, which must in any case be qualified by his statement that the Petitioner was "as responsible as could be expected for his years at the time" (II, 49).

19.       The experts. Three expert opinions were given in first and second instance. The Advocate for the Petitioner in third instance asked for a further "peritia". Refusing this request, the Ponens said: "Our Decree [of March 8, 1990] was in no way based on the unsuitability of the opinions of the experts, but rather on the failure of the Judges to weigh them properly. There is an abundance of expert opinions; another would be superfluous".

            In the first Sentence the Judges admit that "the psychological evaluations found no psycho-pathology" (I, 125). We find nothing in them that could suggest a grave lack of discretion in either party.

20.       The opinion of the psychologist, LK, is drawn from a reading of the Acts: "In my opinion, the data in this case is not sufficient for a finding of absolute psychic incapacity in carrying out the responsibilities of marriage for either the Petitioner or the Respondent... There is no evidence of any clinically significant psychopathology within his [Petitioner's] background... The data does not demonstrate any essential psychopathology within the Respondent... In the absence of any evidence of significant psychopathology, it is not possible to form an inference of absolute psychic incapacity" (I, 98). While the questions put to the expert by the Court (according to what seems to be a standard form: cf. I, 96-97) may have led him to think that the case was being heard under c. 1095, 3, his report is evidently unfavorable to any conclusion of consensual incapacity under either n. 2 or n. 3 of the canon.

            The opinion which Dr. RI, a clinical Psychologist, gives of the Respondent is based on psychological tests (made, it must be remembered, 38 years after the marriage), not on the Acts. He says that her "test results fall within normal limits..." (I, 99). Regarding the Petitioner and on the basis of a single interview, the expert states, "He is of well above-average intelligence". Having simply reported the Petitioner's view of the history of the marriage, he concludes, "In my judgment there is certainly reason to believe that Dr. A was immature at the time of the marriage in question"; for this opinion, however, he gives no reasons and no clinical basis (I, 105). He would in any case seem to be speaking of "common immaturity" from which, as we pointed out in the Law Section, no conclusion of grave lack of discretion can be drawn.

22.       The second Judgment refers only to the expert called in that instance, Dr. RG, a clinical psychologist. He gave his opinion from a reading of the Acts. He says: "neither the Petitioner nor the Respondent appeared to have had any thought disorder, mood imbalance or tendency to disordered behavior at the time of their marriage". He adds that each of the parties shows evidence of "problematic features to their personalities" ("Mr. A appears to be a somewhat narcissistic man..."; the Respondent has "a distinct histrionic feature to her personality. Her inclination is to respond to events emotionally..."); but states: "these problems are not so severe as to warrant a formal diagnosis" (II, 54).

23.       As is evident, these views are totally inadequate to induce moral certainty in a Judge about grave lack of discretion in either party. Yet the Appeal Court comments: "One of the most helpful bits of evidence that point clearly to the lacking of due discretion on the part of both parties, is from the 2nd Instance Court Expert's report" - on which they base their decision (II, 71-72).

            It is clear therefore that the Sentences ignore or contradict the burden of the expert opinion, almost as much as they do that of the lay witnesses.

24.       Before ending, we would note some further points. The Appeal Court writes: "This lack of knowledge of each other is a further indication of their lack of due discretion. The personalities just could not gel. Why they stayed in the union for thirty-five years is unexplainable to the Court" (II, 70). What seems unexplainable to us is that a Court should so easily conclude to a total "incompatibility" of personalities despite the fact of 35 years of married life together. In any case, so called incompatibility is no proof of incapacity; nor, as we have pointed out in the Law Section, is the failure to foresee it proof of an invalidating lack of discretion.

25.       We cannot accept the implication - present in both Sentences - that any emotional or "romantic" decision to marry necessarily shows a lack of discretion. In taking the deposition of the Respondent in first instance, the Judge Instructor already attempted to persuade her to accept this thesis. First he argued with her that the Petitioner's lack of discretion was shown in his stubbornness and selfishness, and that hers was shown in her having failed to appreciate the importance of these defects (I, 66-68). She replied that she realized he had faults but thought she could change them. The Judge then tried to get her to see that her lack of discretion could have consisted precisely in this. "You see, discretion means to separate thing, to sort things, to sift things. Now you and he married because well you said you were in love... Were there any motives for not marrying?" She replies, "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... 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..." (ib. 66-67). The whole of this discourse has nothing to do with discretion in the canonical sense. We would add that such a mode of carrying on an interrogation is not a model of impartial instruction.

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

            as to the first: "In the Affirmative; that is, a new proposition of the case is to be granted";

            as to the second: "In the Negative, that is, the nullity of the marriage has not been proved in the case before the Court".


            Given at the Tribunal of the Roman Rota, on July 22, 1991.

            Mario Francesco POMPEDDA

            José María SERRANO

            Cormac BURKE, Ponens