Sentence of Dec. 12, 1991 (Chicago) (c. 1095,2)

[English version: Forum 5 (1994) 1: pp. 69-85]


1.         Lloyd F and Patricia S met in the month of May 1964 in the hospital where he was undergoing treatment and she was working as a nurse. Six months later they got engaged. They were married on June 26 1965, in the Church of St. X, Chicago. At that time he was twenty-four years old, she was twenty-two. Two children were born, and their conjugal life together last twenty-one years until 1986, when he left for another woman.

            On August 14, 1989 he presented a petition to the Chicago Tribunal in which he accused his marriage of nullity on the grounds of "lack of due discretion; lack of communication". On September 21, 1989 the issue was joined in the following terms: "Consent defective in its formal object on the part of the Petitioner (c. 1055 §2; 1057 §2); Lack of due discretion on the part of the Respondent (c. 1095, 2)".

            The parties gave evidence, and three witnesses for the Petitioner filled in questionnaires sent to them by the Tribunal. A Court Expert interviewed the Petitioner (not the Respondent), and gave his opinion based on a reading of the Acts. The one-Judge Sentence, forthcoming on April 19, 1990, was affirmative on the one grounds of lack of due discretion in the Respondent. The Appeal Court of the Province of Chicago, having admitted the case to ordinary examination in second instance, and after further questioning of the parties and another expert opinion, negatived the decision of first instance on November 28, 1990.

            The Petitioner having appealed to our Apostolic Tribunal, the Turnus was constituted on April 12, 1991 and gratuitous legal representation granted to the Petitioner. No further instruction of the case was asked for. Today therefore, after having read and considered the brief of the Petitioner's Advocate and the Animadversions of the Defender of the Bond, we must reply to the doubt legitimately concorded on July 9, 1991: "Whether the nullity of the marriage has been proved on the grounds of a grave lack of discretion of judgment in the Respondent (can. 1095, no. 2)".


2.         Marriage as proposed by the Church corresponds to the natural understanding which man has of that exclusive, permanent and fruitful union with a member of the other sex to which he is led by the human conjugal instinct (cfr. Sentences coram the undersigned Ponens: una Romana, April 19, 1988, n. 2; una Romana, Dec. 6, 1989, n. 3). Many people today may no longer share this natural understanding. But this, even if proved in a particular case (and it always demands strict proof), does not of itself invalidate consent, for a person, when the occasion arises, is capable of accepting marriage not according to his previous (very often superficially held) notions, but according to the deeper perception now proposed to him. This latter eventuality is all the more possible precisely in view of the natural truth and attractivenes of the understanding of marriage presented by the Church. "Even though the mind is in error, the will can still contract according to the common and true notions of marriage. Nor is this at odds with human psychology. In our way of behaving we so often give up certain opinions so as to follow others that better fit the circumstances!" (c. Felici, May 12, 1959, R. R. Decis., vol. 51, p. 257).

3.         Rotal jurisprudence has therefore always maintained that even if a person holds an unnatural view of marriage - i.e. one in contradiction with its natural reality - , this is not sufficient to invalidate consent. It must also be proved (not assumed) that he applied his ideas to his own concrete consent and, by a positive (fully conscious) act of the will, excluded some essential aspect of marriage.

            "A positive act of the will is required, for one thing is to think, another to want; one thing is a simple act of the intellect, such as an error that remains in the mind without influencing the will and therefore without in any way taking from consent; another is a positive act of the will by which a party, knowingly and deliberately, decides for instance to enter a temporary marriage" (c. Jullien, Oct. 16, 1944, R. R. Decis., vol. 36, p. 619).

4.         In the present case, one of the grounds put forward in first instance was: "Consent defective in its formal object on the part of the Petitioner (c. 1055 §2; 1057 §2)". In "The Law" part of his sentence, the single Judge argued at length that consent is rendered invalid by "the substitution of another formal object which is incompatible with the correct formal object of Christian marriage"; and maintained that this "can take place consciously or unconsciously, with or without error, with or without lack of due discretion or competence, with or without ignorance of the true formal object of marriage, and even, in certain circumstances, with or without malice". He added: "In all of these cases, there is no separate, positive act of the will by which the correct formal object has been excluded" (Acts, 108).

            In the event the judge did not find the marriage invalid on these grounds. We find the grounds themselves unacceptable.

5.         When consent is given according to a formula that covers the natural and essential attributes of marriage (exclusivity, procreativity, indissolubility), people are presumed to have consented sincerely, i.e. according to their own avowed profession (cf. c. 1101, § 1). In other words, they are presumed to mean what they say: presumed, that is, to have undertaken the commitment of marriage in the terms which they themselves have freely chosen to utter.

            Furthermore, if clear questions are asked of the parties and clear affirmative answers are required of them in the exchange of consent, this is precisely to ensure that people do consent to marriage in its natural, God-given integrity. It can no doubt happen that a person internally denies what he externally professes. This, if done with a positive act of the will, is what is termed simulation; and it of course invalidates marriage (cf. c. 1101, § 2).

            The words of matrimonial consent are absolutely clear regarding the fundamental commitment to which the person uttering them expressly pledges himself or herself to accept. It seems quite inconceivable therefore that someone who substitutes another formal object, truly "incompatible with the correct formal object of marriage", should do so unconsciously. Unless he is of such substandard intelligence that his consent is null under c. 1095, nos. 1 or 2, he necessarily realizes the contradiction between what he externally affirms and what he internally intends, and so he consciously simulates.

            Properly considered, therefore, the thesis put forward would seem to amount to one of "unconscious simulation", a theory contrary to logic which has never been accepted in rotal jurisprudence. "Nor does one find in a person of healthy mind any unconscious discrepancy between his internal will and its external manifestation" (c. Mundy, Jan. 24, 1970: in vol. 67, p. 117). "The person who simulates or excludes, is conscious that he has not given himself [to the other] or received the gift of the other, as is required for marriage" (c. Serrano, May 21, 1976: vol. 68, p. 310). "A positive act of the will... is not such, nor has it any power to nullify matrimony, unless it is consciously and deliberately elicited" (c. Ferraro, Nov. 11, 1980: vol. 72, p. 718). "No one can elicit a positive act of the will... without realizing it" (c. De Jorio, March 21, 1970: vol. 62, p. 300). "The person who claims in judgment to have simulated consent, must necessarily have been conscious of his falsehood in contracting" (c. Wynen, Feb. 6, 1936: vol. 28, p. 102).

6.         Marriage is not an individualistic experience. It is a shared venture which, through mutual conjugal self-giving, is directed to the good of spouses and the procreation and education of children (cf. c. 1055). These two ends, rather than being in opposition or contrast, are intimately interconnected, since both correspond to the institutional design of marriage (cf. C. Burke: "Marriage: a personalist or an institutional understanding?" Communio, vol. 19 (1992), pp. 278-304). The normal thing is for a marriage to be fruitful, children being in fact the natural result of the physical act by which marital intimacy and union are more particularly expressed. The common dedication of the spouses to their children contributes particularly to the achievement of their own good. This dedication, which ideally should continue in some way right to the end of their lifetime, is the best safeguard each one has against falling back into self-concern - the big factor tending to disrupt conjugal union.

7.         The whole of c. 1095 deals with consensual incapacity; that is, with a condition of mind or will, present at the moment of exchanging matrimonial vows, which vitiated consent and so invalidated the supposed marriage. In a Catholic view, an incapacity for married life which originates after the moment of consent (supervening physical or psychic disability) has no invalidating effect. In such an eventuality, the maintenance of the unbreakable character of the bond (without prejudice to the possibility of separation) certainly calls for a special effort, which reflects the natural and christian seriousness of a true commitment to the married covenant and corresponds to what the spouses, by their "irrevocable personal consent" (GS, 48), pledge to one another: mutual fidelity "in good times and in bad, in sickness and in health... all the days of my life" (Ordo Celebrandi Matrimonium, n. 25; cf. GS, ib.).

            It is conceivable that an original incapacity, present at consent, should clearly appear only years after the actual wedding. Bearing in mind however that any invalidating incapacity must derive from some grave deficiency of mind or will regarding the essential obligations of marriage, it is very hard to conceive the case of a couple, of whom one at least is so incapacitated, living together in a normal and uneventful conjugal fashion over many years. One would expect the effects of the incapacity to show themselves and to become a source of growing disturbance, if not from the very start of the marriage, at least from early on. The maintenance of normal married life over a long period (say, ten or twenty years), while it does not absolutely rule out a possible pre-marriage incapacity, certainly does render its existence more unlikely and its proof much more difficult.

8.         The nullity of a marriage cannot be based simply on the fact that one party is alleged, as in the present case, "not to have lived up to the expectations" of the other (Acts, 35-36). What one has the strict right - in justice - to expect from the other partner in marriage, is the acceptance of what is essentially involved in the three matrimonial «bona». Insofar as one can speak of a 'right' to find other elements or qualities in one's spouse, it is a moral not a juridic right that is in question: one therefore which cannot be invoked before the courts of law. That one's partner has not lived up to one's expectations is not a grounds of nullity. If a person feels let down in such expectations, the only option open to him is separation.

            The tendency to see the "failure" of a marriage in the non-satisfaction of one's own needs, is scarcely christian. From the point of view of christian personalism, a spouse or a «con-sort» is not a person who satisfies "my" needs, but someone, with his or her individual and distinct character, to whom I make the gift of my self, in the joint give-and-take venture known as marriage.

            Marital rights are inseparable from marital duties; and, insofar as they can be termed "essential" (e.g. as under c. 1095), they relate to the fundamental values enshrined in the three augustinian «bona», not to particular modes of self-satisfaction.

9.         It is easy to say that ideally each spouse should contribute equally to the "bonum coniugum". In practice, however, equality of contribution is hard to measure morally, and impossible juridically. So, while a first impression might suggest that each one has an obligation to contribute to the "good of the spouses" in the same measure, a deeper analysis suggests that this is not necessarily so. A woman, after all, may marry a sick or disabled man with the purpose of devoting her life to his care; from the very nature of such a case, it would seem that she contributes much more than he does to the «consortium».

10.       Due discretion for marital consent relates to the assessment of the essential obligations of matrimony in itself, and has nothing to do with the motives or reasons for which a person marries. Whether the motives inspiring a decision to marry are deep or not (gratitude certainly could be a deep and powerful motive), and whether the decision itself is prudent or not, is a separate issue from (and one that in itself has no bearing on) a possible invalidating lack of discretion of judgment under c. 1095, 2.

            Nor is a lack of due discretion necessarily shown by the failure to foresee differences likely to arise from two strongly contrasting personalities. People are often attracted to one another precisely because of differences of personality; and many successful marriages are in fact based on the vigorous effort of the parties to harmonise their divergent characters - a process usually marked by conflicts and reconciliations. Such marriages could easily have failed had the parties made less energetic efforts at achieving understanding; their freewill was after all constantly in play.

11.       "Incompatibility" is a psychological concept, intended to denote the impossibility of any close interpersonal relationship being established or maintained between two particular personalities. From the viewpoint of christian anthropology, given the basic commandment of loving everyone without exception, it seems questionable that one can ever speak of absolute incompatibility. Psychologists themselves at times express scepticism about the validity of the concept of basic incompatibility. In a rotal case coram Raad of April 14, 1975, we read the reply of a psychiatrist: "Your second question involves the concept of 'essential incompatibility'. Do you mean by this, basic, unchangeable and irrevocable incompatibility? If yes, I am not sure it exists" (vol. 67, p. 258).

            Whoever alleges "incompatibility" as a grounds for incapacity under c. 1095, would have to prove not only that the condition of incompatibility between the parties was already present (although no doubt hidden, at least to them) at the moment of consent, but also that at that time it was bound eventually to emerge between them. Here christian and secular psychology may well part company. It smacks of determinism to hold that two persons, in love at the time of their wedding, were unavoidably destined to end up ten years later hating each other. It is extremely hard to see (and impossible, we suggest, to prove) that such a radical change can have been inevitable from the start. If it actually takes place, it is far more likely to have been an avoidable process that, through lack of effort, self-sacrifice, humility and prayer, was simply not avoided.

12.       The instruction of a case under grounds related to c. 1095 must aim at establishing whether a person showed signs of a gravely anomalous condition. Questions which relate to trifling defects - "uncommunicative, reserved, shy, unemotional..." - are irrelevant, and only serve to protract a case and to divert attention from what is essential. Such questions become all the more irrelevant if they relate to the personality, background, etc., of one party, when the grounds relate exclusively to the other. Moreover, it is on the moment of consent, not on subsequent married life nor on the circumstances or causes of the final breakdown, that questions must center. One must distinguish a pastoral dialogue from a strictly judicial inquiry.

13.       Everyone has certain personality "limitations" which can also be described as "disorders". However, unless these can be professionally diagnosed to be grave, and judicially seen to relate to the essential rights/obligations of marriage, they offer no basis, within the terms of both christian anthropology and canon law, for concluding to consensual incapacity. The Judge therefore must always ask the professional expert to make a concrete diagnosis of any possible personality anomaly or disorder, with reference above all to its severity and to its effect on human choice. An expert opinion which fails to diagnose a condition as severe, gives no support to a judicial decision of consensual incapacity.


14.       The single Judge in first instance states: "At first reading, the evidence seems to coalesce into a statement that a marriage of such length slowly died for lack of affection but was quite valid at the time of the the marriage... Yet, after an analysis of the strange events of their meeting and the differences in character, it is easy to see that his marriage was an act of gratitude [on the Petitioner's part] for her being such a good nurse to him... and that he entered the marriage without really knowing his future wife and realizing that they were two very strong people and that their lives would be constantly clashing over the years" (Acts, 114). Here the Judge seems to suggest that grounds of consensual incapacity emerge if a person is shown to have married for a "wrong" motive (such as gratitude), or to have failed to appreciate the difficulties that could arise from marrying the "wrong" sort of person. As we have pointed out in the Law Section, these are not valid reasons for concluding to incapacity under c. 1095.

15.       Going through the Acts, we are struck by a particular feature of this case, which is how well the parties speak of each other. The Petitioner emphasizes that both together were dedicated to their children (38-39); and that the Respondent in particular devoted herself to the home (52). He paints a most positive picture of her: "Academically, Pat was good at school" (50); "Patricia's reputation in the community is good" (53). "Because of her training as a nurse, Patricia's judgement is good. If she did not have knowledge of certain facts in order to make a good judgement, she would research the problem and seek to obtain the facts.... she was a perfectionist... She took life very seriously, sometimes too seriously. She always acted super responsibly... She is a good money manager. She definitely used to plan for tomorrow. Patricia would sacrifice for herself so that the boys would be well dressed. If we planned vacation, she would manage the money so that we all could go" (54-55).

            He insists that she "was a very good homemaker, the house was clean and the boys were clean and neatly groomed" (38); she was "considerate", "not selfish" (54). When asked in second instance, "how mature and emotionally stable was she at that time?", he replies: "She was a very quiet girl. She was a professional person... She's a super competent nurse" (147-148). "How do you feel she handled her responsibilities in marriage?": "She's an excellent mother, excellent. None better" (149). For her part the Respondent says: "He was an excellent father", and a good husband (62). In second instance she continues to speak his praises (165).

            One wonders if a serious pastoral effort at reconciliation, made in time, might not have proved successful (cf. c. 1676). In any case, the Petitioner's high esteem of the competence of the Respondent as a mother does not help his claim of lack of discretion on her part as a potential spouse.

16.       The Petitioner's only complaint about the "consortium" regards their sexual life; everything else was 'acceptable'. "With the exception of our sexual life, the rest of our married life was acceptable. We worked on projects together as far as the house was concerned; but we did very little together that did not concern the house or our family. In other words the intimacy I was seeking between my former spouse and myself was absent. Activities and concerns for our two boys covered up my real feelings and needs. Now I realize this provided me with an escape from having to deal with the real issue of my frustration and unfulfillment" (37).

            "I believe that we shared our marital responsibilities in a very just manner in regard to the house, the boys and the external running of our lives. What was lacking was an intimacy which I felt would lead us to experience a deeper and inner abiding peace with each other" (38).

            He claims frankly that she didn't live up to his expectations (35-36); "she did not fulfill my needs" (52). His complaint about sex life is that she would not share or experience it as he did. "I feel the non-acceptance of intimate sharing that takes place in a marriage indicated a certain level of immaturity" (55). "I do not think that she was or is capable of this type of intimacy that I desire and need" (36). In second instance: "Her physical needs and my physical needs weren't even on the same page" (149).

17.       He refers to a process of 'disintegration', though he places the beginning of the problem almost 20 years after the wedding ("When did the [marital] problem begin?" - "I would say about 1983": 56). "Sometime during the twenty-two years the disintegration of our marriage took place. When Gregg left for college I realized that my former spouse and I had nothing in common and that we had grown very much apart" (34). "Then it [the marriage] really came apart... Unfortunately, at that time I wasn't interested in getting back together again. I had gone I think beyond that point" (156).

            "We rarely argued because she was very non-expressive, non-emotional and not a very warm or outgoing person. This was our way of life until the boys were in College and the Christmas of 1986 was so disastrous that I found that she and I were actually strangers - we didn't know each other. Actually it was the presence of the two boys that kept us as a family" (2).

18.       Regarding the witnesses in the case, the second Sentence rightly observes that they "tell us hardly anything", and did not even know the parties at the time of the marriage (202). The first Court admits this (106). One witness is an "Adult Child of an Alcoholic" (ACOA); and wonders if the Respondent too might not be one (83). In fact the first instance Judge bases his decision partly on the Respondent's being an ACOA (115-116); an assumption which, as the Defender of the Bond in second instance notes, is made "without proper diagnosis" (121). The appeal Judges are correct when they say: "we have no evidence of this. Simply, there was some drinking done in her family, and the petitioner himself notes that all the men in her family drank, and when they got to be a certain age, simply stopped drinking. This is hardly typical of an addiction to alcohol" (202).

            Speaking about the Respondent's father, the Petitioner had said: "He was a heavy drinker. He functioned well... When I say a heavy drinker he drank from the standpoint of work. He was functional, a very functional man... he drank relatively steady, where he would fall asleep in the chair - that kind of thing" (150). Her brothers also drank; but he admits they were not alcoholics: "they seem to be able to turn it on and turn it off" (152).

19.       The clinical psychologist, RG, the court expert in first instance, states: "neither the petitioner nor the respondent are viewed as having had a diagnosable mental disorder at the time of the marriage. However, the respondent is viewed as bringing significant limitations of personality into the marriage which, while not diagnosable in severity, are nevertheless viewed as having constituted a significant barrier to the establishment of a mature relationship" (97). However the expert understands the term "significant", which he uses twice in this passage, it is clearly not in the sense of "severe" ("... not diagnosable in severity"). Therefore, as we pointed out in the Law Section, his opinion offers no support for a judicial decision of consensual incapacity under c. 1095. The expert's view, it may be noted, was given simply on the basis of examination of the Acts and tests of the Petitioner, and without his having seen the Respondent (106).

            Even if the Respondent in fact had "significant limitations of personality", constituting a "significant barrier to the establishment of a mature relationship", such a vague diagnosis is, we insist, inadequate to sustain a claim of grave lack of discretion under c. 1095, 2 (or for that matter one of incapacity under 1095, 3). In any event, this view of the expert does not seem to us to be corroborated by the Acts. In second instance, on the contrary, the opinion of the clinical psychologist, RW, does correspond to our reading of the Acts. Dr. W considers that both parties "were psychologically capable of starting and sustaining a marital relationship during the time period in question" (179).

20.       Here, it seems to us, was a normal marriage going through some of the normal difficulties of maturer age. The witness RH, who knew them only after the wedding, was amazed at the breakdown (I, 76). The Respondent says that the Petitioner "made several comments throughout our marriage to parents... that no matter what our problems were, we were always able to communicate"; her feeling moreover is that they actually became more attuned towards the end of their married life (61). She claims that the breakup was simply due to his falling for another woman (61-62).

21.       One feels that if the Petitioner had received more positive counselling, he might have escaped responsibility for the break up, which to our mind clearly rests on him. Over a three-four month period he saw a priest-counselor who "helped me more than anything get over the pain of this guilt" (157). According to his wife, the counselor told him "what he wanted to hear" (172). In first instance, the Petitioner himself testified: "I think one of the results of the counseling was to confirm my belief that our relationship was not one of husband and wife... During the counseling I learned... that I did not have to feel guilty about the failure of our marriage. I think the results were an acceptable feeling about divorce, and that it was not the end of the world" (47). We remain wondering to what extent the Tribunal of first instance tried to put canon 1676 into effect.

22.       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, on any of the grounds adduced".


            Given in the Tribunal of the Roman Rota, December 12, 1991.

            Cormac BURKE, Ponens

            Thomas G. DORAN

            Kenneth E. BOCCAFOLA