Sentence of October 20, 1994 (Peoria) (c. 1095,2)

I. The Facts

1.         Rita et Laurence met in 1973 and became engaged very shortly afterwards. Their marriage took place in June 1974, when she was twenty one and he almost nineteen. Their conjugal life was happy for a number of years, and they had two children by common consent. Then he began to be unfaithful and, though she would pardon him, the relationship gradually declined. He finally left the home in 1989 and went to live with another woman.

            In Nov. 1990 she petitioned the Tribunal of Peoria for the marriage to be declared null "on the grounds of lack of due discretion on the part of one or both parties". In April 1991 the court gave a negative sentence which was appealed to the Appeal Tribunal of the Province of Chicago. In Jan. 1992, after further hearing in which the respondent refused to cooperate, the original decision was reversed and the marriage declared null on both grounds adduced.

            The case then went to Roman Rota, where the usual gratuitous legal representation was granted to the petitioner. The doubt having been concorded on April 29, 1993, a vain attempt was made to clarify some points through further examination of the parties; neither however responded to citations received.

            Having received and studied the observations of the Defender of the Bond and the brief of the petitioner's Advocate, we must now reply to the doubt, that is: "whether the nullity of the marriage has been established on the grounds of a grave defect of discretion of judgment in both parties concerning the essential rights and duties of marriage to be mutually given and accepted (can. 1095, n. 2)"

II. The Law

2.         Enormously increased investigation in this century into the concept of "mental health", has led to acceptance of the fact that psychic infirmities are much more frequent than was formerly acknowledged. It has been established not only that such pathologies exist in varying degrees, but that many psychic disorders affect a person just in some areas of his or her life, while leaving intact his or her capacity to act normally in other areas. In the field of civil law and secular courts, these findings have opened up new debates about the proper legal understanding of personal responsibility or accountability, and about the validity of certain acts.

            These developments in the psychiatric and psychological sciences have had their effect also on the law of the Church, and very particularly on jurisprudential criteria regarding a person's capacity for contracting marriage. Canon law has of course always recognized that a serious psychic deficit may make a person incapable of valid matrimonial consent. Until about the middle of this century, possible declarations of nullity on such grounds were investigated under the heading of "amentia" or "dementia" (here we leave aside certain questions of impotence). Then, following the developments in secular sciences just mentioned, canonical jurisprudence too came to allow that a person can suffer from a grave psychic defect which incapacitates for valid matrimonial consent, without thereby being necessarily classified as "out of his or her mind" or "mad". The abundant jurisprudence and doctrine on the subject (which offered considerable diversity in the analyses made, criteria used, and terminology suggested) coalesced in the Code of 1983, in c. 1095, which now provides the framework, main principles and precise terms of reference for dealing with pleas of nullity on the grounds of psychic incapacity for marital consent.

3.         Number 1 of the canon offers no particular newness or difficulty, and is in fact seldom invoked. In practice the importance of the canon lies almost totally in nos. 2 and 3. Two main criteria govern the questions of consensual incapacity which they deal with. First, only a grave psychic impairment can give rise to incapacity for marriage. Second, an incapacity is relevant under the canon only if it relates to some essential right or obligation of matrimony.

4.         The first of these two criteria is rooted in natural justice. A mild or moderate defect of personality cannot be held to nullify such an elementary and universal human and ecclesial right as that to marry (cf. c. 1058). Jurisprudence has always held that the psychic disorder must be grave. The principle is clearly stated in a sentence of 60 years ago: "Nor is it enough, in order to exclude freedom, to show that someone suffered from some mental illness; it must be proved that, in view of the gravity of the illness, he could not give consent" (c. Massimi, Nov. 20, 1931: R.R.Dec., vol. 23, p. 464.). A Sentence of Feb. 24, 1961, coram Sabattani (one of the official "Fontes" given for c. 1095, 2° ) states it with equal clarity: "Not only the mere fact of some disorder, but the gravity of the disorder itself must be established" (vol. 53, p. 120.). Again we read in a sentence coram Serrano, "Not all irregular behavior is a sign of a personality so disturbed that it must immediately be held incompetent for giving conjugal consent as a formally human act" (Apr. 30, 1974: vol. 66, p. 313.). The same distinguished judge in a more recent sentence insists that it is necessary that "a grave and certain abnormalcy must occur in deliberation and in the subsequent consent, so that the marriage can with certainty be declared null" (Oct. 29, 1987: vol. 79, p. 582.). We can say that this principle is universally accepted (cf. c. Anné, March 22, 1975, vol. 67, p. 184; c. Raad, April 14, 1975, vol. 67, p. 246; c. Pinto, Oct. 28, 1976, vol. 68, p. 387; c. Davino, in una Burdigalen., May 18, 1977, n. 4; c. Lefebvre, Jan. 21, 1978, vol. 70, p. 48; c. Di Felice, March 14, 1979, vol. 71, p. 97; c. Bruno, April 18, 1980: vol. 72, p. 275; c. De Lanversin, Jan. 20, 1981: vol. 73, p. 25; c. Ewers, April 4, 1981: vol. 73, p. 221; c. Pompedda, Feb. 19, 1982, vol. 74, p. 91; c. Jarawan, June 19, 1984, vol. 76, p. 371: c. Giannecchini, June 26, 1984, ib., p. 393; c. Funghini, in una Toletana in America, April 29, 1987, n. 2; c. Boccafola, in una Jolietten. Dec. 13. 1989, n. 13; c. Doran, May 17. 1991, vol. 83, pp. 306-307; c. Bruno, July 19, 1991, vol. 83, p. 466).

5.         No significance attaches to the fact that while no. 2 of c. 1095 states specifically that an invalidating defect of discretion of judgment must be grave, the "incapacity for assuming" dealt with in no. 3 of the canon is not qualified by a like adjective. In no. 3, the omission of any word such as "grave" is wholly natural. Its use would in fact have been illogical and confusing, since an incapacity cannot be qualified as "grave" or "less grave"; it either exists or else it does not. Evidently if one begins to distinguish between "mild", "moderate" and "grave" incapacities, one is speaking about degrees of difficulty, not of real incapacity; and "for the canonist the principle is clear that incapacity alone, and not just difficulty, in giving consent, renders marriage null" (John Paul II: Address to the Roman Rota, 1987: AAS, vol. 79, 1457)

            With regard to the causes ("of a psychic nature") inducing the incapacity considered in c. 1095, 3° , the canon does not specifically say that these must be grave. But it is evident that a phenomenon as extraordinary as an incapacity to exercise such a natural and fundamental human right as the "ius connubii" must have a serious cause. The grave effect - incapacity - would be inexplicable if it did not proceed from a grave cause (cf. decis. by the undersigned ponens in una Carolinana, July 14, 1994, no. 9). When Pope John Paul II in his addresses to the Rota in 1987-88, insisted on this, he was simply stressing the obvious implications of the canon: "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, vol. 79, ib.); "only the more serious forms of psychopathology are capable of undermining the substantial freedom of the person" (vol. 80, 1182).

6.         A minor but not totally unimportant point can be mentioned here. The fact or opinion that a psychic disorder is "constitutional", does not prove that it is grave. Slight defects can also be constitutional. Everyone is marked by some virtues or defects which are rooted in their nature: a person may be orderly or disorganized in thought or action, placid or quick-tempered, bold or shy, passionate or apathetic... When qualities such as these are present, they can in many cases be properly called constitutional. But they can be present also in a mild or moderate degree; in which case (quite apart from the question whether they can be related to the essential rights/obligations of marriage) a plea of consensual incapacity cannot be upheld simply on the basis of their proved presence.

7.         As we turn to the second criterion, a few preliminary observations may be useful. The law is interested in personality disorders (which properly fall within the field of medicine or psychiatry) only insofar as they are productive of legal consequences, particularly as they may affect capacity for acting with legal effect. Applied to the issue of capacity for valid marital consent, this means that medical or psychiatric evidence of the presence of a personality disorder at the moment of marriage is simply a first (and in itself certainly not adequate) step in proving consensual incapacity. The interest of the law goes beyond the presence of a psychic anomaly, and focusses on the relationship between the disorder and the act of consent. To be legally relevant, the anomaly must explain the incapacity for consent; more precisely, it must stand in relation to it as cause to effect. What has to be proved, in other words, if the disorder is to be relevant, is that incapacity - not any type of incapacity, but incapacity for marital consent - was produced by the disorder. If this is not established, the disorder remains irrelevant to the question before the Court.

            Given the variety of personality disorders and the broad range of their effects, many disorders would seem per se to have little or nothing to do with capacity for marital consent. Suppose a person to be afflicted by a paranoid personality disorder marked by persecutionary obsessions, of which however just certain professional colleagues or business rivals are the object. Even if the disorder were grave, are there any real grounds of justice on which it could be held to incapacitate for the establishment of the marital covenant? A situation is not inconceivable, after all, where the other party sympathizes with and even shares their partner's suspicions or persecutory manias against the persons in question. Would this third-party-directed paranoid disorder deprive the couple of the right to marry?

            Under c. 1095, therefore, a psychic anomaly has relevance only if it impacts directly on the necessary object of conjugal consent. "Regarding proof, it is not sufficient to show the existence of some particular mental disease. The relation between that disease and marital consent must also be demonstrated" (c. Bejan, Oct. 28, 1970: R.R.Dec., vol. 62, p. 947.). "As regards to proof, it should be remembered that it is not enough to show the existence of a psychic illness, but the relationship between the illnes and consent must be demonstrated" (c. Bruno, April 18, 1980: vol. 72, p. 275.).

8.         But c. 1095 is even more precise as to how the anomaly must affect consent if it is to invalidate it; and here the second criterion governing the application of the canon is provided. It is not sufficient that the anomaly be grave, nor that it has a certain effect on the consent given and its object. It only makes the consent ineffectual - null - when it affects the essential rights/obligations of marriage; i.e. when it is of such a nature that it renders a person incapable of making a minimally critical judgment of those precise rights or obligations which must be considered essential to marriage, or incapable of freely choosing and effectively assuming them. An anomaly, therefore, however grave, which affects a person in understanding, choosing or assuming non-essential rights or obligations is inadequate to generate consensual incapacity. "However not any incapacity or psychic anomaly invalidates marital consent, but only that incapacity which affects the essential rights-obligations of matrimony" (c. Colagiovanni, May 21, 1985: R.R.Dec., vol. 77, p. 255.).

            The canon leaves no doubt about this, since the scope of both numbers 2 and 3 is textually limited to cases where the incapacity concerns such essential rights or obligations: "iura et officia essentialia"; "obligationes essentiales". So, even if it is established that a personality disorder was present in a grave form at the time of the wedding, this is inadequate to prove consensual incapacity unless the essentiality of the obligation it affects is equally established. "The sole criteria to determine whether one is treating a serious canonical incapacity is by relating and referring the alleged incapacity to the essential obligations of matrimony" (M.F. Pompedda, in AA.VV.: Incapacity for Marriage: Jurisprudence and Interpretation, P.U.G., Rome, 1987, p. 201). Following the tenor of the canon, therefore, the judge must look in each case for the specification of this obligation, and in particular for the justification of why it is held to be essential.

            The point bears reiteration: merely to establish that a person at the time of the marriage suffered from some personality disorder, however grave, does little of itself to advance a plea of consensual incapacity. There are other questions - of equal or greater importance - still to be clarified; regarding both the rights/obligations claimed to be affected and their essentiality to marriage. Kleptomania is certainly a personality anomaly or disorder; and it could be grave. But one does not see how it can be held to affect some essential obligation of marriage and thus to incapacitate for consent. Otherwise thieves could never validly marry.

9.         In broad synthesis, then, the incapacity envisaged in the canon requires that the would-be contractant's psychic faculties be seriously undermined precisely with regard to the substance of the conjugal interpersonal relationship constituted and undertaken at consent, not just to the accidental aspects of this conjugal relationship. Conditions or disorders that do not impinge on the essence of marriage are irrelevant to the issues raised by the canon (cf. c. De Lanversin, July 18. 1985: vol. 77, p. 381; c. Colagiovanni, July 18, 1989: vol. 81, vol. 81, p. 527; c. Davino, April 28, 1977, vol. 89, p. 234). Jurisprudence has no doubt about this: "It is not a matter of relations between the spouses which domestic life demands or recommends in its social expressions, above all in our days, but of the relations strictly (cf. can. 19) connected with the essential obligations, rights and duties of matrimony" (c. Giannecchini, Nov. 8, 1991: vol. 83, p. 717).).

10.       At the same time, it can be a matter of no suprise to find that jurisprudence is progressing slowly in determining precisely which are these essential marital rights and obligations, "the definition and determination of which is progressing with difficulty", in words of the sentence just quoted(loc. cit.). The matter is too important to allow for hurried conclusions. Indeed, "it is difficult to precisely circumscribe and determine the essential obligations of marriage. These no doubt imply those that flow from the constitutive properties of the matrimonial institution itself, and from its natural ordination" (c. Funghini, July 18, 1990: vol. 82, p. 640.). There is general agreement that they certainly include in the first place those derived directly from the three augustinian "bona": "in the first place, the essential obligations are those connected with and deriving from and therefore corresponding to the actuation of those which, in the long-standing theological-juridic tradition of the Church, are called the three "goods" of marriage: offspring, fidelity and the perpetuity of the bond" "in primo luogo, obbligazioni essenziali sono quelle connesse e derivanti e quindi corrispondenti all'attuazione di quelli che, per antichissima tradizione teologico-giuridica della Chiesa, sono chiamati i tre bene del matrimonio: prole, fedeltà, perpetuità del vincolo" (M.F. Pompedda: "Incapacità di natura psichica", in Il Codice del Vaticano II, Matrimonio Canonico, 1985, p. 146; cf. c. Pinto, July 8, 1974, R.R.Dec., vol. 66, p. 501; c. Pinto, May 30, 1986; c. Pompedda, July 3, 1979, vol. 71, p. 388; c. Giannecchini, June 26, 1984, vol. 76, p. 392; c. Stankiewicz, May 28, 1991: vol. 83, p. 347, etc.). It is equally certain that they do not embrace accidental though desirable moral qualities, which cannot be considered as essential or constitutional for the "esse" of married life, though they no doubt make for its "bene esse" (cf. c. Pompedda, Jan. 15, 1987: vol. 79, p. 12, n. 7; c. Colagiovanni, March 20, 1991: vol. 85, p. 175). "It will be up to the prudence of the judge in each case to carefully weigh all the elements and subject to examination those elements which are essential in order to contract validly, not settling his attention on those which, however desirable, do not of themselves enter consent nor affect its validity by their absence" (c. Davino, April 28, 1977, vol. 69, p. 234.).

11.       The right "ad communionem vitae" or "ad consortium vitae" is at times posited as essential within the terms of c. 1095. No one however, as far as we know, has ever undertaken any serious analysis of this right, so as to show its autonomous substance or identity. Really the "ius" in question is properly identified as a "ius ad communionem vitae coniugalis" or "ad coniugale consortium vitae"; and as such it is simply synonymous with a "ius ad matrimonium". We are none the wiser for being told, without further analysis, that such a right must be exchanged in marital consent; for this is obvious. If this "communio vel consortium vitae" gives rise to some autonomous right, the distinctive nature of this right needs to be made clear. But we still seem to remain in a position already noted ten years ago: consideration of this right, in both doctrine and jurisprudence, "still seems very far from having attained any evident juridical formulation" (M.F. Pompedda: "Incapacità...", op. cit., p. 146). Not long after, in a rotal sentence, the same author reiterated: "we readily acknowledge that a clear notion of the substance of this communion of life has not yet been provided" (c. Pompedda, April 11, 1988: vol. 80, p. 200.). It seems unwise to posit as essential what is not clear.

12.       That the anomaly be present at consent, is so obvious a requirement as scarcely to merit comment (consent can be rendered invalid only by a factor present when it is given). One should however note the practical difficulties that arise in establishing adequate evidence on this point. Moral certainty (cf. c. 1608, § 1) about the presence - at the moment of consent - of a grave incapacitating condition becomes very hard to achieve, if nothing emerges or is testified to in the Acts which reasonably indicates the presence of an clearly abnormal condition (not simply of normal psychic or characterial defects) in the years preceding marriage. In particular, the absence of any pre-marriage documented clinical history (in an age when psychic troubles are so common and practically no one is reluctant any longer to consult a doctor about them or to seek treatment) is a major negative factor - regarding proof - which is hard to offset afterwards. Expert opinions "super actis" offer very little in the way of true professional expert help, and the same can generally be said of psychological tests carried out several years after the wedding (cf decis. of undersigned, in una Dublinen. March 3, 1994, no. 19). They may give more precision of nomenclature to anomalies whose presence already emerges from the "lay" evidence. But if such opinions or tests are not positively supported by this lay evidence, they cannot be given great weight. They must be held to lose practically all value for judicial purposes, if they are in contradiction with what clearly emerges from the rest of the Acts.

13.       The relativity of incapacity. The appeal judges in the case before us, having suggested that "sexual involvements of a teenage male Respondent with an older woman point to absolute grave psychic dysfunction precisely in the sexual area", add: "At the least the dysfunction could be relative in regard to this marriage under consideration" (Acts, II, p. 58). A phrase as solemn-sounding but as vague as "absolute grave psychic dysfunction precisely in the sexual area", is an insufficient basis to justify a declaration of consensual incapacity. The nature of the sexual dysfunction would have to be established; and the reason why it would incapacitate made clear. We are more struck however by the added phrase, "the dysfunction could be relative in regard to this marriage under consideration". It is hard to follow the import of the distinction which the judges seem to be drawing here between "absolute" and "relative" anomaly. An incapacity for matrimonial consent is always relative - precisely to essentials of marriage as such (and hence to the marriage being judged). What is untenable is the proposition of "relative incapacity", where the relativity is not to the obligations of marriage as such, but to the particular person chosen as spouse, or to the interplay between the individual idiosyncrasies of the two distinct personalities united in the marriage, and to the eventual tensions that the meeting of the two can create.

III. The Argument

14.       Discretion of judgment in the petitioner. The evidence brought forward by the petitioner does not strengthen her case, but rather the contrary. She herself bears witness to the excellent family background she had and to the example of dedication given by her own mother (I, 14).

            Regarding her discretion andmaturity at the time of the marriage, she testifies: "I had always considered myself as very stable and mature beyond my years" (13). "I feel I was very mature for my age prior to getting married" (23). The respondent confirms this in first instance, sstating that the petitioner was "very mature and responsible" in the period before marriage (43), and prepared to contract it (47).

            The petitioner, asked about her readiness and preparation for entering marriage - "Compared to other people your age, how ready were each of you for marriage?" - , replies: "I had lived on my own for 2½ years. I knew what it was to be self-supporting. Larry had worked for 3 years while going to school, and so had learned to deal with responsibilities. We had spent so much time together, and felt we knew each other well" (7). When her mother is asked if the petitioner was prepared to undertake the obligations of matrimony, she answers: "Yes. Rita was very mature for her age and having been on her own for a long time I think she was ready to settle down" (79). Janet, her sister, says that she was "very mature for her age at high school graduation. Learned to accept responsibilities very early" (93). Her brother, Kenneth: "She always seemed to handle problems by herself and did very well with her responsibilities" (83; cf. 89/26).

            It is true that the parties married at a fairly young age, but there is no indication of any special immaturity in either, but rather the contgrary. The petitioner declares: "My family was very happy for us. If they felt we were too young, they kept it to themselves" (7). And the witnesses confirm that she was responsible in her work in her job at home (cf. 98; 103; 108).

            Only the parents of the respondent assert, in a rather veneric way, that the petitioner was "young and immature" (52). Similarly, asked whether the aprties were mature enough, they reply: "Probably not" (58).

            Both parties had a very sound approach to the obligations ofmarriage. The petitioner declares, "this was for a lifetime" (6); "Larry and I had every intention of being faithful to each other" (8).

            In concise and clear words, whe desribes the beginnning of their conjugal life together. In the first years, "Everyone thought we had the 'perfect marriage' and were the 'perfect couple'" (8). "We always felt we had the perfect relationship, total dedication, and so happy. If this wasn't a good marriage, I didn't know what was" (11).

15.       Discretion of judgment in the respondent. To the question, "Were there any characteristics about your former spouse that struck you as unusual or problematic?", the petitioner says, "No" (5). She believed that in him she "had found someone really special" (16), and affirms that he had had a good family background, (25), enjoyed good health (26-28), and was competent and looked up to in his job (29). She insists moreover, "Larry was not prone to making mistakes, he seemed to think things through" (ib.). The only mistake on the man's part cam after marriage: he "exercised poor judgement and was irresponsible in his decision to get involved with other people outside of our marriage" (29).

            It is true that the respondent states, "I do not feel I was old enough or mature enough" (47). This however is non confirmed by the witnesses. The petitioner's mother says: "I felt he was mature for his age when I first met him" (74). "I felt Larry was ready to settle down even though he was young. Had worked and was ambitious" (75). Asked if he was prepared, she replies: "I thought that he was" (79). Others state that he was hard-working and responsible (94; 98; 108). Kenneth, the petitioner's brother: "Even though they were fairly young they seemed to have a good outlook on life" (85).

16.       Pre- and post-marriage circumstances. During their engagement, the petitioner says, "We had a lot of respect for each other's feelings... My father passed away shortly after we started dating, and Larry was a strong support for me at that time" (5). "Larry and I never lacked in communications; sharing feelings, ideas, daily activities, thoughts of and for the future" (6).

            She states that they communicated together very well until the time when the respondent began to be unfaithful (30). Moreoever, even after his infidelity, they were reconciled and tried for two years to rebuild their married life. "When our youngest daughter was 4, Larry had an affair, and walked out on us. We got back together after about 3 months, but the affair continued for over a year... We worked at rebuilding our marriage for 2 years after the end of his affair" (8). The petitioner's mother, asked if the divorce came as a surprise to her, replies: "Very!... Larry was like a son to me and of all my children I thought their marriage was the most stable" (77).

17.       Expert opinions. The court expert in first instance found "no mental or emotional disorder" in either party (128-129). The petitioner at the time of the marriage seemed to have been "responsible, dependent, self-depreciative, impulsive..." (128). He speaks of a "close to moderate" immaturity on her part. The first instance Judges accept this, but rightfully say that it falls short of a grave lack of discretion (151).

            As to the respondent, the expert gave the following opinion: "At the time of the marriage I see Larry as a responsible, supportive, ambitious but immature and impulsive young man" ..."I am doubtful that communication was very deep..." (129). "I see his immaturity, dependency, and impulsiveness at the time of marriage moderate in degree" (130).

            In second instance, Dr. R. Walker gave an expert opinion based on a reading of the Acts: "neither was psychologically ready to make a marital commitment when they attempted to do so. Their decision to wed was an impulsive one. The two were infatuated with each other... For a few years, the petitioner was sure they had a successful union because she wished that they did and because she had to have, was driven to have, a good marriage" (II, 8). The expert seems to be speaking here of the motivation of the petitioner, which may well have been strong; but this in no way shows a defect of discretion of judgment, nor should the two be confused.

            The expert adds: "The two never had a solid, mature relationship, especially because the man gave little or nothing to it. As husband and wife, they did not know who they were or how they should act" (ibid.). It is very hard to reconcile this opinion with what the petitioner testifies about the first years of their married life together, and with the considrable length of time that it lasted.

            We also take note of the concluding words of the expert: "In brief, both people were much too focused on self to be able to contribute to a marriage in a mature manner. One difference between the two individuals was that the man was much more overtly selfish. The woman gave a lot to the man but basically because she expected and even craved that he would give a lot to her in return" (ib. 10). This opinion may be of value as an analysis of the failure of the actual married life ("in facto esse)"; they neither illustrate nor prove a possible defect of capacity at the moment of consent itself ("in fieri").

18.       Relative incapacity. In reversing the first instance sentence, the Appeal Court appears to invoke the concept of "relative incapacity". "The Defender of the Bond in First Instance insists on [the need for] "grave psychic dysfunctions" to reach an affirmative decision to this plea. He does not take into account that a grave dysfunction can be either absolute or relative. Certainly early and repeated sexual involvements of a teenage male Respondent with an older woman point to absolute grave psychic dysfunction precisely in the sexual area. At the least the dysfunction could be relative in regard to this marriage under consideration" (II, p. 58). In our «In Iure» considerations, we have already dwelt on the unacceptable theoretical reasoning which seem to underlie this opinion. Given that, however, there are some other points to be noticed. The "proofs" presented by the judges are wholly conjectural. They speak of "repeated sexual involvements... with an older woman", when in fact all we have is an assertion made by the petitioner alone (and in a not wholly consistent fashion: cf. I, 28/8 ac II, 13), and in no way proved. Moreover, they suggest that these "involvements" "point to absolute grave psychic dysfunction"... [or] "At least the dysfunction could be relative..." The judges do not explain how, from these conjectures, they arrive at moral certainty regarding consensual incapacity under c. 1095, 2° . Whatever might be said if the grounds in the case were the exclusion of the "bonum fidei", or even incapacity to assume the essential obligations under no. 3 of canon 1095, there is no necessary or obvious connection between pre-marital "sexual involvements" and a grave lack of discretion of judgment under c. 1095, 2° .

19.       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 either party on the grounds put forward".


            Given in the Tribunal of the Roman Rota, October 20, 1994

            Cormac BURKE, Ponens

            Kenneth E. BOCCAFOLA

            Franciscus LÓPEZ-ILLANA