Sentence of January 10, 1995 (Dublin) (c. 1095, 2 & 3) [in part]

Consensual incapacity under canon 1095, 2° and 3° can arise only if the psychic defect or anomaly from which the person suffered at the time of consent made it impossible for him or her to exercise a minimal critical understanding of the essential rights/duties of marriage, or to assume its essential obligations. Essential implies what necessarily pertains to the essence of a thing. It is from the essentials of the matrimonial institution, and not from its accidental aspects, that its essential rights/obligations of marriage art to be drawn.

            "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" (*). Rotal jurisprudence is agreed in deriving these essential rights/obligations first and foremost from what is intrinsic to the three augustinian bona, which have always been considered as fundamental constitutive elements or qualities of marriage (cf. c. Parisella, d. 18 dec. 1980; c. Pinto, d. 30 maii 1986, n. 3; c. Lanversin, d. 31 martii 1987: R.R.Dec., vol. 79, p. 198; c. Stankiewicz, d. 20 aprilis 1989: vol. 81, p. 282, etc.).

            Jurisprudential reflection cannot limit itself just to indicating the source of essential rights/obligations. To be of practical service it must go further so as to specify as precisely as possible the scope of each of these; unless this scope is adequately defined, the solution of individual cases risks being arbitrary. Adequate precision seems available readily enough in the case of essential rights/obligations derived from the three traditional "bona". "Obligationes matrimonii essentiales... Quaedam sunt quae in tribus traditionalibus coniugii bonis iam continentur, ut puta obligatio servandi fidelitatem coniugalem (bonum fidei) et perpetuitatem consortii coniugalis (bonum sacramenti), aut obligatio acceptandi prolis conceptionem ex altero coniuge per actus modo naturali peragendos nec non prolem iam natam suscipiendi educandique (bonum prolis)" (c. Stankiewicz, loc. cit., p. 282).

            It is generally also proposed that the ends of marriage - the good of the spouses and the procreation/education of children (c. 1055, § 1) - are a further source of essential rights/obligations. Here however it is by no means easy to specify the scope of the obligations concerned; moreover care has to be taken so as not to arrive at inexact conclusions. Since it can truly be said that marriage is essentially ordained to its ends, one can no doubt speak of an essential obligation to tend to these ends; one cannot however posit any right to their effective achievement. Thus there is a right/obligation to conjugal acts open to procreation (and the acceptance of their natural fruit), but there is no "ius ad prolem", no right to actual procreation.

            Quite a number of rotal sentences (along with some of those noted above) list the "bonum coniugum" as a source of essential obligations (c. Jarawan, d. 10 martii 1989, vol. 81, p. 194; vol. 81, pp. 282-283; c. Civili, d. 21 februarii 1991, vol. 83, p. 116; c. Bruno, d. 19 iulii 1991, vol. 83, p. 465; c. Funghini, d. 18 iulii 1990, vol. 82, p. 640: c. Palestro, d. 5 iunii 1990, vol. 82, p. 478). However, since the "good of the spouses" is a new term in canonical and ecclesial usage, its nature and content are still very undetermined, and little if any precision has so far been attained in specifying the peculiar and rights/obligations which it may give rise to.

            Specifiying the nature, scope and limits of essential conjugal obligations becomes more difficult and a matter of greater debate, if it is sought to derive these obligations not from the basic concepts and terms canonized in the new Code but otherwise; e.g. from less precise notions that, rather than clearly describing the essence and ends of marriage, suggest broad aspects of what the matrimonial covenant involves or what it should ideally lead to: communion of life, interpersonal relationship, mutual psychic integration, etc.

            In the case before us today, the second instance judges, in reference to the the essential obligations of marriage, assert that "one of them has to be sexual giving and accepting" (Acts II, 27). Imprecise statements like this are to be avoided. If the obligation involved in "sexual giving and taking" means no more than being able to engage in sexual intercourse, little difficulty arises. But if the judges are suggesting (as would seem from their sentence) that there is an essential obligation to be able to endow sexual intercourse with a particular degree of passion, or to ensure that it is physically "satisfactory" to the other party, they seem to us to be entering into questions not subject to juridic measurement.

            It is not the competence of the law to determine what degree of sexual attraction one party must be capable of having or maintaining towards the other. With the Judges of first instance in the present case, we would ask: "how does one quantify this problem and make juridical sense of it?... The mere fact that a sexual relationship is unsatisfying or unsatisfactory, especially in the early stages of a marriage, is not reason to predicate either exclusion of the sexual dimension of the marital covenant or inability for the same. The absence of a strong sexual attraction is not a solid basis for claiming defective consent" (Acts, I, 43). We strongly concur with their view that "to judge the validity of a marriage on the basis of the degree to which a spouse enjoys sexual intercourse with the other spouse would be to introduce a subjective determinant which would be impossible to judge" (ib.). They rightly add: "aversion or distaste for sexual activity is something that can develop in a marriage when one party regrets one's choice of partner and becomes progressively less interested in that partner. This is sometimes colloquially referred to as "falling out of love" or "drifting apart". In that event, it is irrelevant to the question of the integrity of the act of marital consent" (ib).

            The second instance judges quote and apparently make their own the court psychologist's report on the rpd's sexuality: "while sexual encounters between partners in marriage is not the totality of the relationship, it does constitute a powerful stimulating factor. And, if one partner is not that sure of his/her sexuality, then there is a lacuna in the contract - there is not a mutual "traditio et acceptatio" of mutual rights over each other's bodies" (II, 26). The conclusions set forth here do not seem to us juridically acceptable. There certainly can be a valid exchange of conjugal rights and a valid marital relationship, despite dissatisfaction in sexual intercourse, little experience of sex, or little interest in physical sexual relations.

            To determine a person's awareness of his or her "sexual identity" seems a legitimate object of psychological study, although it does not appear that the parameters to be used are merely physical. However, unless one is dealing with grave anomalies such as homosexuality, the degree of awareness of one's sexual identity is not a factor that relates juridically to the essential rights/obligations of marriage under c. 1095.