Sentence of July 18, 1996 (Rio de Janeiro) (c. 1098: error)

[English version: Studia canonica 32 (1998), pp. 243-252]

I. The Facts

1.         Martha, a school teacher, was 32 years old when she met John, a business man four years her senior, as she was returning from church. John told her that he had been observing her for some time, and soon proposed marriage. The parties were engaged in May 1983. The engagement was very normal and peaceful, being spent almost always in the house of Martha, with whose family John got on very well. He was considered by all to be an ideal match; yet immediately after the wedding, in September 1983, Martha states that she observed a radical change in the man's personality. She claims that already on the honeymoon he became rude, a liar, having no care for her, and even cruel and violent. Their life together, from which no children were born, went on for three years. Finally in 1986 she returned definitively to her family.

            The next year she petitioned the Tribunal of Rio de Janeiro for a declaration of nullity of the marriage. The grounds were concorded as error by the woman regarding a quality of the man, the man's incapacity to assume the essential obligations of marriage, and his exclusion of offspring. The instruction of the case consisted in the evidence of the petitioner, her parents and brother. The respondent, although cited, did not reply and was declared absent from the trial. A negative sentence to all grounds was handed down in April 1991. The petitioner appealed the case and in October 1992, after a further instruction, the Appeal Tribunal of São Paolo reversed the decision on the one grounds of error by the woman regarding a quality of the man.

            The case then went to Roman Rota, where the usual gratuitous legal representation was granted to the petitioner. After the concordance of the doubt, a supplementary instruction was undertaken. However, once the acts were published, the petitioner's advocate asked that the grounds be added of error deceitfully caused in the petitioner, as in first instance. The petition was admitted by the Turnus in October 1994. A further instruction followed. Now, having received and studied the observations of the Defender of the Bond and the brief of the petitioner's Advocate, we must reply to the doubt which in its final form is: "whether the nullity of the marriage has been established on the grounds of error on the woman's part regarding a quality of the man directly and principally intended; and, subordinately, as in first instance, on the grounds of error deceitfully caused in the petitioner under the terms of c. 1098".

II. The Law

2.         Conjugal interpersonality. Friendship and marriage are among the highest forms of interpersonal relationship. Friendship is generally a consequence of two or more persons finding congenial qualities in another or in others which lead them to cultivate a close relationship, marked by mutual esteem, affection and loyalty, but seldom if ever by any formal bond of a juridic nature. Marriage obviously goes much farther than friendship. It radically changes the nature of a relationship which in its beginnings, like friendship, was probably distinguished by the simple awareness of congenial qualities. The relationship that leads to marriage is in any case already quite particular inasmuch as it is between just one man and one woman; this exclusive character - just between two - becomes ever more intense as the relationship turns from liking to love. Then the presence of pleasing qualities (probably no less present in many other acquaintanceships between just two persons) no longer suffices to explain the growing attachment between these two. Any adequate explanation must take into account another unique element: that of human sexual attraction, understood not as a merely physical or animal phenomenon, but rather as a tendency towards conjugal union with a person of the other sex, seen precisely as a potential and desirable husband or wife, someone to be bound to in a covenanted union for life; in which is found "a singular love, in which no third party shares" (St. Bonaventure: Sent. Lib. IV, d. 33, art. 1, q. 2).

            Certainly then, the qualities one finds (or thinks one has found) in another person, enter very largely into the decision to marry him or her. But, in anything except extraordinary circumstances, whoever makes the marital choice is aware of choosing a person, rather than one or several qualities. The unlikelihood of a marital choice which is essentially the result of a meticulous sifting of qualities, appears stronger in the light of the anthropological fact just mentioned, i.e. that the decisive factor bringing a man to prefer one woman over all other women (or a woman to prefer one man over all other men), is so often an element of sexual attraction (not necessarily, be it repeated, exclusively or mainly physical), which tends to defy rational explanation or analysis. Hence the often verified difficulty of the lover to give to third parties a "logical" or satisfactory reason for being in love with a particular person.

3.         Error concerning a quality of a person. Having said this, it must be added the Church's law does nevertheless contemplate the possibility that the fundamental motivation of a marital choice be a quality believed to be possessed by the person chosen as spouse, rather than the person himself or herself. The law at the same time expresses the highly restricted conditions under which an error about the quality in question may offer grounds for declaring null the marital consent so motivated.

4.         That the hypothesis mentioned is to be considered unlikely, and the canon to be interpreted strictly, appears clear from the unusual way in which the text is drafted: "Error concerning a quality of a person, even if such error is the cause of the contract, does not invalidate matrimony unless this quality was directly and principally intended" (c. 1097, § 2). The negative wording of the first part of this paragraph - "Error concerning a quality..., even if the cause of the contract, does not invalidate matrimony" - strongly circumscribes the scope of the exception stated in what follows: "unless this quality was directly and principally intended". One can in fact distinguish two aspects to the negative norm with which this second paragraph of the canon begins:

            a) Error concerning a quality of a person does not invalidate matrimony. So the simple fact that a person entered into marriage under a quite mistaken impression concerning a quality (even an important quality) of the other party, has no invalidating effect (always allowing for the possible application of c. 1098; a canon whose presence in the 1983 Code offers a new remedy, not formerly provided, for violated rights).

            b) Marriage is not invalidated by error concerning such a quality, even if the error was the cause of the contract, "that is if the consideration of some quality constitutes at least the reason or motive of celebrating marriage with the partner" (c. Stankiewicz, July 22, 1993: R.R.Dec., vol. 85, p. 596). This embraces much more serious cases; i.e. of the person who claims that it was because of the quality mistakenly attributed to the other that he or she contracted, and that they would not have consented if they had been aware of the truth regarding that aspect of the other's character. Even in such a case - where the mistaken belief of one party about another is the very cause of giving consent - the marriage is not invalid (again allowing for the possible application of c. 1098).

5.         For the application of the canon, it must be proved that the party's intention was directed first and foremost to the quality, and only in a secondary fashion to the person he or she considers to possess the quality. This corresponds to the "third rule" of St. Alphonsus which has shaped the redrafting of the canon: "If consent is aimed directly and principally to the quality, and less principally to the person, then the error regarding the quality redounds in the substance. It is otherwise, if the consent is aimed principally to the person and in a secondary way to the quality. For instance, if someone says: "I want to marry Titia, whom I believe to be of a noble family": then the error does not redound in the substance, and hence does not invalidate the marriage. It is otherwise if he were to say: "I want to marry someone of a noble family, such as I believe Titia to be": for then the error redounds in the substance, because the quality is directly and principally intended, and the person less principally" (Theol. Mor., IV, n. 1016, p. 179).

6.         The difference between a quality which was "the cause of the contract" (an error here does not invalidate), and a quality which was "directly and principally intended" (in which case an error does provoke invalidity), does not appear as easy to establish. Jurisprudence has come to hold that the latter occurs when the quality is intended more than the person ("qualitas prae persona intenditur": c. Canals, Apr. 21, 1970: R.R.Dec., vol. 62, p. 371), when in other words the fundamental object of marital consent is not the person of the other, qua person, but some quality which (erroneously, as it turns out) is judged to be possessed by him or her. So the case contemplated by the canon is that where a particular quality is so important to the contracting party that, in giving consent, he or she principally "intends" that quality - intends, so to speak, to "marry" that quality - , and only in a secondary and subordinate fashion intends to marry the actual person presumed to possess the quality.

7.         In this extreme case considered by the law, the other person has so little importance as a person in the mind of their partner, that some commentators see him or her reduced to the level of an "abstraction". Giacchi, for instance, says: "the subject wishes to marry, so to speak, the quality in question, or rather, to express it better, an abstract type of person constituted by the abstraction of that quality (for example, a virgin, a nobleman, a diplomat, etc.)" (Il Consenso nel Matrimonio Canonico, Milan, 1950, p. 52).

            If few people seek an abstraction in marrying, fewer still would wish to be evaluated and chosen maritally in terms of an abstraction. No doubt the hypothesis considered by the law - of the contractant seeking to marry the quality more than the person - may occur in practice; but it seems a strained and unlikely hypothesis, and one of no easy proof.

8.         Aspects of proof. As can also be gathered from the negative wording of the canon, strict proof must be offered in accordance with exacting requirements, if a declaration of nullity is to be justified under these grounds. Apart from the obvious requisite that the intention regarding the quality must have been antecedent to consent itself, and have been consciously formulated in the mind of the person, proof must be forthcoming that: 1) the quality was not only intended, but directly and principally intended; 2) the quality was in fact absent in the other party at the time of consent (a post-matrimonial loss of a quality could not affect consent).

9.         A further point needs special emphasizing. It is not the simple defect of a particular quality, even if this quality were principally intended, which can cause nullity; it is an error about the quality. There must have been not only a principal intention regarding the quality, but also an actual error or false judgment about it, concretely about its presence. Here one has to be careful to distinguish ignorance and error, for they are not the same. Error signifies incorrect knowledge; ignorance, simple lack of knowledge. In the case of error therefore there is a judgment, while in case of ignorance there is not. Hence one must take account of a third essential element of proof: 3) that the person intending the quality must in fact have judged the other party to possess it.

            Proof is therefore required of a positive act of judgment by the person wishing to contract, that the other party possessed the quality in question. If a person indeed wants a particular quality in a future spouse, but simply ignores (has formulated no specific opinion as to) whether the person chosen possesses that quality or not, one can speak of "ignorance regarding a quality" but not - as the canon requires - of "error about a quality".

            "The existence of the error in the will of the contracting party must be examined and proved by adequate arguments, so that it can be held that the person before the wedding intended to direct his consent by a positive act of the will to a quality of his partner. An error cannot stand if the party, at the time of the marriage, had direct or indirect knowledge of the absence of the required quality in the other, but in no way took care to investigate the matter" (c. Pompedda, May 3, 1993: R.R.Dec., vol. 85, p. 365).

10.       Importance of the quality. The number of qualities attributable to the human person is almost limitless. Jurisprudence, in keeping with the expressed mind of the Legislator, holds that not every quality can be of juridic relevance within the terms of the canon. As should be obvious, the canon could not be invoked to any effect if the quality claimed to have been directly and principally intended were e.g. that of "dog-lover", "fond of jazz", "keen on flowers", "tidy", "careful driver", "good doubles partner in tennis"...

            Pope John Paul II, in his Address to the Rota in 1993, stated: "an «error in qualitate personae» can invalidate consent only when a quality that is neither frivolous nor commonplace, «directe et principaliter intendatur»..." (AAS 85 (1993), 1260). It follows that the judicial estimation of the significance of a quality is to be made according to objective more than subjective criteria. In other words, for the canon to be applicable, the quality in question must be of concrete and objective importance, at least in common social estimation. A trivial quality, no matter how much the petitioner claims to have attached importance to it in his or her marital decision, cannot support a claim under the canon.

11.       Specific nature of the quality. To prove that the possibility contemplated by the canon was actually fulfilled, the nature of the quality claimed to have been principally intended must be precisely established. If a person claims to have directly and principally intended a generic or ill-defined quality, the law should not and cannot take such a claim as a basis for a judgment concerning the nullity of a marriage.

            Jurisprudence has never allowed that the canon is meant to cover broad and general qualities such as almost everyone would wish to find in a marriage partner. Who does not want their future spouse to be endowed with plenty of "good qualities"? And certainly most marry because they believe they have found someone endowed with many of these. It can probably be shown without difficulty that their marital choice was motivated by this belief also; but that is quite different to proving that in their consent they intended the quality more than the person. Regarding a quality such as being "cheerful", "responsible", "hard-working", "sincere", etc., the claim that a person principally and directly sought some such quality, in a mistaken marital choice of someone believed to possess it, would not give any grounds for a declaration of nullity (prescinding from the possibility of deceit, always within the terms of c. 1098). How could a Tribunal judge that someone was so attracted by a person's apparent cheerfulness, as to want to "marry" that cheerfulness, more than the person? ""Not every error of quality invalidates consent, otherwise one would have to declare null all the marriages of those who have erred about some quality or another... Everyone would like to marry a person who is healthy, good, kind, and with so many other qualities" (Bersini, F.: Il Nuovo Diritto Canonico Matrimoniale, Turin, 1985. p. 102).

12.       Presence or absence of the desired quality. This suggests a further point. If a court cannot be reasonably asked to judge about the presence or absence of imprecise qualities, less still can it be asked to pass a judicial sentence about the adequate or inadequate presence of some quality. Arguments that a quality, although present, was "imperfectly" or "unsatisfactorily" present, cannot carry weight. It is not the "quality of the quality", but the actual presence or absence of the quality, that must be the object of investigation and judgment.

13.       Hence the difficulty of pronouncing a judicial decision under the canon regarding qualities that allow of "more or less", for such qualities can almost always be shown to be lacking in a person "up to a point": proof of an absolute lack would seem to be required. No doubt this is why jurisprudence has accepted as pertinent under the canon qualities such as "virgin", "doctor with a medical degree", "career diplomat", since the presence or absence of such qualities or conditions can be a matter of objective proof. Conversely jurisprudence has been resistent to upholding pleas under c. 1097, § 2, when the qualities invoked are "good", "sympathetic", "reliable", "tactful", "practical", etc. "How much" goodness was directly and principally sought? Few courts of law would feel competent to judge the nature of sympathy, and less still to judge the degree of sympathy that a person expected and received. What degree of unreliability is sufficient in law, to show that the person judged erroneously under the canon? How could a Tribunal judge that the defect of tact or of practical spirit, alleged in the respondent, was of such a degree as not only to disappoint a whim or anticipation of the petitioner, but to violate some legitimate claim with a rightful basis in justice?

14.       Even a quality like "being honest", which is certainly not without importance, offers difficulty for a judicial decision under the canon, precisely because it is so subject to "more or less". If a person claims that what they directly and principally sought in giving married consent was honesty in their partner, would a single act - or several episodic and isolated acts - of post-wedding dishonesty on the part of the other suffice to prove that the marriage was invalidly contracted? If one goes to extreme cases where a person mistakenly marries someone already a professional thief, the presence of c. 1098 should take care of any substantial violation of rights.

15.       On the level of broader consideration, it is certainly not enough for the purpose of the canon to show that the partner chosen did not live up to a person's particular expectations (not an infrequent occurrence in married life), or that certain qualities, however much to be esteemed, which he or she displayed before marriage, seemed to lessen or disappear in subsequent matrimonial life.

16.       Personalism and c. 1097, § 2. The Second Vatican Council characterizes "the intimate union of marriage, as a mutual giving of two persons" (GS 48), and states that its unity "is made clear in the equal personal dignity which must be accorded to husband and wife in mutual and unreserved affection" (ib. 49). It is essential to this personalist concept that each of those marrying choose the other as a person, with full respect for the personal dignity that corresponds to him as such. Christian personalism presupposes that one accepts a concrete person - distinct therefore from all other persons - in one's spouse, and is prepared to show him or her the treatment owed to this personal character. Nothing could be farther from personalism than to depersonalize one's spouse to the level of "an abstraction"; this would be simply to instrumentalize a married partner in the service of one's own whims or interests, with a fundamental violation of his or her personal dignity.

17.       According to some authors, the gradual broadening of the concept and application of the "error of a quality that redounds in an error of person" (cf. c. 1083, § 2, 1° of the 1917 Code of Canon Law) which took place in doctrine and jurisprudence in the years after the Council, corresponds to modern christian personalism, inasmuch as - so they hold - the latter supports a more precise and analytical notion of what constitutes the person, who is thus to be "more completely and integrally considered" (cf. cit. sent. c. Canals, vol. 62, p. 371). One wonders if this alleged link with personalism - whether pre or post Vatican II - is justified, or if the calculated marital choice which c. 1097, § 2 deals with, is not a reflection of a modern individualistic approach rather than of true christian personalism. At the heart of the married personalism present in the 1983 Code, one must certainly place the renewed concept of marital consent: that act of the will by which "a man and a woman mutually give and accept each other..." (c. 1057, § 2). One can therefore only regard as mistaken the thesis (proposed by an Advocate in a recent case before this Apostolic Tribunal) according to which the new norm on error concerning a quality directly and principally intended "is more in keeping with the value and dignity of the human person since, according to the mind and principles of the Second Vatican Couoncil, the evolution of society calls more and more for definite moral, social and individual qualities in those who marry, so that a true "communion of life" can be established between the spouses" (case: PN 16220). A calculated conjugal giving or accepting is certainly possible; but it is not to be regarded as an advance of personalism, as an expression of regard for human dignity, or as a favorable basis for the building of a true marital "communio".

18.       In a 1976 essay ["The Person: subject and Community"], Karol Wojtyla, one of the principal inspirers of the conciliar personalism of Gaudium et Spes, wrote that "the basic dimension of interpersonal community... is both a fact and a demand, [for] such a community has a normative meaning... In interpersonal «I-thou» relationships, the partners should not only unveil themselves before one another in the truth of their personal reality, but they should also accept and affirm one another in that truth. Such acceptance and affirmation is an expression of the moral (ethical) meaning of interpersonal community". Wojtyla goes on to point out that certain human relations show not just simply an interpersonal dimension, expressed in I-thou, but also a social dimension, expressed in We. "By virtue of this relation, the people involved in it, while experiencing their personal subjectivity - the factual multiplicity of human I's - are aware that they form a specific we, and they experience themselves in this new dimension... The best example of this is marriage, in which a clearly delineated "I-thou" relationship, an interpersonal relationship, takes on a social dimension... [the spouses'] new social relationship imposes new duties and demands on the interpersonal «I-thou» relationship" (Wojtyla, K.: Person and Community: Selected Essays, New York, 1993, pp. 244-248).

            Inherent in christian married personalism, then, is a duty to give one's self as spouse, without deception, and a corresponding duty to accept the other as spouse, without reservation (also with regard to his or her qualities). Positive law may have good reasons to retain the grounds of condition (c. 1102), or of error regarding a personal quality (c. 1097, § 2), as autonomous grounds for nullity (even though some hold that any major violation of personal rights - to which the two canon are held to correspond - are now sufficiently covered by the provisions of the newly introduced canon on dolus: c. 1098); but these reasons can be sufficiently found in traditional contractual law sources, without trying to force them into personalistic categories.

            Re deceit. Canon 1098, newly introduced into the 1983 Code, states: "A person contracts invalidly who enters marriage deceived by fraud, perpetrated to obtain consent, concerning some quality of the other party which of its very nature can seriously disturb the partnership of conjugal life".

            One can note the connection as well as some important differences between the hypotheses considered in c. 1097, § 2 and in c. 1098. In both cases, the juridic integrity of the consent of one party to marriage is undermined through an error regarding a quality which he or she judges the other party to possess. However the operative factor due to which the error impairs the integrity of consent, differs from one canon to the other. In c. 1097, § 2, the operative factor is not that the mistaken judgment was induced from outside or deceitfully provoked by another, but simply that it was the direct and principal object of the contractant's will. In c. 1098 on the contrary, what destroys the integrity of consent is the injustice deliberately perpetrated by another, who induces the error so as to bring consent about.

            Canon 1097, § 2 therefore centers attention on the intensity and purpose with which the contractant makes his erroneous judgment, whereas c. 1098 looks rather to the malice of another party which causes the error. Further, in dealing with cases under c. 1097, § 2, jurisprudence has at times given juridic relevance to qualities that are not, as such, connected with married life. The application of c. 1098 is explicitly limited to qualities that "of their nature" tend gravely to disturb conjugal life.

20.       In c. 1097, § 2, it is the subjective will of the contractant that makes the quality the substantial object of choice. Nevertheless the force of this subjective will is not without limit since, as we have seen above, the possibility is excluded that trivial or everyday qualities, however principally intended, be raised by the contractant's subjective will to the level of a substantial object under the canon. A particular difficulty in applying the canon lies precisely in combining subjective and objective factors. In the case of c. 1098, the Legislator has made it clear, through the words "of its very nature", that an objective criterion is to be followed in judging the relevance of a particular quality under the canon.

21.       One should further note that the invalidating effect under c. 1098 does not flow from the negative quality considered in itself, nor even from its gravity, but from the deceit regarding the quality by means of which consent was obtained (cf. sent. of Oct. 25, 1990 of the undersigned: RRD, vol. 82, pp. 723ff). There can be no doubt that deceit concerning some grave personal defect undermines the authenticity of the self-gift proper to marriage (cfr. sent. c. Serrano, Umuahiaen., June 2, 1989, no. 8). The invalidating factor therefore is not the disturbance caused to married life, but the initial deceit about the perturbing defect. The juridic reason is clear: there is no right to an undisturbed married life, but there is a right not to be deceived into marriage by the concealment of some important negative trait of the other. In other words, while no one has a right to find a husband or wife free from defects, everyone has a right to a marital consent given by the other, which represents a sincere and unfeigned gift of that person as he or she actually is (cf. sent. of Nov. 26, 1992 of the undersigned: RRD, vol. 84, p. 585).

22.       Canon 1098 does seem clearly rooted in christian personalism. Without lessening the duty to accept personal responsibility for freely made choices, it is aimed at defending personal freedom from deceitful instrumentalization by others. Again a contrast appears with c. 1097, § 2. "En el error el sujeto hace un juicio falso del objeto, pero es el propio sujeto el autor y responsable de la falta de adecuación entre su idea y la realidad; en el dolo, en cambio, es un tercero [more correctly: "it is the other or a third party"] quien elabora, mediante engaño, una falsa realidad, con el fin de producir en la pars decepta la percepción en apariencia verdadera de un objeto en sí mismo falso" (Comentario Exegético del Código de Derecho Canónico, Universidad de Navarra, Pamplona, 1996: vol. III, p. 1285).

III. The Argument

23.       With the absence of the respondent, the case has to be judged solely on the evidence forthcoming from the petitioner and her witnesss. While allowing that credibility seems good on their side, we must immediately say that the arguments advanced in favor of her pleas are extremely weak. They do not address the main issues that have to be clarified if a plea of nullity under error regarding a personal quality is to be upheld; this is truer still of the grounds of deceit introduced in this instance.

24.       In the first place it should be said that the image of the Petitioner which her advocate tends to present in this instance - an ingenuous person, with practically no social life or experience, who therefore let herself be over-easily led into marrying (Brief, p. 11) - is not fully confirmed by the Acts. The case is that of a woman thirty two years old, who is a teacher and gym instructor. She testifies: "I accepted to marry him because I was very fond of him. We got on really well during the courtship, we had so much in common. I do not think that my decision to marry him was rushed" (88).

25.       The courtship of nine months, spent largely in the petitioner's home and in her family's presence, would seem sufficient to have allowed her and them to get to know the respondent in a substantial way. Most of the evidence is directed towards suggesting that, in regard to various attitudes and qualities, there was a change in how the respondent behaved before and after the marriage. Even if this is accepted as having taken place, it is not sufficient to sustain the petitioner's plea. The petitioner was satisfied with the respondent before the wedding, and dissatisfied at some stage afterwards. What emerges from the evidence is that she sought many general qualities in the petitioner, rather than any specific quality. No proof is offered that in her consent she directly and principally intended all, or one in particular, of these qualities, more than person of the respondent.

26.       In the instruction in first and second instance, the question was not brought up of the quality or qualities which the petitioner would have intended more than the person of the man; the examination centered just on the way in which the prenuptial relationship was carried on, and of what occurred after the wedding. In the present instance, efforts were made to identify in a precise way the quality which the petitioner might have principally sought in the petitioner; but little comes of this. According to her and her family, she sought general qualities in him such as everyone tends to desire in a prospective spouse. Asked, "what quality did she seek", she replies "Among other qualities, I hoped to find a faithful companion" (86/1). Other members of her family enlarge the list of qualities. Her mother: "she expected that John would be an honest, sincere, faithful person, of good character..." (91/1); her father: "a sincere and honest person with character, in short a companion for one's entire life" (93/1); her brother: "a sincere person, of good character, both responsible and faithful..." (95/1). In other words, it appears that the petitioner, not unlike all others who wed, hoped that her spouse would be endowed with those qualities which can make a happy and peaceful married life possible.

27.       While it is clear from the Acts that the petitioner felt that the respondent changed in many ways after the wedding, her evidence is not consistent regarding the way or at least the degree to which the respondent disillusioned her. She states: "The courtship was almost altogether spent in my house. John would come there daily. He was an extremely well bred, intelligent, organized and generous person, in such a way that my mother and everyone at home liked him" (8/5). She claims that there was a change in the respondent after the wedding; but at the same time she admits that the change was neither total nor immediate: "Now he would again become the attentive and affectionate lover, and then pass immediately to be harsh and aggressive... From then on his temperament become more accentuated; or rather, his aggressive behavior has alternating between affection and aggression... There were periods of aggressiveness intermingled with some moments of affection, and above all moments of indifference" (14-15). To go by these words, it is not even possible to say that the man, at least at the beginning of the life together, totally changed his mode of behavior. Besides, the point at issue here is not to ascertain how he was before the wedding and how he behaved afterwards, but whether the petitioner intended some quality rather than the man, or not.

28.       Re deceit. Here we can prescind from the question whether c. 1098 is grounded in natural law or not, since nothing in fact is alleged by the petitioner or her witnesses that offers support to this plea. We would simply note the following.

            The word "deceitfully" appears in the evidence offered in second instance by the petitioner's mother (Summ. 52) and by her father (56). It is also to be found in the evidence of the petitioner herself, although not in a totally clear or coherent way. "I am certain that he committed deceit at least in what regards our commitment of fidelity, in material matters..." (49). But immediately before this she had said that after the collapse of the marriage, she had visited a psychologist and asked him where she had gone wrong in her relationship with the respondents, receiving this answer: "that there was no doubt that it was a matter of someone psychically sick"; a conclusion which she herself came to after attending a course in psychology (ib.). The argument of deceit is not easily harmonized with the thesis of psychic deficiency.

29.       If we examine the supplementary instruction made in this rotal instance, the absence of any basis for deliberate deceit appears more clearly still in the evidence given. On being asked, "How do you explain that you did not realize the true personality of the respondent before marrying him", the petitioner replies: "I cannot explain it. I think he was playing a part during the engagement. What I don't know is whether that role-playing was premeditated and conscious, or whether it enters into the structure of his personality" (89). Asked, "Do you believe that John made conscious and deliberate efforts to hide his true way of being?", she replies: "Even today I still ask myself that question" (89). And to the question, "Do you believe that, if there was deceit on John's part, it was aimed at obtaining your consent?", she again answers: "I cannot say if there was deceit on his part or with what intention" (ib.).

            In her second interrogation in this instance, the petitioner insists again that the man changed his way of being; she adds however, "I cannot state that he 'deliberately' changed his personality... What I say is that there were two different personalities, one before the wedding and another afterwards. But I do not know if the first one was conscious and aimed at obtaining some result" (100-101).

            When the petitioner's mother is asked, "Do you think that John made conscious and deliberate efforts to hide his true nature?", she offers an opinion that does not favor the thesis of deceit: "I cannot affirm it for sure, but I feel that when John met my daughter, perhaps he thought that the marriage would help him to change. However, he did not have the strength to change" (91). Her father is asked, "Was there deliberate deceit on John's part? What would have been his motives?", and replies: "I cannot say if there was deceit on his part or with what intention" (89).

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

            to the first: "IN THE NEGATIVE", that is, the nullity of the marriage has not been proved, in the case before the Court, on the grounds of error on the woman's part regarding a quality of the man directly and principally intended;

            to the second: "IN THE NEGATIVE", that is, the nullity of the marriage has not been proved, in the case before the Court, on the grounds of error deceitfully caused in the petitioner.".

            Given in the Tribunal of the Roman Rota, July 18, 1996.

            Cormac BURKE, Ponens

            Kenneth E. BOCCAFOLA

            Francisco LÓPEZ-ILLANA