Sentence of March 26, 1998 (Pelplin) (c. 1095, 3) [the "good of the spouses"]

I. The Facts


1.         Towards the start of 1977 Gregory and Danuta met and immediately fell in love. After some months they contracted civil marriage. The religious ceremony took place on March 26, 1978. No children issued from their married life, which went well for a year. Then Danita was brought to trial before the civil authorities and given a jail sentence. In April 1979 the spouses separated. After obtaining a civil divorce, Gregory married another woman civilly in 1983.

            By means of a libellus presented to the Tribunal of Pelplin on Nov. 17 1984, Gregory petitioned the declaration of the nullity of his marriage with Danuta. The joinder of the issue was made on Feb. 8, 1986 in terms of "moral impotence (c. 1095, 3° )". The instruction of the case consisted in the interrogation of the parties and six witnesses, along with two expert opinions, one accompanied by a direct clinical examination of the respondent, the other based just on a reading of the Acts. A Negative sentence was handed down on April 3, 1991. Appeal being made to the Metropolitan Tribunal of Danzig, the joinder of the issue took place on Sept. 7, 1995 in terms of the incapacity of the respondent regarding the essential obligations to be assumed. A further instruction consisted in the hearing of two witnesses and a new expert opinion. On Feb. 28, 1996, an Affirmative decision was forthcoming.

            The case was forwarded to this Apostolic Tribunal, where gratuitous legal representation was granted to the petitioner, though no further instruction was requested. Briefs and Animadversions having been produced according to law, we must today reply to the doubt concorded on Feb 7, 1997: "Whether the nullity of this marriage has been established, on the grounds of the incapacity of the respondent to assume the essential obligations of marriage due to causes of a psychic nature".

II. The Law


2.         The second sentence given in the case before us refers to the bonum coniugum as a source of the essential rights-obligations of marriage, for the purposes of c. 1095 (Acts, p. 81), as does the rotal Advocate ex officio for the petitioner, in his Brief (p. 4). The Advocate later argues that there is an incapacity for the bonum coniugum if a "facultas instaurandi minimae verae communionis vitae" was lacking (Restr. p. 9). This then may be an opportune occcasion to engage in further reflections on the very important but not easy question of the juridic nature and implications of the bonum coniugum (cf. sentence before the undersigned Ponens of Nov. 26, 1992: R.R.Dec. vol. 84, pp. 577-587 [cf. English version: Studia canonica 27 (1993), 496-505]).

3.         Canon 1055, § 1 states that marriage is "by its nature ordered to the good of the spouses and to the procreation and education of offspring". It is curious to find that the term "good of the spouses" - bonum coniugum - has practically no precedent in theological or canonical doctrine, to express an end of marriage. Its insertion into the draft of what was to become the present c. 1055 was accepted unanimously and apparently without any hesitation by the Consultors of the Pontifical Commission for revising the Code, in a session of February 1977 (Communicationes, 1997, 123). The 1983 Code is the first magisterial document where the bonum coniugum is used to express one of the ends of marriage. At the same time, its subsequent introduction into the 1994 Catechism of the Catholic Church ("The spouses' union achieves the twofold end of marriage: the good of the spouses themselves, and the transmission of life" (no. 2363; cf. no. 2249) means that it cannot be treated as a merely canonical term, but has passed into general magisterial teaching and become a notion of considerable theological interest.

            The theological analysis of the bonum coniugum will have a broader range than investigation into its juridic scope and consequences. Canon law must be given the credit for the introduction of such an innovative and enriching term (which, as has been rightly observed, "is filled with meaning and is certainly not as simple as some seem to consider it to be": A. Mendonça: "Consensual Incapacity for marriage", The Jurist 54 (1994), p. 520) into the Church's vocabulary; but it is no longer just the patrimony of canonists. So the juridic analysis of the bonum coniugum must work with theological reflection on the subject in mind, so that an appropriate theological analysis underpins the determination of the main questions that canonical science must examine regarding the bonum coniugum: its juridic nature and content, the mode and effects of its exclusion, the essential constitutional rights/obligations to which it gives rise, etc.

4.         The juridic categorization of the bonum coniugum. Given the wholly innovative character of the term, the content of the bonum coniugum, especially its juridic content, is still logically a matter of debate. In his address to the Holy Father on the occasion of the 1998 annual papal audience, Msgr. Mario F. Pompedda, Dean of the Rota, mentioned the "scope and rigorously juridic content of the bonum coniugum" as one of the major interpretative questions that still call for deeper examination (L'Osservatore Romano, Jan. 19, 1998, 2.).

5.         As a totally new concept, therefore, the bonum coniugum offers many challenges to the analyst. However, while an on-going debate is needed regarding what is not clear in the concept, the debate will suffer unnecessarily unless what is clear is accepted as common ground for the discussion. What is clear beyond question is that the bonum coniugum is presented in both the new Code and the 1994 Catechism as one of the two institutional ends of marriage. Analysis of the bonum coniugum sets out therefore with no doubt about its juridic classification, placing it within the category of an end.

            Already before the promulgation of the new Code, the legislative intention regarding the bonum coniugum as an end of marriage had been made explicit in two major respects. First of all, the new term is intended to designate the personal(-ist) end of marriage ). Secondly (a no less important clarification), its description as a personalist end is in no way intended to identify it with the subjective end or ends that one or both parties may have in marrying. In its final 1981 sessions, answering some commentators who had equated the bonum coniugum with the subjective ends of those marrying, the Pontifical Commission specifically stated: "The expression ad bonum coniugum should remain, because the ordination of marriage to the good of the spouses is truly an essential element of the matrimonial alliance, and in no way a subjective end of the person marrying" (Communicationes, 1983, 221). So the term is to be understood in an objective, not a subjective, sense; i.e. in the sense that pertains to the intrinsic, institutional ends of marriage as ordained by its Creator (there is point in discussing whether the bonum coniugum is to be classified as a personalist end or as an institutional end? It is both; nor can this be regarded as a surprising conclusion: cf. C. Burke: "I Fini del Matrimonio: visione istituzionale o personalistica?": Annales Theologici 6 (1992), 237-239 [English: Communio, 19 (1992), 287]).

6.         End and essence. Any juridic analysis of the bonum coniugum needs to set out from this evident fact - that it is an end of marriage. This paves the way for a next clarification. If it is an end, it cannot be an essential property or element of marriage. The logic of this conclusion becomes evident once one recalls some basic notions regarding essence ("essential" means what necessarily pertains to the essence), properties and ends.

            The essence of any reality is its irreducible nucleus (stripped of all accidental aspects) without which the reality cannot be. What is essential to any thing must be present, at least in its constitutional moment. Nothing can come into existence without the essential properties or elements which fundamentally (constitutionally) distinguish its essence.

            The relationship between essence and end thus becomes more evident. As one of the best-know modern canonical theorists writes in relation to marriage: "the essence is something different from the end, and so they may never be confused, nor can one fall into the error of understanding the end as essential, in the sense of being part of the essence. It is necessary therefore to carefully avoid any confusion between the essence of marriage and its ends; this is an elementary precaution which some authors nevertheless have not always kept in mind. By dint of speaking without due precision of essential ends (the expression is correct if one means by it that the ordination to them is essential, but absolutely inappropriate if it is used to suggest that the end is constituent of the essence), it is not infrequent that, at least in certain contexts, one falls into confusion between end and essence, with all the inaccuracies and errors that this leads to" (J. Hervada: Vetera et Nova, Pamplona, 1991, I, 357.).

            It follows that while each reality is ordered to an end, it does not depend for its existence on the end. This is why the end is said to be extrinsic to the essence, while the essential properties are intrinsic. At the same time, the very fact that a reality is ordered to its ends means that although the ends as such do not enter the essence, the essence cannot be without an "ordination to" its ends. "Bonum prolis" implies ordination to procreation; so one sees how the property ("bonum prolis") relates to the end (procreation), although it is at the same time in a quite distinct category. If both the relationships and the distinctions here are not clearly noted, analysis can easily become confused. Hence for instance the questionable suggestion that the bonum coniugum can be considered "in se", as an end of marriage, and "in suo principio", as an essential element: cf. A. Dewhirst: "Consortium Vitae, Bonum Coniugum and their relation to simulation", The Jurist 55 (1995), 804); P. Pellegrino: "Il bonum coniugum: essenza e fine del matrimonio canonico", Il Diritto Ecclesiastico, 1996, 829).

7.         The distinctions here are perhaps fine, but they are also all-important. If they are not grasped, a proper juridic understanding of the bonum coniugum becomes impossible. We find them present in one of the first post-code analytical references to the bonum coniugum. In 1984 the well-known rotal judge J.M. Pinto wrote: "Even if the end of a created thing is outside its essence, the ordination to offspring is essential to marriage, but [and?] in this, the ordination to the good of the spouses is also included" ("si finis rei creatae est extra essentiam, ordinatio ad prolem est matrimonio essentialis, sed in hac ordinatio ad bonum coniugum includitur": "Incapacitas assumendi matrimonii onera": Dilexit Iustitiam, Rome, 1984, 23). Despite the fact that Pinto seems to see the end of the bonum coniugum subordinated to that of procreation (I see them as equal and interdependent), one notes how this early appraisal clearly distinguishes between the end - which falls outside the essence - and the ordination to the end, which is essential).

            This is why an end can not be an essential property or essential element. Each being or reality must have its essential properties within it. Without its essential elements or properties it cannot exist. Each reality also has an essential ordering to an end. The properties necessarily enter the essence; so too does the ordination to the end. But the actual end itself remains extrinsic to the essence, for the end may fail ever to be achieved, without the essence failing in its existence.

8.         Essentiale aliquod elementum. Canon 1101 § 2 states: "if either or both parties through a positive act of the will should exclude marriage itself or any essential element of marriage or an essential property, such party contracts invalidly". Canonists were well used to the idea of "essential properties", which are mentioned in our present c. 1056 in identical words as in c. 1013 of the 1917 Code ("the essential properties of marriage are unity and indissolubility"). But "essential element" is a new term whose precise meaning has to be clarified. Bearing in mind that in order to be essential, an element (just as a property) cannot be some minor or accidental characteristic, what exactly does the term "essentiale aliquod elementum" cover? What is or are the essential element(s) of marriage? Obviously the term is intended to cover something distinct from the "essential properties" (mentioned separately in the canon). In what way is it distinct from them? The clarification of these questions is important not so much to determine the nature of the bonum coniugum, as to judge cases of the exclusion of the natural ordering of marriage to the good of the spouses (for the subject matter of c. 1101 § 2 is simulation through a positive act of exclusion of something essential to valid marital consent).

9.         To begin with, one needs to take full stock of the very newness of the expression "essentiale aliquod elementum" of c. 1101 § 2. It is not to be found anywhere in the 1917 Code; and we are certainly not yet in a position where its canonical meaning can be considered fully established. It surfaced officially for the first time in 1971 when the Consultors of the Commission charged with revising the Code accepted a provisional draft in which, among the elements whose exclusion would invalidate consent, a "ius ad vitae communionem" was placed alongside the "ius ad coniugalem actum", which had already been carried over from c. 1086 § 2 of the 1917 Code (Communicationes, 1971, 75.). After long debates about the "ius ad vitae communionem" formula, the Commission in 1977 voted to modify it to a "ius ad ea quae vitae communionem essentialiter constituunt" (ib., 1977, 375.). Finally in 1981 the Consultors decided to omit this latter expression too, as well as the "ius ad coniugalem actum", and to speak simply of the exclusion of "some essential element". The Acts make it clear that this new expression was intended to cover both the "right to the conjugal act" (whose juridic content was solidly established) and any new or autonomous substantial right that might eventually be agreed in doctrine and jurisprudence as deriving from the ideas behind the discarded phrase about the "communio vitae" ("Ita auferuntur difficultates circa clausulum «aut ius ad ea quae vitae communionem essentialiter constituunt» et, etsi generico modo, relatio exprimitur necessaria ad ea quae essentialia matrimonio sunt, quae quidem a doctrina et iurisprudentia determinanda sunt, habita ratione definitionis can. 1008 § 1 [= c. 1055 § 1 Codicis a. 1983] necnon totius legislationis et doctrinae, sive iuridicae sive theologicae" Communicationes, 1983, 233-234).

            Jurisprudence and doctrine are unanimous that the phrase "essentiale aliquod elementum" covers the old "omne ius ad coniugalem actum" (or the "bonum prolis" to express the matter in augustinian terms), and rotal decisions regularly deal with exclusion of the "bonum prolis" within this "essentiale aliquod elementum" of c. 1101 § 2 (cf. c. Pompedda, June 8, 1987, vol. 79, p. 386; c. Boccafola, Jan. 16, 1989: vol. 81, p. 10; c. Funghini, Nov. 8, 1989: vol. 81, p. 644; c. Colagiovanni, Nov. 20, 1990: vol. 82, p. 806; c. Bruno, Feb. 1, 1991: vol. 83, p. 67; c. Civili, Nov. 25, 1992: vol. 84, p. 570; c. Huber, June 16, 1994: vol. 86, p. 327; c. de Lanversin, Feb. 9, 1996, n. 11; c. Stankiewicz, Feb. 22, 1996, n. 6; c. Caberletti, Oct. 23, 1997, n. 3; c. Alwan, July 7, 1998, n. 13; c. Faltin, Nov. 17, 1998, n. 7; cf. P.A. Bonnet: "L'"ordinatio ad bonum prolis" quale causa di nullità matrimoniale": Il Diritto Ecclesiastico, 1984, 330). As yet however the question of what other aspects(s) of marriage the expression covers, would not seem to have been resolved with adequate precision (The 1985 Commentary on the Code, of the Canon Law Society of America, says that "foremost among the essential elements" is "ordination to the good of children" (p. 785); but it does not list any other elements).

10.       The "bonum coniugum": an essential element of marriage? Can the bonum coniugum be classified as an "essential element" of marriage under the terms of c. 1101 § 2? The importance of the question means that it cannot be answered lightly; and an adequate answer must bear in mind the relationships of essence, property (element) and end outlined above. We repeat that all the logic of philosophical and juridic discourse, working from these fine but clear distinctions, makes it evident that since the bonum coniugum is an end of marriage, it is not and cannot be one of its essential elements or properties. Only if this is appreciated and accepted as a fundamental guiding principle for discussion, can one develop a coherent analysis of the bonum coniugum. Nevertheless, suggestions are still made to the effect not only that the bonum coniugum is an essential element of marriage rather than an end but, even more peculiarly, that it is indifferently an essential element and an end at one and the same time. While these suggestions do not stand up to examination, they are to be found, and constitute a source of considerable confusion.

            But, it may be objected, in the process of revising the Code, did the Pontifical Commission itself not describe the bonum coniugum as an "essential element"? This impression seems widespread enough (cf. A. Mendonça, op. cit, 521; E. G. Pfnausch: "The good of the spouses in rotal jurisprudence: new horizons": The Jurist 56 (1996), 546), but is groundless. It can only derive from a less than careful reading of a very precise statement of the Commission whose precision illustrates the fine, but fundamental, distinctions we have sought to draw attention to. Let us recall the words of the Commission: "The expression "ad bonum coniugum" should remain, because the ordination of marriage to the good of the spouses is truly an essential element of the matrimonial alliance" (cf. supra). So what the Commission asserted to be an essential element is not the bonum coniugum, but the ORDINATION TO it. These distinctions are quite clear; and one cannot proceed profitably unless they are adequately grasped. Just as one cannot properly analyze questions relating to procreation, the other end of marriage, unless one distinguishes between ordination to procreation (the "bonum prolis"; an undisputed essential element of marriage) and actual procreation (an end of marriage that may be achieved or not, but without which marriage can subsist).

11.       Is the "bonum coniugum" a fourth "bonum" in the augustinian sense? There is a secondary consideration regarding the adequate juridic categorization of the bonum coniugum; however secondary, it at times becomes a source of confusion. This is the relationship of the bonum coniugum with the three augustinian "bona". Leaving some positive aspects of this relationship for later consideration, one should here emphasize the importance, for the purpose of analysis, of realizing that the bonum coniugum is not a "fourth bonum", to be added to the augustinian triad ("bonum fidei"; "bonum prolis"; "bonum sacramenti").

            Already in 1985, Francesco Bersini, one of the first well-known Italian canonists to comment the matrimonial norms of the new Code, unhesitatingly affirmed that the bonum coniugum "has nothing to do with the three augustinian bona" (Il Nuovo Diritto Canonico Matrimoniale, Turin, 1985, 10.). U. Navarrete similarly insists on the radical difference between the bonum coniugum and the augustinian "bona": "the term «bonum» of c. 1055 § 1 has a completely generic sense and in no way the specific meaning which the word has in the augustinian trilogy" ("I beni del matrimonio: elementi e proprietà essenziale", in La nuova legislazione matrimoniale canonica, 1986, p. 97).

            It is to remain on the surface of the matter to let a linguistic similarity obscure fundamental differences of category and meaning. In the augustinian view, the three "bona" refer to "goods" or values of the married state: they are positive features of matrimony that show its worth and dignity. Marriage is good because it is characterized by faithfulness, permanence and fruitfulness. Each "bonum" is predicated of or attributed to marriage. The readiness to have children by one's spouse is a "bonum matrimonii", and so is the exclusiveness or permanence of the bond constituted with him or her. It is evident that Augustine is speaking of the values or essential properties of marriage, not of its ends or finalities.

            This can perhaps be more clearly grasped through a schematic presentation:

            - bonum fidei or exclusive fidelity, is a "bonum" or attribute of matrimony;

            - bonum prolis or "openness to having children" (what St. Thomas calls, "proles in suis principiis", which could also be termed procreativity), is a "bonum" or attribute of matrimony;

            - bonum sacramenti or indissolubility. is similarly a "bonum" or attribute of matrimony.

            As is immediately evident, we cannot proceed to add the bonum coniugum to this list. It would make no sense to say that "coniuges" - the spouses - are a "bonum" or attribute of matrimony. The fact is that the term bonum coniugum does not express a value, property or attribute of marriage, in any sense parallel to that of the augustinian "goods". The "bonum" of this new term is referred not to marriage (as if it were a value that makes marriage good), but to the spouses (as involving something that is good for them). It denotes not a property of marriage (a "bonum matrimonii"), but something - the "good" or welfare of the spouses - which should result from marriage. The augustinian "bona" are fundamental qualities or properties that qualify and describe aspects of the essence of marriage, the bonum coniugum is an end of marriage, an effect that marriage should produce on the persons of the spouses themselves. It is predicated not of marriage (a "bonum coniugii"), but of the spouses (bonum coniugum), as something that marriage ought to cause or lead to (cfr. C. Burke: L'Oggetto del Consenso Matrimoniale: un'analisi personalistica, Giappichelli, Turin, 1997, pp. 91-92.). If carelessness in thinking is allowed to create confusion here, any adequate analysis of the meaning and force of the new term is made unnecessarily difficult, and can become in the end impossible.

12.       None of this means that there is not an interrelation between the augustinian "bona" and the bonum coniugum. On the contrary, it is only logical to find the different aspects of marriage - properties, elements, ends - intimately connected. The three augustinian "bona" on the one hand, and the bonum coniugum on the other, while clearly to be distinguished (as end compared to properties), are nevertheless fundamentally interrelated - so much so that there is a good case for considering that the three traditional "bona", in their proper force and effect, represent the most important factor tending to the achievement of the bonum coniugum.

13.       The essential content of the bonum coniugum. One thing is the juridic classification of the bonum coniugum, another is what the concept itself actually denotes, and in particular of what essential elements it is made up. Here we are once more in an ongoing process of reflection aimed at clarification. A study of the literature suggests again that the required analysis is still in its beginnings. There are many ideas, as is natural at the start of any investigation into what is so new; but not all of them appear to build on a sufficiently solid basis. Juridic science can be over-rigid; but it is not true to its own nature unless it seeks that minimum of clarity and precision which must characterize any workable legal formulation that is going to be of practical use.

14.       The abruptness with which the term bonum coniugum made its appearance in no way takes from the fact that it was a major end-result of the post-conciliar efforts, especially in the 1970s, to give juridic relevance to what were considered the more personal aspects of marriage. We have touched on this earlier when speaking of the history of the "essentiale aliquod elementum". Here let us return for a moment to the complex and multi-facetted debates of twenty five years ago. In the name of a more personalistic approach to marriage, new concepts and new rights were suggested for juridic recognition and configuration. Subjects as distinct as "ius ad amorem" (Paul VI's 1976 address to the Rota seemed to exclude "love" from the category of an essential element of marriage (AAS 68 [1976] 206); see nevertheless, C. Burke: "El amor conyugal: ¿nuevas perspectivas jurídicas?": Revista Española de Derecho Canónico, 53 (1996) 695-704) and "existential consummation" were among them. But the most debated topic was undoubtedly that of the "communio vitae" (or "communitas vitae") in which expression many saw a possible outlet for a properly juridic rendering of the vivid and appealing Vatican II description of marriage as "intima communitas vitae et amoris coniugalis" - "the intimate community of conjugal life and love" (Gaudium et Spes 48).

15.       The "bonum coniugum" and the "communio vitae". The preparatory Commission for the new Code pondered these subjects in depth, as we mentioned earlier. The most important proposal was to include the "communio vitae" in some way among those essential elements of marriage whose exclusion invalidates consent. As noted, the Commission in 1977, rejecting the suggestion to give status to a simple "ius ad communionem vitae", did for a time accept a "ius ad ea quae vitae communionem essentialiter constituunt" among those elements (Communicationes 1977, 375); but this phrase also was eventually omitted from the canon, as being too indeterminate (ib. 1983, 233-234).

            No real progress has marked subsequent attempts to extract some concrete and autonomous (i.e. not otherwise derived) right or obligation from the "communio vitae". Jurisprudence seems to be tending to the conclusion that it may not be possible to translate and conform a "right to the conjugal communion of life" according to valid juridical parameters. It is true that doctrine (more than jurisprudence) has not altogether ceased to speak in a general way of the "communio vitae" as a separate source of rights. This however is to ignore the substantial difficulty already pointed out in 1985 by M.F. Pompedda, who wrote that consideration of the right to the communion of life, in both doctrine and jurisprudence, "still seems very far from having attained any evident juridical formulation" ("Incapacità di natura psichica", in AA.VV. Matrimonio Canonico fra Tradizione e Rinnovamento, Bologna, 1985, 146.). Not long after, in a rotal sentence, the same author reiterated: "we readily acknowledge that a clear notion of this communion of life in its substance has not yet been provided" (April 11, 1988: R.R.Dec., vol. 80, 200). Ten years further on the same seems to hold good. The "communio vitae" signifies the "communion of conjugal life", which in turn is identified with marriage. In other words, a "right to the communion of life" simply means a "right to marriage". Similarly, "those things which essentially make up the communion of life" means the "the essentials" of marriage itself. The use of synonymous terms may facilitate literary elegance, but not juridic analysis.

16.       So after prolonged consideration in the process for drafting the new Code, the "communio vitae" (or the right to it) was not granted any juridic status, while the bonum coniugum was found acceptable and canonized. But far more important than the different fortunes the two terms underwent, is the fact that they refer to different juridic categories. The "communio vitae" was proposed and eventually excluded as an essential element of marriage (under c. 1101), the bonum coniugum was proposed and finally accepted as an institutional-personalist end of marriage (c. 1055). The sources therefore reveal that the 1970 movement to have some new personalist marital rights defined - in terms of the "communio vitae" - led not to the definition of any such right, but to a new formulation of an end. The "communio vitae" has acquired no juridic status or substance; it remains a non- or semi-canonical expression. The bonum coniugum however is a fully canonical term.

17.       These appear as leading points to bear in mind in investigation, if one wishes to achieve a proper analysis of the bonum coniugum. To continue to treat the bonum coniugum as if it were synonymous with the "communio vitae", suggests that the fundamental question of its specific nature or essence has been too quickly passed over. Insofar as this occurs, it seems to confirm the view that the juridic analysis of the bonum coniugum has no more than begun. Among other principal reasons calling for more thorough reflection is the fact that only when the nature of the bonum coniugum is solidly established can one reasonably pass on to a serious examination of the substantial obligations which may flow from it.

18.       In the 1970s, with a major canonical debate centered on whether a "right to the communion of life" or a "right to those elements which are essential to the communion of life", could or should be given juridic status in the revised legislation on marriage, it was natural to find writers engaged in thoughtful attempts to list those qualities or elements which might in fact be considered essential to such a communion. A 1972 essay of Germain Lesage is a well-known effort in this sense. Lesage listed "concrete elements which are essential to a consortium vitae coniugalis", among them, "respective responsibility of both husband and wife in establishing conjugal friendship", "maturity of personal conduct throughout the ordinary events of daily life", "self-control or temperance necessary for any reasonable and 'human' form of conduct", "stability of conduct and capability of adapting to circumstances", "gentleness and kindness of character and manners in mutual relationships", "mutual communication or consultation on important aspects of conjugal of family life", "objectivity and realism in evaluating the events and happenings that are part of conjugal or family life", "lucidity in the choice or determination of goals or means to be sought for jointly" ("The consortium vitae coniugalis", Studia canonica vol. 6 (1972), 103-104).

            The list is admirable in putting together many dispositions and details of behavior between husband and wife that give practical body to the ideal of marriage expressed in Gaudium et Spes; nor would anyone question its value for moral or pastoral guidance. It is different however to suggest (as Lesage does: 104) that a person marrying has a constitutional juridic right (and not just a moral expectation) to find these qualities in his or her partner, and that whoever lacks the aptitude to live any of them is constitutionally incapable of giving valid consent. In the well-known rotal case coram Raad of April 14, 1975 (one of the official "Fontes" for c. 1095, 3° ), Lesage's list was submitted to a lengthy judicial appraisal, and the conclusion reached that it was juridically untenable to hold these (or other such) qualities to be essential for valid matrimonial consent (R.R.Dec., vol. 67, 244-245).

19.       Lawrence Wrenn applied a good measure of Lesage's approach in his 1986 essay, "Refining the Essence of Marriage" (The Jurist, 46 (1986):2, 532-551; the same essay is included in the more recent editions of Wrenn's Annulments: pp. 145-161). Examining "six of the more obvious qualities that might constitute the essence of the bonum coniugum... partnership, benevolence, companionship, friendship, caring, and finally love", Wrenn reaches the conclusion that "the essence of the bonum coniugum consists in the ius ad amorem" (The Jurist, 537-545; Annulments, 149-156.). He seeks to clarify further this thesis in his final summary: "Our position does not claim that love is essential to marriage. Rather it claims first that the right to the bonum coniugum is part of the essential object of marital consent, and second that the bonum coniugum consists not in partnership, companionship, caring, etc., but rather in the love of the parties for each other. Once, however, the parties consent to marry and pledge to love each other, the marriage is then valid; it remains valid, of course, even if their commitment to love later disappears" (547).

            From the juridic standpoint, several possible weaknesses in these views could be noted. First, they assume that post-conciliar reflections on qualities which may be reasonably considered to distinguish the "communio vitae", or indeed the "communitas vitae et amoris" of Gaudium et Spes, can be validly carried over to an analysis of the bonum coniugum. Second, they take it as axiomatic that the bonum coniugum is not only identifiable with a highly integrated and happy marriage, but essentially depends on the possession of personal qualities that make for this married integration and happiness. Third, they tend to suggest that a strictly juridic right exists to find such qualities in one's spouse. A fourth point could be the assumption, if present, that these qualities hold the status of essential rights and obligations for the purposes of c. 1095, 2° and 3° .

20.       These approaches show the common defect of taking parameters used (adequately or not) to investigate the essence of marriage considered as "communio vitae", and applying them to the juridic analysis of the end of marriage which is the bonum coniugum. In a proper juridical sense, the "communio vitae" is practically synonymous with the "consortium totius vitae" or "partnership of the whole of life" (c. 1055). As applied to marriage, both expressions are obviously to be qualified by the adjective "conjugal" [i.e. "conjugal partnership", "conjugal communion"] for there are many partnerships or communions which are not conjugal. In such an objective acceptance, either expression becomes synonymous with marriage itself.

            One can therefore question whether to take the "communio vitae" as a main key to the nature of the bonum coniugum, is truly a progressive or promising line of research. No doubt there is an historical connection between the two terms, inasmuch as the debate about one issued in the definition of the other. In this sense - that the failure of the "communio vitae" undoubtedly helped in the triumph of the bonum coniugum - they can certainly be related. However, it may be an obstacle rather than an aid to understanding the nature of the bonum coniugum, if one pushes the connection beyond that, and even more so if one tends to see the two terms as interchangeable in meaning. Essence and end must be clearly distinguished.

21.       Guidelines to the nature of the bonum coniugum. One can reasonably suggest some main areas of reference for pursuing an analysis of the bonum coniugum. First, the obvious scriptural key offered by the opening chapters of Genesis. Then the growing insistence in church magisterium that the perfectioning of the spouses is to be placed among the main aims of marriage. Third, the logical tie-in with what an analysis of the "sese mutuo tradunt et accipiunt" of c. 1057 § 2 offers. Nor can one overlook the fact easily verified in pastoral experience, i.e. that many of the most "successful" marriages (i.e. those that have best achieved their end) are unions where the spouses have responded generously to the demands of mutual conjugal giving/accepting, so maturing as persons.

22.       The scriptural key is fundamental. In narrating the institution of the sexes, Genesis offers us two accounts - which are obviously meant to be complementary, not in opposition. One is clearly procreational ("God created man in his own image, in the image of God he created him; male and female he created them. And God blessed them, and God said to them, 'Be fruitful and multiply, and fill the earth'" (Gn 1:27-28). The other is no less clearly personalist: "the Lord God said, 'It is not good [non est bonum] that man should be alone: I will make him a helper fit for him'... [and God made woman] Then the man said, 'This at last is bone of my bones and flesh of my flesh'... Therefore a man leaves his father and his mother and cleaves to his wife, and they become one flesh" (Gn 2:18-24). From this it is clear that both the procreational and the personalist narrations are institutional.

            The second account underlines that God was seeking a "good", a "bonum", for man and for woman as a result of the institution of marriage. It is God's purpose here which necessarily discloses the essential nature of this "bonum". As in all of God's doings, his design is to prepare - to mature - us for eternal life. What matures the spouses most within marriage is precisely their faithful mutual commitment, their loving each other in good times and in bad. Very often it is the "bad" or harder times of serious illness, financial hardship, etc., or the simple prolonged experience of each other's defects, which most mature the spouses.

            As regards the traditional mutuum adiutorium - which a correct but incomplete exegesis drew from the same biblical source (Gn 2:18) - modern magisterium tends to see it no longer just in terms of support in the cares and difficulties of temporal life, but particularly in the sense of mutual help to grow in the perfection of grace and of love for God and for others. Some writers consider the mutuum adiutorium to have been "absorbed" into the bonum coniugum (cf. F. Bersini: op. cit., p. 18; David E. Fellhauser: "The consortium omnis vitae as a Juridical Element of Marriage", Studia Canonica 13 (1979), p. 87); it might be preferable to say that the biblical source reveals it as one of the elements meant to integrate the bonum coniugum. We say "one" of the elements, because God's will - also with its paternal demands - is without the primordial factor shaping the life-long history of each marriage, with its particular events and unique vicissitudes through which the good of the spouses is to be achieved.

23.       Among the "sources" of canon 1055 (cf. Codex Iuris Canonici (fontium annotatione auctus), Lib. Ed. Vaticana, 1989, p. 292) we find Pius XI's Encyclical Casti connubii which mentions as the "primary purpose" of married love: "that man and wife help each other day by day in forming and perfecting themselves in the interior life, so that through their partnership in life they may advance ever more and more in virtue, and above all that they may grow in true love towards God and their neighbor" (AAS 22 (1930) 548). Other sources include the Address of Pius XII of 1951 which speaks of the "personal perfecting of the spouses" as a secondary end of marriage (AAS 1951 848-849), Lumen Gentium: "Christian spouses help one another to attain holiness in their married life and in the accepting and rearing of their children" (no. 11), Apostolicam Actuositatem: "Christian spouses are, for each other... cooperators of grace and witnesses of the faith" (no. 11) and Gaudium et Spes which teaches that "as spouses fulfill their conjugal and family obligations... they increasingly advance towards their own perfection, as well as towards their mutual sanctification" (no. 48). It is interesting to find these exact concepts expressed in a formula considered by the Pontifical Commission (in the very same session which accepted the term bonum coniugum), as expressing the purpose of the union between christian spouses: "so that they are of help to each other in their own perfection and sanctification and in the begetting and education of children" (Communicationes, 1977, 121).

24.       Without accepting that marriage is a challenge to the spouses to grow as persons, one cannot grasp the bonum coniugum: "In order to bring about the bonum coniugum it is essential that the spouses... help each other grow" (Lawrence Wrenn, op. cit. 542). In other words, the bonum coniugum is something to be brought about. It is the final term of a continuous process, as in fact befits an end of marriage; it is an object to be achieved by personal growing. Inasmuch, then, as it proposes a goal and an ideal to married people, it certainly cannot be achieved without effort. Yet, effort and all, it presents itself as a possible ideal - which is arguably closer to the real potentialities of married couples than the smooth, effortless harmony that Lesage's list seems to propose.

25.       If one takes the bonum coniugum as consisting - according to God's plan in instituting marriage - in the maturing of the spouses as persons through the generous dedication that married love calls for, then the connection becomes more evident with the other notable personalistic phrase introduced by the Code in c. 1057 § 2: the spouses "mutually give and accept each other in order to establish a marriage". True conjugal love places a personalist accent not only on the sincere "giving of oneself", but on the no less sincere "accepting of the other": accepting him or her as he or she is. True married commitment - "for better or for worse"; "till death do us part" - is always the pledge of two defective people to love each other as they are, defects and all, and to stick to the task. A continued response in conformity with that original commitment made at consent, works powerfully for achieving the good of the spouses.

            "It is through dedication, effort and sacrifice, especially when made for the sake of others, that people grow and mature most; that way each one comes out of himself or herself and rises above self. Loyalty to the commitment of married life - to be mutually faithful, to persevere in this fidelity until death, and to have and rear children - contributes more than anything else to the true good of the spouses, so powerfully realized in facing up to this freely accepted commitment and duty: a duty, as John Paul II describes it, "of a conscious effort on the part of the spouses to overcome, even at the cost of sacrifices and renunciations, the obstacles that hinder the fulfillment of their marriage" (Address to the Roman Rota, Feb. 5, 1987: AAS 79 (1987) 1456)" (decision coram the undersigned Ponens, Nov. 26, 1992: vol. 84, p. 582).

26.       Exclusion of the bonum coniugum. Jurisprudence has consistently held that positive exclusion of the end of marriage which is procreation invalidates marital consent. Such cases have been regularly handled as exclusion of the "bonum prolis" (which is without question an "essentiale matrimonii elementum" under c. 1101 § 2). There can be no doubt that the exclusion of the bonum coniugum - the other end of marriage - similarly invalidates. However once we raise the questions of what exactly is involved in practice in this latter exclusion, as well as how such cases are best handled in tribunal work, we once more find ourselves in an area of considerable opinion and debate.

            In a 1989 article the undersigned wrote: "The question of the exclusion of the bonum coniugum is obviously of the greatest importance... It is clear enough that the bonum coniugum is frustrated by the person who excludes indissolubility or fidelity or offspring; the marriage in such cases is null, however, in virtue of the exclusion of the traditional "bona" rather than of the bonum coniugum: the exclusion of the end - the bonum coniugum - being absorbed into the exclusion of the essential property" ("The Bonum Coniugum and the Bonum Prolis; Ends or Properties of Marriage?": The Jurist 49 (1989), 708; cfr. "Il «Bonum Coniugum» e il «Bonum Prolis»: fini o proprietà del matrimonio?": Apollinaris LXII (1990), p. 564). What was proposed here is not (as some suggest) that the bonum coniugum has no entity beyond the three augustinian "bona", but rather that while an exclusion of one of these "bona" evidently implies the negation of the bonum coniugum, principles of good procedural economy may recommend that such cases be handled as cases of partial simulation in traditional terms; this is the practice observed by rotal jurisprudence (unless we are mistaken, not a single rotal case since the 1983 Code has been judged on the grounds of the exclusion of the bonum coniugum).

            The same article continued: "it seems evident that the bonum coniugum would be excluded by the person who marries with the intention of perverting his or her partner: getting him or her to apostatize from the faith, to take up an immoral life, etc. It would no doubt also be held excluded if a person intended to deprive the other party of other aspects of fundamental human dignity, such as his or her physical or moral freedom. And further instances can probably be adduced..." (708-709; cfr. Apollinaris, loc. cit. 564-565). So, while exclusion of the bonum coniugum of course invalidates matrimonial consent, the opinion of the undersigned simply does not favor pressing it forward as grounds in a case which is almost certainly going to be better handled under deceit, or under partial or total simulation in their traditional connotation. There is a lot of common sense in what Paolo Bianchi writes: "The hypothesis of a positive exclusion of the bonum coniugum would appear as a rare likelihood to be considered almost on the limit of the absurd (at least from the psychological viewpoint), unless it is configured as the exclusion of marriage itself or of its essence" (Incapacitas Assumendi Obligationes Essentiales Matrimonii: analisi della giurisprudenza rotale, Glossa, 1992, 84.).

27.       While the Code relates motives of invalidating simulation to the exclusion of an essential property or an essential element (c. 1101, § 2), jurisprudence has generally preferred to judge such cases according to the framework of the augustinian "bona". To avoid the possible confusion that this might provoke, it is important to be very precise in terminology. So, for instance, it is correct to say that valid consent requires the granting of a right to the "bonum prolis"; a right in other words to that ordination to procreation of the conjugal commitment, which consists in readiness to share one's procreative power and to have children. But it is quite incorrect to say that through consent one gives or acquire a "ius ad procreationem" or a "ius ad prolem", a "right to a child". Similarly, while it is correct to maintain that valid marital consent must include an "ordination to the good of the spouses", it does not seem that one can postulate any ius ad bonum coniugum.

            Even rotal jurisprudence has occasionally lapsed into a careless use of "ius ad prolem", when what is meant is a right to the "bonum prolis" (cfr. vol. 38, p. 103; vol. 41, p. 140; vol. 49, p. 190; vol. 56, p. 494; vol. 65, p. 242; vol. 66, p. 535; vol. 79, p. 62; vol. 81, p. 11; vol. 82, p. 112; vol. 82, p. 788). In the past this was perhaps just an unimportant imprecision; nowadays however the distinction involved has ceased to be immaterial. The whole issue of a "right to a child" is at the heart of in vitro fertilization questions, etc. (cfr. Donum Vitae, 1987 Instruction of the Congregation for the Doctrine of the Faith, II, 8; Catechism of the Catholic Church, no. 2378).

28.       In pursuing these considerations an important point not to be overlooked is that, in relation to the end of marriage which is procreation, we know precisely what is meant by its exclusion or by its achievement or its non-achievement (also when this latter is due to incapacity to achieve the end, i.e. in the case of sterility); but that we are in a very different position regarding the other end - the bonum coniugum.

            When is "the good of the spouses" excluded from consent? When is it actually or definitively not achieved in a particular marriage? What constitutes an incapacity (and not just a difficulty) to realize the bonum coniugum? If such an incapacity can be proven, what juridic effect does it have? These are hard questions (immeasurably more so than in the matter of procreation); and it would be unrealistic to expect unanimity in the answers offered. But in any case they remain the fundamental questions for jurisprudence. Useful answers can scarcely be given until theological and canonical analyses reach a fairly general consensus about the fundamental nature of the bonum coniugum. We do not yet seem close to this.

29.       Capacity for the bonum coniugum. While it is certain that the exclusion of one of the ends of marriage - whether bonum coniugum or procreation - invalidates consent, it in no way follows that a capacity for achieving an end is a necessary constitutive element of valid consent; i.e., that a person incapable of achieving an end gives consent invalidly. In fact the contrary is firmly established in jurisprudence.

            Church law, while quite clear that the validity of conjugal consent is vitiated if a person does not accept marriage in its essential elements or properties (including "ordination to" its ends), has been equally clear that consent is not invalidated by a simple incapacity to achieve the end of marriage. Marriage in other words can exist without its end(s) being achieved - or even being possible to achieve.

30.       Valid consent requires the capacity to share sexual intimacy through normal intercourse (the "bonum prolis", an essential element or property of marriage); but not the capacity of achieving actual procreation (an end of marriage). This was so under the old Code, and holds good under the new. A person is capable of valid consent and a valid marriage even if he or she lacks the effective capacity to procreate. So c. 1084 § 3 explicitly states that "sterility neither prohibits nor invalidates marriage". The actual non-achievement of the end to which the "bonum prolis" is ordered (that is, effective procreation) makes marriage harder for the normal couple, but does not affect the validity of their union: a sterile marriage is valid.

31.       The logic of the relation between essence and ends suggests an initial presumption - not easily to be passed over - that the same principle holds good for the other institutional end of marriage: i.e. that the non-achievement of the bonum coniugum (or an alleged incapacity to achieve it) gives no grounds to propose the invalidity of the marriage in question. "To speak of the bonum coniugum is to express one of the institutional ends of marriage. Given this, one has to admit that its actual fulfillment is not necessary for the purpose of the valid existence of the marital bond itself, just as in a like way the birth of offspring is not necessary" (Bianchi, op. cit. 69).

32.       The matter can be approached in different ways. One can say that just as marriage generates no right to offspring or procreation, so it generates no right to the bonum coniugum. One can take an opposite course and say - with equal logic - that just as marriage creates a right to actions open to procreation (even if procreation does not actually ensue), so it creates a right to actions open to the bonum coniugum, even if the bonum coniugum is not actually achieved. Nevertheless, it is not clear at this stage how much we can progress if we adopt the latter approach. The evident difficulty is that when we speak of "acts open to procreation", we know exactly what we are referring to: the conjugal act in all its specificity and unquestionable uniqueness. The impotent person cannot give the right to this act; and so his or her consent is null. But the expression "acts open to the bonum coniugum" may refer to an unlimited number of actions - not all of which can be the object of a strict legal right. One is therefore faced with the still unresolved problem of determining which of these actions may be the object of a right that is (at most) moral, but not juridic; and which - among those to be considered juridic - is in fact essential-constitutional, and so, the person incapable of realizing it, is incapable of giving a right to an action which enters into the essential ordination and openness to the bonum coniugum.

33.       As canon 1095 clearly states, it is only in relation to essential rights or obligations of marriage that consensual incapacity can arise. Which are the essential rights/obligations involved in the bonum coniugum? Sexual fidelity is certainly an essential marital obligation intimately related to the "good of the spouses", and an incapacity at consent to be faithful unquestionably invalidates. But who would hold that an incapacity always to live courtesy or patience has the same juridic effect: in other words, that all persons, rude, impatient or nervous by constitution, are incapable of a valid marriage?

            So it appears that the difficult subject of whether or how c. 1095 applies to the bonum coniugum calls for a prior and far more precise study of the nature of the bonum coniugum than has so far been achieved. Only after canonical reflection arrives at a concrete formulation of the juridic nature and fundamental content of the "good of the spouses" itself, will it be possible to decide, with juridic precision, which are the essential obligations deriving from it.

            In summary, the present feeling of the undersigned Ponens is: a) not having yet attained a precise notion of the juridic nature and content of the bonum coniugum, we are not in a position to determine what an incapacity in its regard involves; b) incapacity arises under c. 1095, 2° and 3° only when the anomalous psychic condition of the subject impedes due critical appreciation or renders impossible the actual assumption of the essential rights or obligations of marriage; hence invocation of the bonum coniugum for the purposes of the canon can only be usefully done in the context of marital rights or duties which are essential, not those that are accidental (the principal rights and duties derived from the augustinian "bona" are certainly essential; clear demonstration of the essentiality of some other (autonomous) right or duty has yet to be given); c) in the end we are possibly going to conclude that an "incapacity for the bonum coniugum" is not juridically definable in any way which adds light to what we already know about consensual incapacity.

35.       Marriage: pastoral ideal and juridic reality. An interpretation of the "good of the spouses" as consisting in a life together in which each spouse is entitled to feel himself or herself "realized" or "fulfilled", seems individualistic more than personalistic (cf. Pope John Paul II's Address to the Rota of Jan. 27, 1997, quoted below); moreover it is doubtful if it can lead to any useful juridic application.

            An interpretation of the bonum coniugum as consisting - according to God's plan in instituting marriage - in the maturing of the spouses as persons through the generous dedication that married love calls for, is not only in harmony with true christian personalism but also connects evidently with the other notable personalistic phrase introduced by the Code in c. 1057 § 2; that married consent is the act of the will by which the spouses "mutual give and accept one another".

36.       True conjugal love attaches personalist moment not only to the sincere "giving of oneself", but also to the no less sincere "accepting of the other": which means accepting him or her as he or she really is, i.e. with defects. The married commitment - "for better or for worse, unto death" - is always the covenant of two defective people pledged to love each other as they are, defects and all, and to be faithful to this task. By this fidelity, more than by anything else, spouses will contribute to the actual achievement of the "good" they are called to.

37.       The bonum coniugum obviously does not consist in the happiness of one spouse alone. But neither can it be held to consist just in "shared happiness". If it is accepted that God's most providential will is the major force at work for the good of the spouses, then one must admit that divine providence seems in practice to involve many things that, to human eyes at least, cannot scarcely be termed "happy"; ill-health, loss of job, financial or legal difficulties, etc. Yet it is true that "shared hardships" can contribute enormously to the "good" - the growth as a person - of each of the spouses, and of both together. Even what might be easily regarded as unilateral hardships (such as the burden of a disabled husband falling totally on the wife; or the more extreme case of infidelity of one partner, where the other remains faithful to the bond) can serve the deeper good of at least one of the parties, in a way that perhaps would not have been brought about by some easier lot.

38.       "There is a specific and unique way of acting and reacting to one another which constitutes the good of the spouses" (Pfnausch, op. cit. 548.). One could agree with this as far as it goes (it omits God's action), adding however that, among the many ways of acting towards one another, none can be more specific or unique to spouses than mutual perseverance in fidelity, until death, in a union open to the natural and unique fruit of conjugal love. It is logical then to see the augustinian "bona" as linked to the bonum coniugum, inasmuch as the former normally build the framework in which the latter can grow and be achieved: "the bonum coniugum is naturally connected with the bona of "fides", "sacramentum" and "proles", in such a way that these bona generate conditions favorable to the bonum coniugum itself" (c. Defilippi, Dec. 1, 1995). So the bonum coniugum results not only from the way spouses react to each other, but even more from the way they react to the commitment freely and mutually made in consent; and particularly from the way each (ideally, both together) reacts to what life sends, or God permits, in the course of their marriage.

39.       "From the viewpoint of authentic personalism, the Church's attitude implies the affirmation of the possibility of constituting marriage as an indissoluble bond between the persons of the spouses... In consequence, any concept of the conjugal union would be out of harmony with a true personalistic understanding which, by calling that possibility into doubt, led to the denial of the existence of a marriage whenever problems in the spouses' life together arise. At the root of such an approach lies an individualistic culture, which is the antithesis of true personalism... Within the viewpoint characteristic of christian anthropology, there must be an awareness of the need for sacrifice, and the acceptance of sufffering and struggle, as indispensable realities in order to be faithful to one's personal duties" (Pope John Paul II: Address to the Rota: 1997, p. 4).

40.       The pastoral message conveyed by Gaudium et Spes when it describes marriage as a "community or partnership of life and love", presents an ideal of matrimony that individual christian married couples are called to "incarnate" or realize in their own union. A great and precious testimony is offered to the world by those who turn the ideal into reality; and they themselves, through their perseverence in the generous dedication that this task demands, will be blessed by a supernatural joy which has its roots in the Cross. "Although all men are called to marriage so as to experience certain good and great joys (cf. Gaudium et Spes, 49), a totally perfect [conjugal] relationship, pervaded with happiness, is not the existential image of christian matrimony" (c. Serrano: Nov. 22, 1985: R.R.Dec., vol. 77, 523). While real, though not perfect, happiness can be achieved by the Christian in following his or her vocation, it is always in proportion to the generosity of self-giving.

41.       It was therefore not to be expected, in the formal juridic decanting of the thought of the Council which is represented by the new Code of Canon Law ("the last conciliar document", in the words of John Paul II: AAS 76 (1984) 644), that the revised matrimonial law could or should take its canonical parameters directly from the ideal of married life and love which Gaudium et Spes presents. The new legal description of matrimony, in c. 1055, is not the conciliar expression, "communitas vitae et amoris", but rather the traditional roman law formula of "consortium totius vitae". This latter description does not of course exclude the Gaudium et Spes ideal, but simply indicates what is essentially involved when a man and a woman set out together on an enterprise in which the way towards an ideal to be attained lies before them. What is essential must be there, what is ideal has to be striven for.

42.       The purpose of the 1983 legislation, in its canons on marital consent, is to trace out the legal norms that can protect marriage in its constitutional reality, so that a marriage is genuinely established between two capable persons, in the exercise of their ecclesial and human rights (c. 1058), and in ordination to its ends (c. 1055). The subsequent fulfillment of the hoped-for promises or potentials of marriage depends in each case on personal free will in interplay with the will and grace of God, as he works for the good of each married couple.

43.       A few other brief observations can be made relating to the case before us. Immorality, or even criminality, is not to be confused with incapacity. In other words, one cannot automatically deduce incapacity from immoral or even from criminal conduct. After all, one cannot hold that every misdeed (theft, murder, adultery...) is beyond the dominion of the will. A misdemeanor per se betrays a moral fault, but in no way an incapacity for matrimonial consent. Otherwise one is easily led into the thesis of a deterministic nature according to which all immoral persons and/or all criminals suffer from psychica illness.

44.       "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" (decis. coram the undersigned, Oct. 20, 1994: R.R.Dec. vol. 86, p. 451)

III. The Argument


45.       The many inconsistencies and lack of clarity marking much of the evidence given in this case, makes it impossible to arrive at any moral certainty regarding the issue before us. We take note of the opinion given by the respondent's brother: Johannes: "Ritengo che ambedue le parti non sono credibili e sicuramente sarebbero capaci di giurare il falso" (18/10).

46.       That the respondent appeared psychically normal before and at the time of the marriage, is one of the few matters on which a certain unanimity emerges. The petitioner testifies: "Della malattia (conventae praematrimonialis) non so nulla" (8/19); "Io non vedevo la convenuta come una persona malata" (9/28). Marianus, the petitioner's father (who openly states, "Verso la convenuta sono disposto negativamente": 32), declares, "Inizialmente lei dava una impressione positiva. Poi, osservando e collegando alcuni fatti ho cambiato idea su de lei... Lei dava l'impressione di essere una ragazza normale e sana... Subito dopo le nozze non si poteva notare che la convenuta non fosse capace di assumere e realizzare gli essenziali obblighi del matrimonio... Inizialmente la convivenza delle parti andava bene" (33-34); "Non ho sentito di eventuali malattie della convenuta nel periodo della sua infanzia oppure adolescenza. In mia presenza, non si diceva che la convenuta non fosse adatta al matrimonio" (34). Andreas, the petitioner's brother, who says, "Avevo una impressione negativa" [towards the respondent], justifies this simply by saying "Ho notato che lei parlava senza rifletterci prima". As agains this he adds: "La convenuta dava l'impressione di essere una ragazza normale e sana" (37). Even Johannes, the respondent's brother, who finds neither party credible, states: "Era normale e sana" (20); and her sister, Halina: "Prima del matrimonio non ho sentito dire che lei non fosse adatta al matrimonio" (23/18); "Non ho notato nulla che potrebbe indicare l'incapacità della convenuta ad una normale vita nel matrimonio" (23/23); in second instance: "La convenuta non era malata né di nervi né psichicamente" (68/12).

47.       The petitioner's rotal advocate writes that the affirmative sentence in second instance "is based not on moral trust derived from the evidence of the witnesses, who know very little, but rather on the concordant opinions of the experts who declare the respondent unfit to assume matrimonial duties". In effect, the judges of the appeal tribunal all but explicity acknowledge that the declarations of the parties and witnesses are not sufficient to resolve the matter: "In base alle dichiarazioni dei testimoni è stato molto difficile ai Giudice valutare la "capacitas" della convenuta per il matrimonio" (86). Therefore, "per conoscere la vera natura delle cose (can. 1574) si è usufruito dei pareri legali di 4 periti legali-psichiatri... Il Tribunale Metropolitano di Danzica perciò dispone di tre pareri conformi riguardanti lo stato di salute psichica della convenuta nel momento di contrarre il matrimonio con l'attore, emessi da 4 psichiatri periti legali. Questa è una testimonianza molto significativa, che il Tribunale ha preso in considerazione emettendo la sentenza" (86-87). We would make the following observations:

            a) the opinion of the civil experts, given in 1979, is backed by a personal examination of the respondent, and therefore carries more weight per se than that of the ecclesiastical experts, whose opinions are based simply on a reading of the acts;

            b) the civil expertise concludes: "non diagnostichiamo nella convenuta Danuta nessuna malattia psichica come anche nessun ritardo mentale... La convenuta presenta anomalie comportamentali come anche dell'atteggiamento che si possono riferire a caratteristiche psicopatiche della personalità; ciò però non da i fondamenti per dubitare del discernimento riguardante le azioni criminose" (42). In other words, while these two experts who examined the respondent, find some "anomalous forms of behaviour" in her, they do not consider these to be such as to allow any doubt concerning the woman's personal responsibility - nor therefore concerning her capacity for freely acting, whether morally or immorally;

            c) contrary to what the appeal judges say (87), the two civil periti do not relate their opinion to the moment of the marriage;

            d) the expert opinion of Dr. AJS in first instance of the ecclesiastical process, given in Nov. 1988 and based only on a reading of the acts, does not seem to merit being called a true expertise. After a word for word quote of the civil expertise (regarding the "anomalie riferite alle caratteristiche della personalità psicopatica"), it goes on, without any further consideration or argument, to affirm: "Questa [?] malattia esisteva già nel momento di contrarre il matrimonio... Il disturbo ha un carattere cronico... Prendendo in considerazione ciò di cui sopra, la convenuta non poteva con responsabilità e con discernimento esprimere il consenso matrimoniale" (45). The first sentence would seem to rightly judge that the expert came to "groundless conclusions" (57).

            e) the expert opinion of Dr. ANS in second instance, also "super actis", seems to be based on acts that are "not proven". "Diagnostico nella convenuta il disturbo della personalità sotta la forma della "psicopatia" (77); however, "La mia diagnosi viene fondata soprattutto sulle patologiche deviazioni del carattere che si manifestano con un forte abassamento dell'affetto, soprattutto dell'affetto morale, etico, dell'amore e dei legami familiari, ciò che ha condotto come risultato ad un reato così crudele come è il tentativo di dar fuoco alla propria nonna". The expert continues: "Prendendo in considerazione il fatto che la convenuta nell'ambiente godeva di una opinione negativa come anche il fatto che probabilmente ha passato la malattia della meningite, da quel momento si datano i suoi primi reati e i conflitti con la legge e questi si presentano ancora prima di contrarre il matrimonio con l'attore, ritengo che la convenuta... non era capace di contrarre [il matrimonio] come anche di assumere e realizzare gli essenziali obblighi del matrimonio" (78). Regarding "il tentativo di dar fuoco alla propria nonna", we would point out that while some attempt to burn either her grandmother's house or her grandmother herself is somewhat obscurely imputed to the respondent, there is no evidence given of the precise terms of the accusations or of any eventual civil sentences. Nor can any negative public repute of the woman be invoked as a matter proven. The petitioner's mother, CK, states: "Non conosco l'opinione dell'ambiente... Non so dire niente al riguardo" (72). His brother, Andreas, says: "Non conoscevo l'opinione pubblica circa la convenuta prima del loro matrimonio. La convenuta dava l'impressione di essere una ragazza normale e sana" (37/22). The respondent's brother, Johannes, "Nel suo ambiente la convenuta godeva piuttosto di buona opinione" (23/22). Nothing certain can be concluded from other statements (23; 26/17; 68);

            f) the second instance sentence makes no judicial appraisal of the experts' various opinions or of the scientific trust each may merit. They pass over in silence the great difference between the opinion of the civil experts (who found no incapacity in the respondent) and that of the ecclesiastical experts; and they do not weigh the possible canonical relevance of each opinion;

            g) the judges fail to indicate both what was the grave psychic anomaly from which they consider the respondent to have been suffering at the time of consent, and which were the concrete matrimonial obligation or obligations in regard to which the respondent would have been consensually incapacitated as a result of such grave anomaly. There are some references to the respondent's "kleptomania"; but no argument to establish, on the one hand, that the actions she was accused of were the consequence of an irresistible psychic condition and not just of simple moral weakness or, on the other hand and even more importantly, to show why kleptomania in itself violates some essential matrimonial obligation, as would be necessary to provoke consensual incapacity under the terms of c. 1095, 3° .

48.       If we return to the lay evidence, perhaps the only other point to emerge with some clearness is that the breakup of the marriage was largely, tho not inevitably, the result of the respondent's civil trial and imprisonment. The petitioner says: "La nostra convivenza è diventata impossibile a causa della simulazione del furto a casa e perché mi ha rubato dei soldi. Inoltre la convenuta portava via dalla casa degli oggetti. Anche i nostri regali di nozze. Lei era colpevole di tutto" (8/23). His mother: "La convivenza iniziale andava bene. Mio figlio non ci credeva in tutte queste accuse" (31/25); "Il processo e la colpa dimostrata sono diventati i motivi della loro separazione" (32); his father confirms (35/27). Halina, the respondent's sister, "Mi sembra che solo il soggiorno della convenuta in carcere ha fatto si che il matrimonio fallisse" (70); her brother Zenon thinks the same (27).

49.       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, of the incapacity of the respondent to assume

the essential obligations of marriage due to causes of a psychic nature".


            Given in the Tribunal of the Roman Rota, March 26, 1998

            Cormac BURKE, Ponens

            Kenneth E. BOCCAFOLA

            Daniel FALTIN