Sentence of July 23, 1998 (Malta) (c. 1095, 2 & 3)

I. The Facts

1.         John D., an architect, and Jane A., met in 1958. Soon after John proposed to her, and they became engaged in March 1959. The marriage, which took place in October 1961, in - Malta, followed a fairly normal course for three years, during which time a daughter was born. Later on, in 1967 and 1970, two adulterous children were born of Jane's repeated infidelity; John however forgave her, adopting the children. Finally, at the end of twenty years, she left John and went to Rome where she contracted a civil marriage with here last lover.

            In December 1985 John petitioned the tribunal of Malta to declare the marriage null on the grounds of total simulation on the part of the woman. A Negative decision was handed down in October 1986, and the petitioner appealed to the Regional tribunal of second instance. In April 1988 he deserted the case, as he had presented a new petition to the Malta tribunal, alleging the nullity of the marriage on the grounds of the lack of discretion of judgment and/or the incapacity to assume the obligations of marriage on the part of the respondent. The issue was joined in these terms on July 2, 1988. The parties and several witnesses having being heard, the Malta tribunal gave a negative decision on October 30, 1992, which was overturned by the Metropolitan Appeal tribunal on October 6, 1993.

            The cause was then sent to this Apostolic tribunal, where the petitioner appointed his own advocate. The doubt was concorded in the same terms as in first instance. A further instruction took place with the interrogation of the petitioner and two witnesses. Although the respondent was cited, she never appeared to give evidence. The advocate's brief and the animadversions of the Defender of the Bond having been submitted, we must today, in the third degree of jurisdiction, give our answer to this case.

II. The Law

2.         Canon 1095 states: "They are incapable of contracting marriage: ... 2. who suffer from a grave lack of discretion of judgment concerning the essential matrimonial rights and duties which are to be mutually given and accepted; 3. who are not capable of assuming the essential obligations of matrimony due to causes of a psychic nature".

            For the purpose of the case before us today, it is sufficient to dwell on some brief but important points. The judges of second instance, taking note of the plentiful testimony that the conjugal life between the parties was of a normal nature, at least at the start, observe: "This Tribunal notes that these statements do not prove positively the respondent's ability to fulfill the essential matrimonial obligations; such an ability cannot be taken for granted, it has to be proved positively" (III, 79 [emphasis added]). This statement is unacceptable, since it inverts the burden of proof which, as canon 1526 § 1 states, "rests on the person who makes an allegation". In nullity cases, proof of the validity of consent is not required. Marriage after all "enjoys the favor of the law; consequently when a doubt exists, the validity of a marriage is to be upheld until the contrary is proven" (c. 1060). Canon 1585 must also be borne in mind: "A person with a presumption of law in his or her favor is freed from the onus of proof, which then falls on the other party". More concretely still, capacity to marry is presumed a person in accordance with c. 1058. For cases under c. 1095, it is the alleged incapacity - not the presumed capacity - which requires proof.

3.         Humanistic psychology. "Contemporary psychology is characterized by a trend away from systems and formal theories; it is largely preoccupied with the search for generalized empirical relationships and avoids theoretical formulations that go beyond the data" (New Catholic Encyclopedia, Catholic University of America, 1967, vol. 11, p. 973). This has become specially noticeable in the "humanistic" psychology proposed by such well-known figures as Abraham Maslow (1908-1970) and Carl Rogers (1902-1987), whose principles dominate much of modern psychological analysis and therapy. Roger's "client-centered therapy (earlier called nondirective psychotherapy) is among the most widely employed techniques in clinical psychology" (Grolier Multimedia Encyclopedia (CD-Rom Edition, 1998), under "Humanistic Psychology"; cf. Enciclopedia Italiana Grolier, vol. 11, p. 235). It is important to bear in mind the scientific and philosophical suppositions which underlie this approach to the problems of the human «psyche», and to their treatment.

4.         "An aversion to systematic theory, and an emphasis on experience as the source of knowledge, are characteristic of humanistic psychology" [Grolier Multimedia Encyclopedia, ibid; emphasis added]. Humanistic psychology works therefore from scientific-philosophical principles and from a view of human nature, that fit with difficulty into christian anthropology which explains man's nature, tendencies and goals in the light of his creation and redemption; and which, without ignoring human experience, finds its chief source of knowledge in Divine Revelation. It follows that, while no doubt the skilled christian practitioner may effectively employ some of the therapies of the humanistic school, he or she needs an adequate critical appreciation of the basic suppositions underlying the system.

5.         It is sufficient for our present purpose simply to note the following. Humanistic psychology proposes the "self-actualized" person as the model of psychic health. Self-actualization means having developed one's inner resources to the point of being an independent person, sure of oneself as having realized one's own identity. "Self-doubt" is considered a serious impediment to psychological health. Along with "self-help", particular importance is to be attached to "self-esteem" - through which people "learn to like themselves". Positive self-judgment becomes the norm - both the condition and the means - of psychic health. Rogers proposes that "the individual, in effect, becomes his own significant social other", and "experiences himself as the locus of evaluation" ("A Theory of Therapy, Personality, and Interpersonal Relationships", in Psychology: A Study of a Science, ed. Sigmund Koch, vol. 3, p. 209).

6.         This analysis, both of the "actualization" by which the human person - the "self" - is fulfilled or realized, as well as the present impairment or disabilities that he or she suffers, is in evident contrast with the fundamentals of christian anthropology and the whole doctrine of salvation. It is "only in the sincere giving of himself that man can fully discover his true self" (GS 24). Only the Law that comes from Christ, "by stripping man of the presumption of his self-sufficiency, can lead him to ask for and to receive «life in the Spirit»" (Veritatis Splendor, no. 23). We must deny ourselves, so as to find ourselves: "He who finds his life will lose it, and he who loses his life for my sake will find it" (Mt 10:39; cfr. Mt 16:24-25). And our true "self" is to be found only in Christ: "it is no longer I who live, but Christ who lives in me" (Gal 2:20). "He must increase, but I must decrease" (Jn 3:30).

7.         In the Encyclical Dominum et Vivificantem, the Pope speaks of "Christ's self-emptying through his Passion and Death on the Cross" (n. 109), while in Fides et Ratio, he insists on the need to seek understanding of this kenosis of God, a grand and mysterious truth for the human mind, which finds it inconceivable that suffering and death can express a love which gives itself" (no. 93). «Kenosis» is a totally foreign concept to a humanistic analysis of man, as well as to the therapy it proposes for curing his ills. Yet it remains fundamental for Christians, since Christ's self-emptying calls for imitation on our part if we are to be saved from our sins (which are our true ills), and to achieve the "fulfillment" that Christ himself offers us.

8.         The annual addresses of the Holy Father to the Roman Rota are meant, as is well known, for all the tribunals of the Church. A frequently repeated theme in recent years is the fact that "the anthropological view which underpins so many currents of thought in the field of modern psychological science is as a whole irreconcilable with the essential elements of christian anthropology", and the judges' consequent responsibility to decide cases and especially to weigh psychological reports, in the light of the principles of true christian anthropology (cfr. AAS, vol. 79 (1987) 1456-57; vol. 80 (1988) 1184; vol. 85 (1993) 1259; vol. 87 (1995) 1013-1015). An ecclesiastical judge must bear the Pope's cautions very particularly in mind when presented with an expertise which gives a diagnosis of an inadequate or incapable personality in a contracting party, basing this largely on the "poor self-esteem" and/or "weak self-image" which the expert considers the party to possess.

9.         At times a tribunal is offered a psychologist's opinion to the effect that a person suffered from an "inability to build an intimate personal relationship throughout married life". Whatever the value of such an opinion within the proper field of psychology, it is, as it stands, of practically no forensic value for the canonical determination of marital capacity. The married relationship is by definition "personal" or "interpersonal". But the same can be said of friendship, and indeed of any relationship between persons. What distinguishes and specifies the married relationship is not "interpersonality", but "conjugality"; i.e. the fact that it is a committed relationship between one man and one woman, for life, and open to the potential fruit of their complementary sexuality (cfr. c. 1055 § 1). Valid consent depends on a capacity not for "intimacy", but for commitment.

10.       One could perhaps refine this by saying that it is the essential aspects of the conjugal covenant which render the relationship itself "intimate", with that uniquely donative and interpersonal character that springs from the mutual acceptance of the three augustinian bona. Within this perspective, and in cases coming before church tribunals under numbers 2 or 3 of c. 1095, a canonical judgment must be rendered about the alleged lack of capacity of the spouse(s) to appreciate or assume the essential "intimacy" constituted by this mutual donation/acceptance (cfr. c. 1057 § 2). A psychological opinion concerning capacity for "intimacy", understood in some other [physical? affective?] sense, is in principle of no help to solve the canonical issue before the tribunal.

11.       A "rigid upbringing" in a person's youth, even if this is reasonably established from the Acts, has in itself little force as an argument for consensual incapacity under c. 1095 (whatever its value for pleas under c. 1103). To acquire any real weight it would have to be proved both that the parental "rigidity" was of a totally abnormal type, and that it provoked gravely anomalous psychic consequences in the child. The difficulty of proving is all the greater in view of the considerable disagreement which reigns among educational theorists themselves about what is the right type of education. Where they do tend to agree is that, whatever the norm or "ideal" proposed, very few parents manage to provide it. Most educationalists consider that the majority of young people today suffer from "over-permissive" upbringing rather than from one that is "over-rigid". Either extreme renders them less prepared - but scarcely incapable - for life, marriage included.

III. The Argument

12.       There are unusual aspects to this case: a marriage, after three years of courtship, between a man of 29 and a girl of 19. He is very much in love with her, while she seems to have accepted him mainly as a "good match". A child is born to the couple; two further children, conceived adulterously by the respondent, are born and accepted into the family. The union lasts for 20 years, when the woman finally deserts the husband. There is no question about the eventual immoral life of the woman. The issue before us however is not her postnuptial immorality, but whether she was consensually incapable of marriage, due to a grave lack of discretion and/or to an incapacity to assume the essential obligations of matrimony.

13.       Re the conjugal life of the parties. There is plenty of evidence in the acts as to the normal married life of the parties, at least in their first years together. The petitioner himself says: "Up to the birth of the first born which happened in U.K., in Jan. 1963 everything went all quite well; our communications were always normal..." (I, 28). "Yes, our married life was happy at the beginning" (I-II, 13); "In fact our marriage was marked by moments of happiness and moments of unhappiness and these latter moments were owing to her actions of infidelity" (I-II, 15).

            There seems to be no justification for what the appeal judges state: "she made no effort to build an intimate relationship with John" (II, 79). The respondent herself contradicts this directly, with her evidence that married life was happy "at the beginning because I made an effort. He too did his best to keep me happy. This lasted until I met another man in 1964" (I-II, 27).

            The witnesses also testify to normal conjugal relations, at least at the start. The respondent's mother: "For the first two or three years they were happy" (I-II, 39; 40/27a). Fr. Alfred A, a cousin of the respondent: "Outwardly they gave the impression that they were happy" (I-II, 44). Marlene S.: "Up to the time they were in England married life seemed happy between them... It was after they came to Malta that we came to know from a friend that she had been unfaithful to him, this was in 1967" (I, 40). Mary D.: "Marriage seems to have been happy at the beginning. Serious troubles began after the birth of the first child" (I-II, 56).

            The strongest evidence that marriage was fairly normal for many years comes from their daughter Adelaide: "I [first] came to know about problems betwen my parents when I was nineteen years old" [i.e. 1982]. This took her quite by surprise: "I know that they sometimes used to argue maybe about finances but they were normal argues between two normal couple, they both loved us and cared for us very much" (I, 47).

14.       Re the respondent's character. Some witnesses speak of her negative traits. M. S.: "irritable and egoistic type... quite negativistic in attitude... very fussy and independent" (II, 37). The petitioner's sister, Ivy: "she was highly extrovert, very talkative and sociable... I would say she was very frivolous... she was very headstrong and proud and I consider her to be negativistic. She was the fickle type, very nervous and excitable... she was egoist and all she cared for was her person and her moods. Of course many of these things I came to know after they married" (II, 50-51).

            Others, on the contrary, feel differently. Mr. Carmel A, who knew the family of the respondent well: "Jane has a joyful and social character... Jane was a sort of "happy go lucky" person. She was always jovial" (III, 9). Adelaide, the parties' daughter, describes her mother's character in a rather positive way: "extrovert... frank and open... adventurous and very sociable. She was good natured, maybe a bit headstrong but cooperative. She was fussy and tidy, responsible and persevering, a bit tense and the excitable type, artistically sensitive, intellectual, polished, refined and very imaginative" (I, 48).

15.       Re a grave lack of discretion of judgment in the respondent. Jane says of herself at the time of the marriage: "I was still immature although I knew what I wanted and what I didn't want" (I-II, 24). As the judges of first instance remark, "This is not the statement of someone who does not have the minimum of discretion of judgement" (I, 119). Regarding her capacity to evaluate marriage, the respondent affirms that at the time of the wedding she possessed "this basic understanding [of the essential qualities and responsibilities of married life]" (I-II, 25).

            Asked, "At the time of the marriage did they have a basic understanding of the essential qualities and responsibilities of married life?", M. S. replies: "Both had this basic understanding and I would say they were ready to assume them" (I, 39). Ivy, the petitioner's sister, replies affirmatively regarding her brother, adding: "I am quite sure that even Jane had this basic understanding" (54). Monica S. a friend of the respondent: "I think they did" (I-II, 66).

16.       Re the capacity to assume of the respondent. Regarding domestic duties, the petitioner does not deny Jane's responsibility: "She used to cook and take care of the house" (I, 26); "Heidi was born. I do not say that she didn't care for the child..." (ib.).

            The petitioner in first instance strongly asserts "my wife's inability of being exclusively faithful to one man" (I, 29). In the rotal instance he adds no new element of evidence, simply repeating his allegations made in first instance: "Qui voglio rilevare solo un punto: che Jane si comportava senza freni" (II, 23-24). But he brings forward nothing in the way of proof that all of this was the result of an incapacity, and not simply of a deliberate choice, made after proper consent had been given, not to fulfil the obligation of faithfulness.

17.       Re the freedom of the respondent. The petitioner's advocate insists on her rigid and conservative family background, with a "repressive father". This goes much beyond what the petitioner herself had said: "My father was strict but he was ready to change opinion after having talked to my mother. My home was a happy one... My father was for me an idol..." (I-II, 22). In any case, as we have noted in our "In Iure" considerations, a rigid upbringing does not prove matrimonial incapacity.

            Rev. M. A., who however first knew the parties after the wedding, asserts: "Credo che il padre fosse molto stretto con sua figlia. Per questo lei non osò disubbidere ai suoi ordini e finì per sposare un uomo che non amava affato" (Summ. Alt. 15). As against this, the respondent's mother explicitly denies that there was any pressure (I-II, 38/18d).

            No one denies that the respondent's relatives encouraged her to marry an architect higher up on the social scale, but there is no proof whatever of any force exercised on her, or of any lack of freedom in her decision to accept the proposed marriage. She did say she did not love the petitioner, but even her own words indicate that she had some positive feeling towards him: "When once I gave him back my engagement ring and told him that I did not love him and that I was still in love with the other boy friend, he burst into tears and told me that in time I would grow to love him. He also pleaded me not to leave him because this would be his second bitter experience, and I pitied him and made it up again" (I-II, 24). These are not the words of a person under force.

18.       Contrary to what the advocate suggests, the witnesses do not confirm the absence of love between the parties, but rather do the opposite. Marlene S. says: "the courtship was quite normal. There were the usual signs of affection... As far as I can say they were in love and that is why they wanted to marry... I did not notice anything [odd] and they related very well together. They were very loving as a pair of doves. She seemed very keen on the marriage" (II, 38-39). The respondent's mother: "Both gave the impression of being happy... Apparently they were happy and in love with each other, although she told me later on that she had not been in love with him. In my opinion, they wanted to get married because they were in love to each other" (I-II, 37-38). Her father: "They both seemed happy with the idea of getting married... I always had the impression that they were in love with each other" (I-II, 49). Mary D.: "John was really in love with Jane; on Jane's part however I think it was more affection rather than love" (I-II, 55).

19.       It must be said that the petitioner himself does not seem to know himself well. On the one hand he claims: "I am a weak character" (I-II, 6); yet immediately he states, "I am... rather hard headed. In fact I always tried to prove my point" (I-II, 6). This is confirmed by his daughter: "my father was always the dominant type" (I, 49). And Fr. Alfred A. says that the petitioner is "very rigoristic due to an exasperated sense of duty" (I, 43); cf. his "intransigence" (ib. 46). The respondent said that in their married live together, John "remained taciturn and imposing" (I-II, 27); "He was a very hard-headed person" (I-II, 21). Her father thinks that he was "hard-headed" (I-II, 48).

20.       Expert opinions. These are completely insufficient to support a judicial sentence concerning consensual incapacity. Rev. L.C. ("super actis", without any examination of the respondent) states: "Respondent is not suffering from any mental illness. Yet, one cannot help noticing the negative features of her personality" (I, 68); features that consist above all in her "very poor self-esteem" (ibid.; cf. 64, 69) and "weak self-image" (I, 69). Following on what was noted in our "In Iure" considerations, we cannot accept that these traits offer any proof of consensual incapacity.

21.       The expert also notes her "lack of emotional commitment to John" (I, 67; 70). He concludes that she did not "build an intimate personal relationship with John throughout all her married life. She was never emotionally involved with John... This impairment of her ability to build a relationship with John was the effect of her lack of critical judgment about her marital consent" (I, 70). The expert raises "negative features of character" (whose evaluation from the viewpoint of christian psychology is not easy nor conclusive) to the level of proof of incapacity; and regards her lack of emotional commitment (which is only partly proved) as an incapacitating factor. Neither christian anthropology nor sound jurisprudence can accept these views and conclusions.

22.       We concur with the first instance judges: "this is not a case of inability but of unwillingness" (I, 121). As the same judges state: "The violation of marital responsibilities cannot be identified with incapacity to marry" (I, 120). One must distinguish between moral failure and consensual incapacity.

23.       The daughter of the couple, when asked about the causes of the breakdown in the marriage, says, "I do not know the exact reasons. My idea is that my father was always the dominant type and she on her part was irked by this dominance" (I, 49). As time went on, the respondent began to be unfaithful and to neglect other conjugal duties, not from any incapacity on her part to assume or fulfil them, but rather out of a deliberate choice which had its origin in a lack of love for the man, from the beginning of the conjugal relationship, increased by the John's behavior since, perhaps because of the great difference in their age, he never treated the respondent as an equal partner: "He used to impose his opinions due to the ten years difference in our age; he treated me as his child" (I-II, 21-22); "He wanted to mould me according to his idea. This made me start hating him" (ib. 23).

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

            "IN THE NEGATIVE, that is, the nullity of the marriage has not been proved in the case before the Court, on any of the grounds proposed".


            Given in the Tribunal of the Roman Rota, July 23, 1998.

            Cormac BURKE, Ponens

            Kenneth E. BOCCAFOLA

            Angelo Bruno BOTTONE