06. The Essential Rights/Obligations exchanged in Consent

Let us sum up our position as developed so far. It is not enough to say that the object of matrimonial consent - what the man and woman consent to - is marriage; that is obvious. It is not enough to say that it is their mutual self-gift as spouses - the "se tradere/acceptare"; that is a rich anthropological and moral statement, full of truth but also full of metaphor. The metaphor has to be sifted out and adequatley interpreted before the "se tradere" can become a working term for jurisprudence. That is why we have been making this analysis in an attempt to pin down the specific juridic content of the conjugal self-gift.

            We have seen that what the spouses give and accept - with juridic effect, productive of rights and duties which the law can take cognizance of - is their complementary sexuality in the three aspects of exclusiveness, procreativity and permanence.

            Our analysis therefore, applying the personalism of the Second Vatican Council and of Pope John Paul II, marks a line of continuity with tradition. Procreativity, exclusivity, permanence - the augustinian "bona" - define the essence of the conjugal commitment. And the object of marital consent - the self-gift of the spouses - is therefore specified by these three essential characteristics or properties of marriage.

            Jurisprudence has always been concerned with the question of the fundamental rights and obligations which matrimonial consent gives rise to. This concern has become greatly intensified in recent decades, especially since the promulgation of the 1983 Code which makes valid matrimonial consent hinge on the capacity to understand minimally and to assume effectively those among such rights and duties which are essential (c. 1095, 2 & 3). Such essential rights/obligations must obviously derive from the juridic object of matrimonial consent - i.e. from what the spouses necessarily and constitutively consent to. In fact, to attain a clear notion of the object of consent appears to be a pre-condition for any adequate investigation into the essential rights/obligations that derive from it. So, having advanced our opinion regarding this object, as it is presented by the 1983 Code, it may be of interest to briefly consider the essential rights/obligations that derive from the object so understood.

            It is generally accepted that matrimony cannot come into existence without a basic understanding and a free acceptance of what is fundamentally implied in the three "bona", or without the ability to assume it. As we read in a Sentence coram Pinto, of July 8, 1974, "It must be borne in mind that not every defect is sufficient for a declaration of nullity, but it must be so great that it renders the contracting party incapable of making a free choice or of assuming the essential duties of the three "bona"..."(R.R.Dec., vol. 66, p. 501); and in another of July 3, 1979, coram Pompedda: "Not every defect of balance or maturity is enough to induce the nullity of matrimonial consent; this can only be brought about by a defect such that it makes the contracting party incapable of a free choice or of assuming the essential obligations and in particular the three "bona" of marriage" (vol. 71, p. 388). So, remembering that the augustinian bona are "inter essentialia matrimonii" (cfr. c. Felici, Jan. 18, 1955: vol. 47, p. 54.), it follows that the essential rights/obligations are - at least and in the first place - those that necessarily derive from the "bona".

            The personalistic value of the "bona" has unfortunately become obscured and almost forgotten in canonical usage over the centuries; which makes its rediscovery all the more urgent. In order to resee these "goods" in a personalist light, one must overcome the tendency to regard the "institutional" and the "personalist" aspects of matrimony as being necessarily in opposition (cfr. the author's study: "Marriage: a personalist or an institutional understanding?" in Communio 19 (1992), pp 287ss. "Procreativity and the Conjugal Self-Gift": Studia Canonica 24 (1990), pp. 43-49.). The "bona", as we have sought to show earlier, relate to singular expressions of personal and mutual commitment. They are in fact the first elements that personalize the institution of marriage. Nothing, we insist, so underlines the uniqueness and extent of the conjugal self-donation as the fact that it is the gift of personal procreative power made to another in an exclusive and life-long union.

            There can then be no question that the rights/obligations intrinsically related to exclusiveness, procreation and permanence are essential rights/duties of matrimony, for the purposes of c. 1095. If the intellective/critical faculty is gravely impaired in relation to these rights, or if the elective-executive power is non-existent (cfr. Sentence, Northantonien., coram Burke: July 22, 1993, n. 11.), then a person's apparent consent is invalid.

            But, we may still ask, surely the essential rights/obligations of matrimony are not exhausted in what is involved in the three augustinian "bona"? Does there not exist, as is often affirmed, a "ius ad consortium vitae" or "ad communionem vitae", which comprises essential rights or duties which go beyond those involved in the three "bona"?

            Let me say here that I understand the view that would wish to find a broader derivation than merely the three "bona", for the essential rights/obligations of marriage, and sympathize too with the desire to find such a (new and autonomous) source in this sense, either in the "consortium totius vitae" mentioned in c. 1055 § 1, or in the "community of life and love" of Gaudium et Spes. But it seems to me that once one tries to investigate this line of thought and to establish the necessary juridic basis, one runs into serious difficulties.

The right to the "consortium" or "communitas" of life

            In effect, the "consortium totius vitae", however traditional as a description of marriage, offers little by way of defining it, unless one qualifies the "consortium" or the "life" in question with the adjective "conjugal". A homosexual "consortium" for the whole of life could exist, and yet would not constitute marriage. What is essential in the "consortium" which c. 1055, § 1 speaks of, is conjugality; and what is essential in conjugality is covered by the "bona". It is, in other words, the "bona" that make the "consortium" conjugal.

            So, if an incapacity for establishing the "consortium totius vitae [coniugalis]" undoubtedly vitiates the object of matrimonial consent, this, subjected to a juridic analysis, simply means that there must be a capacity for the acceptance of marriage (with which, we repeat, the "consortium totius vitae" is synonymous), in those features which characterize its essence, i.e. the three "bona", for in these are expressed the absolutely necessary characteristics of the "one lot" (the "con-sors") that the spouses share, and must be capable and ready to share.

            The expression "ius ad communionem vitae" is still to be found in rotal Sentences, but less frequently than in the past decades. A consensus would seem to be emerging that it is not a new or autonomous right, with a distinctive content of its own that can be specified in positive terms. Among others, the following remarks seem very pertinent: "As regards [the right to] the communion of life, it is not easy to pinpoint the essential root of such a communion, distinguishing it from those elements which are simply accidental or integral to the consortium, in such a way that it can be considered it an autonomous and independent figure" (c. De Lanversin, July 18, 1985: R.R.Dec., vol. 77, p. 381). "When at times it has pondered the right to the communion of life, as the object of matrimonial consent, rotal jurisprudence has correctly noted that it is not possible to determine the sufficient and necessary elements of this right in a positive and theoretical way" (c. Pompedda, Jan. 30, 1989: vol. 81, p. 85; cfr. an observation of the same rotal Judge: "we readily acknowledge that a clear notion of the substance of this communion of life has not yet been provided": April 11, 1988: R.R.Dec., vol. 80, p. 200).

            Little seems to vary in the critique if one suggests that the object of matrimonial consent, along with the essential obligations it gives rise to, should be derived from the concept of the "community of life [and love]" or from the "communion of persons" that Gaudium et Spes uses to describe marriage (nos. 48; 12).

            The rotal decision coram Anné of February 25, 1969 suggested that the object of matrimonial consent should include not only the "ius in corpus" (he of course was writing under the old Code), but also a further essential right - the "ius ad intimam personarum atque operum coniunctionem" (R.R.Dec., vol. 61, p. 183.). The proposal, subjected to proper analysis, appears to lack substance, for the very reason just given in speaking of the "consortium". A right to "communion of life", in our context, can only mean a right to the communion of conjugal life. Then however Anné's proposal simply signifies that consent to marriage originates a right to married life, which is obvious and adds nothing to our knowledge. It is hard to discover any autonomous entity to the proposed right, or to see how its recognition could mark any real advance in the juridic understanding of the object of marriage consent.

            The subsequent history of the "right", as proposed by Anné, would seem to bear this out. Especially in the '70s and early '80s, certain jurisprudential and canonical trends strongly proposed the right to "communion of life" or to "the intimate communion of persons", as a new and essential right of matrimony, and pressed vigorously for its incorporation into the revised Code of Canon Law. The debate was marked by the notable Sentence of the Apostolic Signatura, of Nov. 29, 1975. The special Turnus of five Cardinals (with Cardinal Staffa as Ponens) went into a lengthy examination of the notion of the "ius ad communionem vitae", and concluded that it essentially signifies the "ius ad individuam unitatem vitae sexualis" (cfr. Periodica, 66 (1977), p. 310); i.e. the right to exclusiveness in the unitive aspect of sexual life. Thus it adds nothing to the rights involved in the "bona", particularly the "bonum fidei" and the "bonum prolis".

            Despite the Signatura Sentence, the proposed "ius" was at one stage actually included in a draft canon for the revised Code. Nevertheless, it was finally dropped because, as appears from the minutes of the Pontifical Commission charged with the revision, it was considered to be equivalent to "matrimonium ipsum" and therefore redundant (cfr. Communicationes, 1977, p. 374; 1983, pp. 233-234.). In other words, the "ius ad communionem vitae" simply means a "ius ad matrimonium" [1]. Jurists appear to be accepting the logic of this, for it is rarer nowadays to find the "ius" seriously put forward as having any independent entity.

            Any possible "ius ad consortium vitae", "ius ad vitae communionem", "ius ad relationem interpersonalem", or "ius ad amorem", all suffer from the same lack of specification. In each case, it is to conjugal "consortium", to conjugal communion, to conjugal interpersonality, to conjugal love, that one has to refer. Only if we specify what is essential and constitutive to conjugality, can we begin an accurate and useful analysis of these possible rights.

The difficult task

            A "right" to a "communion of life" is as appealing as it is broad and vague. For practical juridic purposes, it appears pointless to propose such a right as "essential" or "constitutive" to matrimony, unless one clearly specifies its content. This has always been the trouble. The undoubted attractiveness of the concept could never make up for its equally undoubted vagueness. In practice all attempts to give it solid juridic body seem to have ended in failure.

            Msgr. Anné himself, in his 1969 Sentence, described as an "onus difficillimum" the task of defining precisely what is juridically necessary for this "communio vitae": "it is a most difficult task to accurately and exhaustively define and explain what - from the juridic point of view - is required for the substance of this 'relationship and communion of life'..." (loc. cit. p. 184). This point was later taken up in a Decision of the Apostolic Signatura of Oct. 17, 1972. Having expressed serious doubts whether the "ius ad communionem vitae" could be regarded as constitutive of marriage independently of the rights involved in the three "bona", the Decision went on: "But even if the right and duty regarding communion of life were proper to marriage - as a right/duty different to those represented by the three matrimonial goods - a very precise definition would be required of the elements that constitute this right/duty; and this is something that has not yet been achieved by doctrine or jurisprudence" (Periodica 62 (1973), p. 579).

            It is true that some authors, undismayed by this "dificillimum" task, have not hesitated to make a list of the elements which they consider essential for the "communio vitae", suggesting that matrimonial consent gives a strict right to each of these in such a way that the person incapable of living or giving any of them is incapable of true and valid consent. Elements suggested include: "Oblatory love"; "Responsibility in establishing conjugal friendship"; "Maturity of personal conduct throughout the ordinary events of daily life"; "Stability of conduct and capability of adapting to circumstances"; "Gentleness and kindness of character and manners in mutual relationships", etc. (The Signatura Sentence of Nov. 29, 1975 criticised the inadequacy of these suggestions (cfr. Periodica, 66 (1977), pp. 312-313); as did the rotal Sentence coram Raad, quoted earlier: R.R.Dec., vol. 67 (1975), p. 244-245).

            It is clear that elements such as these are highly desirable in married life, and their presence contributes greatly to its success and happiness, just as their absence can lead to married unhappiness and failure. It is also clear that the person who is in stable possession of these qualities has attained a high degree of psychological maturity. But the question is: are only those who have attained such a degree of psychological development capable of valid matrimonial consent? In other words, does consent confer a juridic and constitutive right to find such overall maturity in one's partner? If it did, very few marriages could be held valid. Here it is very easy to fall into the mistake which the Pope, in his 1988 Address to the Rota, warned against - of judging "in reference not to the minimum capacity which is sufficient for valid consent, but to the ideal of that full maturity which so influences the happiness of married life" (AAS 80 (1988), 1183.).

            Any true anthropological view of matrimony (and not just a christian view alone) surely sees marriage more as a point of departure than as a point of arrival. The maturity required for valid consent is properly that of those who are setting out on adult life, not of those who have already reached the ideal term of human growth. As we read in the Sentence coram Pompedda of July 3, 1979, quoted earlier: "Marriage cannot be considered as the crowning of maturity already acquired, but rather as a step in the process by which fuller maturity is to be attained" (loc. cit.). Canon 1095 speaks of (grave) lack of discretion, not of (simple) lack of maturity; and I feel we should carefully note the difference.

            In any case, and to conclude with the "ius ad communionem vitae", it seems that more than twenty years after the Signatura Decision quoted above, neither doctrine nor jurisprudence have managed to give any acceptable explanation of how this right has an autonomous entity of its own, or to show how it includes some element essential to matrimony which is not already covered by the three "bona".


            Grave lack of discretion and "incapacitas assumendi" are both referred by c. 1095 to the essential obligations of matrimony. They are to be measured, therefore, in relation to the institution of marriage, and not to the particular spouse whom a person chooses. Some acceptable juridic standards can be established for measuring capacity to appreciate or to assume the "per se" obligations of marriage. None can be established for measuring the capacity of one person to make a wise choice of a particular partner, or to be able to live married life successfully with him or her. Tribunals can reasonably be asked to judge person-to-institution capacity for, although the task is certainly delicate, the points which mainly guide their consideration are, on the one hand, the constants of human nature and, on the other, the essentials of the most natural of human institutions; in other words, objective elements provide the principal basis for their judgment (cfr. c. Pompedda, Feb. 19, 1982, R.R.Dec., vol. 74, p. 90, n. 9.). They cannot be reasonably asked to judge person-to-person capacity, for then all the elements involved are subjective (cfr. C. Burke, "Some reflections on canon 1095": Monitor Ecclesiasticus 117 (1992-I), p. 142.).

            While I hold that the personalist understanding of marriage offered especially by Vatican II and the present Pope, is immensely enriching (also for the canonist), I am not so sure to what extent "interpersonal" theories enable us to make a deeper juridic analysis of the matrimonial institution. Interpersonal relations, after all, are constant and habitual in human society. When they are characterized by affection or love, as in the case of purely human friendship or also, on a more supernatural plane, of religious life, they allow for many degrees of "union" or "communion" of life. Marriage offers a unique form of such communion. However, it is evidently not interpersonality so much as conjugality which characterizes matrimony, and which must be taken as the criterion for the specification of essential matrimonial rights. Therefore when one states that marriage is by definition an interpersonal relationship, one is stating the obvious, but not the specific. Moreover, one may be in danger of subordinating conjugality to interpersonality, and of thus being led to adopt mistaken criteria for determining what a person who marries is essentially bound to.

            The point is worth emphasizing. It is not so much the interpersonality but the conjugality of the relationship, that has to be subjected to juridic analysis. If this is not adequately done, a phrase such as "the right to an essential interpersonal relationship" remains so vague as to be virtually meaningless.

Relative incapacity

            As applied to marriage, the "interpersonal" theories tend to place the accent on the reciprocal capacity of the spouses to adapt to each another. One easily goes on from this to develop the idea of "relative incapacity", and to postulate compatibility of temperament or character as a requisite for valid consent.

            One has a right, when marrying, to find certain essential capacities in one's partner (capacity for a faithful one-spouse relationship, for instance); but one cannot posit a right to particular qualities of temperament or disposition. Otherwise one ends by making the validity of marriage depend on the capacity for an easy and harmonious relationship, And so one arrives at "relative incapacity", as did one Tribunal in judging that the Respondent "lacked the dynamics of that harmonious and viable interpersonal relationship which is an essential component of the "consortium omnis vitae"; or another, on the grounds that she did not possess "l'aptitude a écouter l'autre, à se dévouer a lui, à le respecter, à lui montrer un minimum d'"affectus maritalis", etc... et enfin à se conduire en adulte cohérent et responsable, en particulier devant les difficultés concrètes de la vie de couple et de parent".

            To my mind the theory of relative incapacity should also be judged in the light of the common pastoral experience that many highly "integrated" marriages are between couples with extremely diverse and even apparently opposed characters, who could well have ended up "incompatible" unless they had resolved (in an evidently maturing effort) not to do so (which also underlines that one cannot resolve the "bonum coniugum" into a question of natural compatibility, nor can one hold that seeming "incompatibility" is necessarily an enemy of the good of the spouses.).

            Msgr. Serrano has been the main proponent of the theory of relative incapacity at the rotal level. In line with the thesis that marriage is essentially an interpersonal affair, he holds that in order to determine capacity, it is not enough to examine the personalities of the parties, each in isolation. One must primarily examine their personalities in mutual interaction; only such an analisis allows one to judge their capacity for establishing the interpersonal relationship essential to marriage.

            I find no solid basis in law, or in christian theology or anthropology, to justify this theory. Msgr. Serrano himself, referring again to the theory in a Judgment of May 26 1988, cites only some opinions of Msgr. Pinto in support (R.R.Dec., vol. 80, p. 359.) The view is not in fact accepted in the mainstream of rotal jurisprudence [Sentences which reject the concept include: c. Raad, Apr. 14, 1975 (vol. 69, p. 260); c. Di Felice, Nov. 12, 1977 (vol. 69, p. 453); c. Lefebvre, Feb. 4, 1978; c. Agustoni, Feb 20, 1979; c. Parisella, March 15, 1979; c. Bruno, Feb. 22, 1980 (vol. 72, p. 127); c. Fiore, May 27, 1981 (vol. 73, pp. 314-317); c. Pompedda, Feb. 19, 1982 (vol. 74, p. 90); c. Egan, July 19, 1984 (vol. 76, p. 471); c. Stankiewicz, Oct. 24, 1985, (vol. 77, pp. 448ss); c. Ragni, May 24, 1988, n. 5; c. Burke, July 22, 1991 (vol. 83, p. 503) and, in greater detail, Oct. 27, 1994; etc.]. Msgr. Mario F. Pompedda, after studying the matter, comes to a clear and judicious opinion: "I must conclude and hold that to this point in time, a juridic foundation for such a "relative" incapacity has not been proven" (Incapacity for Marriage: Jurisprudence and Interpretation, op. cit. p. 206.).

            As is clear from c. 1095, consensual incapacity is incapacity relative to the objective rights/obligations of marriage in their juridic essence. It is incapacity regarding marriage considered essentially, in itself; not existentially, insofar as concerns the concrete partner chosen [2]. The point must be insisted upon: consensual incapacity relates to marriage, not to spouse; it is person-to-institution incapacity, not person-to-person incapacity.

            In a recent article, Msgr. Serrano maintains that the interpersonal conjugal relationship is ontologically prior to the qualities or properties - the "bona" - which qualify it; therefore, if interpersonality is lacking, it makes no sense to speak of the "bona", since one cannot predicate properties of a non-existing thing ("La consideración existencial del matrimonio en las causas canónicas de nulidad por incapacidad psíquica" Angelicum, vol. 48 (1991), p. 177.). I would see the matter the other way round. The conjugal interpersonal relationship has no autonomous existence independently of the "bona"; nor can one properly speak of the relationship being prior to them or existing "first"; for it is the "bona" which define it and give it substance. So true is this, that the absence or exclusion of any one of the "bona" (e.g. in the case of simulation) makes the establishment of the conjugal relationship impossible. Without the "bona", in other words, it makes no sense to speak of the conjugal interpersonal relationship, for it cannot exist.


[1] A Sentence of Jan. 31, 1976 coram Lefebvre, maintains that the "ius ad vitae communionem" "is not in fact independent from the right to the conjugal act with its essential properties, but more properly signifies and indicates all of these in the context of what that right embraces, i.e. the ordination to offspring, perpetuity, and exclusiveness" ("non est quid independens a iure ad coniugalem actum cum eius essentialibus proprietatibus, sed rectius significat seu denotat ista omnia ratione habita eorum quae illud complectantur scilicet ordinationis ad prolem, perpetuitatis et exclusivitatis"): R.R.Dec., vol. 68, p. 39. According to Egan, it is juridically absured to hold that by matrimonial consent one confers a "ius ad matrimonium": cfr. Sent. July 19, 1984 (vol. 76, p. 471).

[2] Msgr. Pinto claims that the discretion necessary for validity means deliberation about the essential rights/obligations "non in abstracto sed in casu concreto considerata" (Nov. 22, 1985: vol. 77, p. 538). This does not seem logical to me. Imprudence or irresponsibility in marrying a particular person cannot be raised to the level of an invalidating lack of discretion about the essential obligations of marriage. cfr. c. Colagiovanni, Dec. 11, 1985 (vol. 77, p. 571).