Alcohol and Drug Dependence


Fr. Augustine Mendonca

Since 1983, five sentences have been published by the Rota which deal specifically with cases involving alcohol (3) and drug (2) dependence. In two of alcohol dependence cases, there is also consideration of depressive neurosis and gambling. Authors of these sentences seem to make a conscious effort to draw relevant information from North American clinical or psychiatric sources. Nevertheless, the approaches adopted by them in analyzing the clinical data and juridic impact are distinctly different. These approaches make these sentences more interesting and informative
on the issues under consideration.

On November 19, 1983, a case from Roermond, Holland, was judged coram De Lanversin at the Rota. The background of this case is of some procedural importance. It seems the petition was in fact submitted without specification of any grounds of nullity, but the tribunal of first instance of Roermond in its sentence of May 11, 1976, pronounced an affirmative decision on a very nebulous caput amounting to “relative incapacity” on petitioner’s (woman) part, and probably “absolute incapacity” on respondent’s part “to establish a marital community or to realize the essential responsibilities flowing therefrom.” Since nobody appealed against the affirmative decision, the Ordinary permitted the woman to remarry in the Church. But somehow the case reported to the Signature which remanded it to the Rota for a second instance hearing. The Rotal decision of November 15, 1980 was negative . This present sentence of De Lanversin represents an affirmative decision on the basis of lack of discretion of judgment on respondent’s part due to “chromic alcoholism.”

In the in iure section of his sentence De Lenversin deals at length with two main issues, namely one’s incapacity to elicit valid matrimonial consent and the psychic source of that incapacity i.e., chronic alcoholism.

He says that true matrimonial consent demands not only the use of reason, whether habitual or actual, but also discretion of judgment “which is the power to judge and reason, and to put together the judgments in order to deduce logically therefrom a new judgment. Therefore, they are considered incapable of contracting marriage” who suffer from grave lack of discretion of judgment concerning essential matrimonial rights and duties which are to be mutually given and accepted” (Can. 1095,2°). In regard to discretion of judgment itself, De Lanversin quoting Jarawan says:

Discretion of judgment, however, proportionate to matrimonial consent implies the capacity, through the exercise of cognoscitive and critical faculty, to weigh the special nature and force of the matrimonial contract, that is, to reason, to estimate, to judge and to deliberate about contracting marriage.

The defect of discretion of judgment, however, must concern the rights and duties of marriage to be exchanged in the very act of matrimonial consent. Therefore, the revised Code contains also another defect which concerns the capacity to assume the essential obligations of marriage which comprise, besides the perpetual and exclusive right to the body, also the right to partnership of life, this is community of matrimonial life with its corresponding obligations. It is quite possible that a person may be fully capable of understanding and truly wanting to contract marriage, but may at the same time be incapable of fulfilling that which he or she sincerely promises. Therefore, De Lanversin says:

Since a person cannot promise something which is beyond his or her power, that person’s will to marry is rendered empty and inefficacious due to the preliminary incapacity of consent which impedes one from assuming conjugal obligations, and it eliminates particularly the very possibility of establishing the “interpersonal” relationship between the subject of matrimonial covenant.

The capacity to consent presupposes intrinsic harmony between different elements of personality, namely affect, intellect, will etc. Any psychic cause disturbing this harmony seriously can give rise to lack of discretion of judgment proportionate to marriage. Among the psychological disorders which can affect a person’s capacity to elicit true matrimonial consent, De Lanversin acknowledges “chronic alcoholism”:

In the same way, to the extent the harmonious organization and unity between superior faculties of the contractant is disturbed, true incapacity to elicit valid matrimonial consent can occur when the person is affected by chronic alcoholism as taught by the consenting voice of Our Tribunal.

De Lanversin goes on to say that chronic alcoholism is distinct from “simple drunkenness” or “acute alcohol intoxication” in the latter, generally there is only transitory psychic disturbance, whereas chronic alcoholism entails a habitual psychic condition in which there are permanent somatic (physical) as well as psychological changes caused by prolonged abuse of alcohol. Therefore, chronic alcoholism, as an abnormal psychic condition, can have destructive influence in the formation of matrimonial consent. The principal symptoms of chronic alcoholism include disturbance and regression in affect; serious mood changes, egocentrism, weakened sense of morality and responsibility,distortion of intellectual functions especially of critical faculty, memory and perception because of tension and egocentric behaviour. Besides these symptoms, one’s capacity for interpersonal relations is also seriously affected. Similarly, the activity of the will, that is, motivation is also rendered inefficacious.

In order to establish the incapacity caused by chronic alcoholism, De Lanversin suggests the use of Jelinek’s classification of different species of alcoholism. He describes briefly the five prominent species of alcoholism. His description, however, is taken from secondary sources. Since he draws his juridic conclusions from the nature of these different species of alcoholism, it is important that we have a brief explanation of each.

In his classic book: The Disease Concept to Alcoholism, Jellinek designates several species of alcoholism by letters of the Greek alphabet.

Alpha alcoholism represents a purely psychological continual dependence or reliance upon the effect of alcohol to relieve bodily or emotional pain. The drinking is undisciplined, but does not lead to “loss of control” or “inability to abstain” the damage caused by this species of alcoholism is usually restricted to disturbance in interpersonal relations, family budget, and occasional absenteeism from work, etc. There are no signs of progressive process. Pathological conditions, such as serious personality or affective (mood) disorders may underlie the problems the person may be seeking relief from through alcohol. Jellinek rules our Alpha alcoholism as a disease per se because he considers it more as a symptom of an underlying disturbance. It may develop into Gamma alcoholism.

Beta alcoholism is characterized by such alcoholic complications as polyneuropathy, gastritis, and cirrhosis of the liver without either physical or psychological dependence on alcohol. Heavy drinking, characteristic of this species of alcoholism, causes nutritional deficiency diseases, problems in interpersonal relations, family life, employment, etc. Usually there are no withdrawal symptoms. But it can develop into Gamma or Delta alcoholism. Jellinek does not consider this form of alcoholism per se a disease nor even as a symptom, unless the consequences of excessive drinking are interpreted as diseases.

Gamma alcoholism is identified by the following characteristics: 1) acquired increased tissue tolerance to alcohol; 2) adaptive cell metabolism; 3) withdrawal symptoms and “craving”, i.e. physical dependence, and 4) loss of control. In this alcoholism there is definite progression from psychogical to physical dependence and marked behaviour changes. Jellinek maintains that Gamma alcoholism produces the greatest and most serious kinds of damage to interpersonal relations, health in general and financial and social standing. This alcoholism Jellinek thinks, is a disease because of radical physio-pyschic changes caused by it.

Delta alcoholism manifests, besides the first three characteristics of Gamma alcoholism, an inability to abstain. In contrast to Gamma alcoholism, there is no ability to “go on the water wagon” for even a day or two without the manifestation of withdrawal symptoms; the ability to control the amount of intake on any given occasion, however, remains intact. It seems an alcoholic afflicted with his species of alcoholism does not go through the distressing social and psychological experiences of the Gama alcoholic and manifests only a few of the behavior changes of the latter. According to Jellinek, Delta alcoholism may come into consideration as a disease, since it is the adaption of cell metabolism, and acquired tissue tolerance and withdrawal symptoms, which bring about “craving” and loss of control or inability to abstain.

Epsilon alcoholism, also called periodic alcoholism, which in Europe and Latin America is still designated as “dipsomania”, is characterized by periodic bouts of acute alcoholism with long periods of sobriety. Lellinek refuses “describe or define” this species since, as he says, it seems to be the least known species of alcoholism. He also maintains that it cannot be confirmed with any degree of certainty whether this type of alcoholism is a disease per se or only a symptom of an underlying disease.

While describing these species of alcoholism De Lanversin suggests that in Gamma and Delta alcoholism persons afflicted by them are deprived of the capacity for self-control which implies lack of capacity for self-determination or internal freedom to choose (liberum arbitrium). Then he presents a list of symptoms which are indicative of chronic alcoholism. He says that it is important to weigh the gravity of psychic changes occurring in chronic alcoholism and reiterates the criteria for assessing the psychic capacity of the person suffering from the disease (morbo affecti) to
elicit valid matrimonial consent. These criteria are:

  1. First of all full proof of lack of discretion of judgment to contract marriage is admitted whenever either the five criteria, namely the duration; severity of the toxic process, manifest signs of insanity (amential), commitment to mental hospital and moral anesthesia; or at least majority of these, or even some of these in the presence of qualified signs such as delusion and hallucinations.
  2. In other cases either only a presumption of defect of discretion of judgment to
    contract is admitted if there is certain diagnosis of chronic alcoholism at the
    time of marriage.

The psychic capacity of a spouse alleged to be suffering from alcoholism must be determined in each case in light of the seriousness of the affective changes of personality and the illness affecting the intellectual and volitive functions as well as the above-mentioned criteria. The focus of investigation must be the very person alleged to have been incapable of consenting to marriage. De Lanversin insists on the necessity of using expert assistance in determining both the defect of consent due to lack of discretion of judgment or incapacity to assume the essential obligations of marriage.

The evidence in this case indicated that the petitioner (woman) was indeed suffering from certain degree of “affective immaturity” with depressive tendencies. But the Rotal court declared that this was not serious enough to deprive her of the capacity to elicit valid consent. However, there was sufficient proof of respondent’s “chronic alcoholism” present at the time of contracting marriage. The medical expert consulted in this case concluded that the respondent was in fact suffering from “Chronic alcoholism” in the “critical phase”, that is, according to De Lanversin, in Gamma alcoholism. Therefore, the court’s conclusion was that the respondent lacked “internal freedom to estimate” (libertas interna aestimandi) the essential obligations of marriage. The decision therefore, was affirmative.

Ragni follows a different method in analyzing the clinical aspects of alcoholism in relationship to consent. In a case from Trento, Italy, judged at the Rota on November 26, 1985, Ragni says that the incapacity of Can. 1095 is of psychic origin. It can be purely psychic, or physio-psychic or psycho-physical. Since the juridic focus of his decision was “lack of discretion of judgment”, Ragni says:

Finally, through the full statement “they are incapable of contracting-marriage, who suffer from grave lack of discretion of judgment concerning essential matrimonial rights and duties which are to be mutually given and accepted”, the author of the law sanctions a specific incapacity (flowing from a serious psychic defect which hinders discretion of judgment). This defect does not impede the person already engaged from assuming or fulfilling the essential matrimonial rights and duties,
rather it hinders the contractant from understanding with sufficient knowledge and awareness, and taking n, with right spirit and determination, the essential matrimonial rights and duties” for entire conjugal life.

Matrimonial consent, Ragni says, is a human act, of intellect and will. Of its very nature, to be valid it must be elicited with critical knowledge (not merely abstract) and free and efficient will (endowed, at the time of exchanging consent, with the capacity to actualize the rights and duties of marriage). It is evident, therefore that if the intellect or will are impeded in their natural capacity to function due to some serious disturbance of mind proportionally serious, and the consent will be invalid. Ragni describes discretion of judgment as follows:

Discretion of judgment is defined as the capacity in a person to effect the psychic process by which, supposing the presence of sufficient knowledge, the intellect deliberates on the essential obligations which are to be assumed and fulfilled through personal capacity in actual life so that once the choice of marriage is freely made the contractant is able to bind self to those obligations. Discretion of judgment proportion of judgment proportionate to marriage is lacking if the contractant does not have the capacity to effect, due to defect impeding the exercise of the intellect and will, the necessary psychic process to consider matrimonial consent. This occurs when psychic anomalies seriously disturb intellectual and volitive faculties.

As one can see, the focus of Ragni here is on the dynamic aspect of discretion of judgment. He sees it in terms of one’s psychic capacity to deliberate and freely choose marriage. The process involved in deliberating and choosing the essential conjugal duties can be seriously affected by chronic alcoholism. Thus he says: “Chronic alcoholism, which is present at the time of celebrating marriage and has its destructive influence on the manifestation of consent, must be considered as one of the above-mentioned psychic anomalies”. Then Ragni describes the essential clinical features of “acute intoxication” and “chronic intoxication”. Then he quotes extensively from DSM-III (pp. 101-102) providing the information on Organic Brain Syndrome and Organic Mental Disorder. His discussion on this subject implies that “chronic alcoholism” is not purely psychological disorder. His discussion on this subject implies that “chronic alcoholism” is not purely psychological disorder. His discussion on this subject implies that “chronic alcoholism” is not purely psychological disorder, rather a psychological disorder with an organic or neurological basis. Chronic alcoholism effects in the person affected by it a radical change in affect and personality so that such person is incapable of assessing the reality of a situation correctly and of establishing interpersonal relations. The basic juridic principle stated by Ragni reads:

Therefore, Rotal jurisprudence considers, under the rubric of “lack of discretion of judgment proportionate to marriage, the physical and psychic or psycho-physical defects which impede the necessary process of intellectual and volitive faculties necessary to formulate a practical judgment by which a person deliberates o the course of action he or she should take, or to consolidate the very choice concerning matrimonial consent.

After weighing critically the evidence presented in the case, the Rotal court concluded: “Therefore, we judges of the superior Rotal Turnus are certain that the acts provide definite signs in the man of lack of critical faculty, this is, of intellect and will, and lack of sense of morality concerning sexual crimes perpetrated by him which are characteristic of alcoholism or a serious degree rooted in him prior to marriage and this, being chronic, was present with all its consequences in the act of consent”. The decision, therefore, was affirmative.

In his sentence of May 30, 1986 dealing with a case from Hexam-Newcastle, England, Pinto examines the effect of alcoholism and gambling habits on matrimonial consent. It was alleged in this case that the respondent (man) was addicted to alcohol and gambling even before the marriage, and therefore incapable of contracting marriage for reason of lack of discretion of judgment and incapacity to assume the essential obligations of marriage. The first instance decision was negative on both grounds which was overturned by the appeal tribunal of Liverpool, which pronounced affirmatively on incapacity to assume ground but negatively on lack of discretion of judgment. A request to have the case judged I third instance by a local tribunal was rejected by the Signatura, and the case was submitted to the Rota. The Dean of the Rota had to sanate all the acts of the case before assigning it to the Rotal turnus since they were invalid due to lack of any intervention by the notary or defender of the bond during all depositions. This sentence by Pinto represents a negative decision.

First Pinto outlines the basic juridic principle applicable to “incapacity to assume the essentially obligations of marriage”. These principles are:

  • The norm of Can. 1095, 3° is of natural law, and therefore, applicable to marriages contracted even before the revised Code came into effect.
  • The essential obligations of marriage are those which concern either the good of spouses and good of offspring to which the conjugal partnership is ordered by its very nature (Can. 1055, §1) or unity and indissolubility which are the essential properties of marriage (Can. 1056).
  • A contractant who cannot fulfill an obligation cannot assume it, as it is impossible either physically or at least morally (great difficulty), unless in the latter case he or she expressly whishes to oblige self.
  • The impossibility must arise, not from an anatomical or physical cause, but from a cause o a psychic nature, Psychosis, neurosis, personality disturbance, psychosexual abnormalities, depraved habit of drunkenness or gambling.
  • The incapacity must exist at the moment of exchanging consent from which the bond arises. Subsequently incapacity does not affect the validity unless it emerges from cause already resent in actu primo proximo at the moment of celebration of marriage,, from a personality disturbance or from an already acquired depraved habit. The incapacity which arises from causes subsequent to the celebration of marriage is of o juridic consequence.
  • Nor does an incapacity which can be healed within reasonable limits of time through ordinary licit means invalidate marriage because there will not be certainly inregard to true incapacity.
  • The good of spouses comprises those obligations without which it is at least morally impossible to have an intimate union of persons and tasks by which spouses offer each other mutually support and service and to which marriage is also ordered by its very nature. In the presence of grave lack of integration of persons and tasks, the communion of life, that is, partnership of conjugal life, in which marriage essentially consists (Can. 1055 §1) is impossible.

These juridic principles constitute the summary of what Pinto has written to date either in his articles or in Rotal sentences. Apart from the requirement of “perpetuity” in “incapacity to assume” cases, which is still an intensely debated issue in Rotal jurisprudence, all other principles are of much practical importance in judging nullity cases under the ground of “incapacity to assume the essential obligations of marriage”.

Then Pinto argues from the information provided in DSM-III on Alcohol Dependence (pp. 169-170) that a disorder of its kind seriously disturbs social relationships due to lack of responsibility and aggressive behaviour. A person affected by this disorder often becomes unfit to work. Treatment of this disorder generally consists of a combination of psychotherapy and medication (Antabuse and sedatives) as well as membership in Alcoholic Anonymous group.

Similarly, gambling habit has also been considered a psychiatric syndrome and is listed in DSM-III among “Disorders of Impulse Control Not Elsewhere Classified” as “Pathological Gambling”. It manifests itself in a chronic and progressive inability to resist the impulse to gamble with consequent problems and harm to the person, to his or her family and to work. As a result, such a person cannot repay debts, cannot provide for the family, gets money by illicit means; commits crimes and remains without a job and loses everything he or she has acquired. Pinto sounds very positive in regard to cure of this pathology as he says that “persons affected by this syndrome are healed by joining the so called “insight-oriented” psychotherapy. The issue of “perpetuity” or “non-curability” of the underlying pathology is an as yet unresolved legal issue, therefore it does not have to be discussed further. But, since Pinto holds the view which applies the principle of perpetuity to “incapacity to assume”, he is justified in trying to support it by citing American psychiatric sources.

It was evident in this case that the respondent was an alcoholic, a gambler, and a sort of Don Juan. Pinto rejects all arguments supporting respondent’s incapacity to assume the essential obligations of marriage and declares that those problems were the result of post-marriage factors rather than caused by serious personality disorder of the respondent present prior to contracting marriage. Therefore, the decision was negative.

A case from Rome, judged coram Colagiovanni on May 8, 1984 involved a person who was a “drug addict” the case history revealed that even prior to contracting marriage the petitioner (woman) was addicted to heavy drugs. The first instance decision was affirmative on grounds of “lack of discretion of judgment.” In his affirmative sentence Colagiovanni distinguishes between the effects of “soft” and “hard” (heavy) drugs. Among “hard” drugs he considers “heroine” as being the most potent in causing psycho-physical dependence and personality damage. He also lists several “hard” drugs and describes their effect on human personality as described in psychological and psychiatric literature. According to him, all agree that dependence on hard drugs, especially on “heroine”, induces a “state”, that is, a condition which persists even when one has abstained from taking them. Then he presents the following summary of the effects of drug dependence: a) persistence of the disturbed condition even during abstinence; b) serious disturbance in practical judgment with a break in reality contact; c) serious blockage in one’s capacity to establish interpersonal relationship with others; d) internal disturbance in the presence of normal external
appearance; e) long periods of treatment with serious relapses in the process of regaining physical and mental health. Combination of multiple drugs intensifies more the already existing psychic (mental and personality) disturbance. Then quoting directly from an article by Rotal Auditor E. Davino, Colagiovanni concludes.

In the symatology of drug dependence emerges the defect, at times very serious, or radical incapacity to establish a vital relationship and more so “the most intimate communion of life” such as marriage, either because of the obsession which disturbs or oppresses it during the period of abstinence, or because of the dulling effect which affects it including even the feelings, as a consequence of internal deterioration following repeated ingestion of drugs.

It was declared by the court that because of serious effects of drug dependence on petitioner’s mental faculties and on her personality, she could not “form and elicit” valid matrimonial consent.

A case from Buenos Aires, Argentina, judged on February 23, 1990 at the Rota coram Stankiewicz involved drug dependence (drug addiction) on the part of both spouses. At the time of marriage, the petitioner (woman) was twenty-five and the respondent (man) was eighteen years of age respectively. The drug use in fact continued in married life as well. Due to effects of the use of heavy drugs, the respondent suffered epileptic seizures and was, therefore hospitalized. Two children were born during their common life, but according to petitioner, the paternity of both children was not attributed to the respondent, rather to other men with whom she had extramarital relationships. Because of repeated violence on respondent’s part, the petitioner sought legal separation in order to recover her physical, psychological and moral sanity. Subsequently, she petitioned the marriage tribunal of Buenos Aires to declare her marriage null on the basis of “psychic incapacity to manifest valid matrimonial consent due to drug addiction on the part of both, and due to epilepsy on respondent’s part.” The respondent refused to participate in the process. The first instance decision was negative on all grounds; but the appeal tribunal of Cordoba pronounced an affirmative decision on the basis of drug addiction on the part of both.

In his affirmative sentence, Stankiewicz presents some important juridic principles applicable to cases involving drug addiction or drug dependence.

The first principle concerns the terminus or object of discretion of judgment. According to Can. 1095, 2° and jurisprudence, the terminus of discretion of judgment is the “rights and duties of marriage”. In other words, the knowledge, critical evaluation and deliberate choice concern the essential matrimonial rights. This represents a fairly restrictive approach in regard to the terminus of due discretion. Stankiewicz however, says that sufficient discretion of judgment concerns the very person of one’s partner as well as essential conjugal rights and duties. This discretion of judgment is an essential condition required by natural law itself to enter into valid matrimonial covenant. In Stankiewicz’s words:

[T]his mutual and irrevocable gifting of persons requires that each spouses have, at the time of celebrating marriage, not only sufficient use of reason, but also suitable discretion of judgment concerning the person of the partner fit for mutual giving and receiving and concerning essential conjugal rights and duties, which are also to be mutually given and accepted.

This is an essential condition for validity of the matrimonial covenant as a natural institute in the order of creation, which in the order of salvation has been raised by Christ the Lord to the dignity of a sacrament between two baptized persons (Can. 1055, §1).

The second principal touches on the subjective and objective aspects of the lack of discretion of judgment. In the subjective aspect, grave defect in discretion of judgment concerns the severity of the psychic condition of the person whose intellectual, volitive and affective (or emotional) functions are disturbed. In its objective aspect, one must consider the unrepeatable identity and dignity of the very person of the partner, and the essential consists of the good of spouses, of offspring, of fidelity and sacrament. The activity of the psychic faculties must be proportionate to these objective elements.

The third principle expresses the criterion of proportionality. This criterion consists in determining the proportion between the degree of impairment of intellectual, volitional and affective functions and material (person) and formal (rights-obligations) object of matrimonial consent. Serious lack of discretion of judgment precludes necessary perception of the distinct nature and strength of matrimonial contract “at least in regard to its substance and substantial value” in order to contract marriage with the partner.

The fourth principle determines the source of lack of discretion of judgment. According to Stankiewicz, this source includes “pathology” or age-related immaturity in the realm of intelligence, of “serious impairment of volitional faculty”. He says:

Therefore, according to jurisprudence, the concept of grave defect of discretion of judgment includes disturbances of cognoscitive, critical or estimative faculty, which impede correct understanding and proper assessment of the nature and substantial value normative of mutual giving and accepting of persons in a partnership of the whole of life, which consists of essential conjugal rights and duties. It also includes disturbances in the elective faculty which impedes internal freedom necessary to deliberate on the choice of person of the partner who is to be led into a conjugal partnership. We are dealing with psychic capacity for making a real and integral choice of an irrepeatable person of the partner with a view to form a equal marriage partnership, and not merely to make a choice to substitute certain parental or imaginary, or complementary figure; consider, for example, the exclusive purpose of acquiring a certain property of the body of the partner simply as a remedy for concupiscence without any regard for equality I conjugal rights and duties which the spouses must mutually exchange.

The process of knowing and freely choosing the person of the partner and the complex of conjugal rights and obligations undoubtedly depends o experience, knowledge, practical sense, critical reflection and value judgment, and decision-action in concrete circumstances of persons. This process can be influenced not only by subconscious or unconscious forces, but also by psychic pathology. However, “from a juridic point of view one can speak of grave lack of discretion of judgment only when it renders formation of matrimonial consent and its legitimate manifestation impossible”. How is one to measure the defect of discretion of judgment which can invalidate consent?

The fifth principle provides, what can be identified as a “functional criterion” to measure defect of discretion of judgment. Stankiewicz says that ecclesial law does not directly use the criterion of psychiatric diagnosis in measuring defect of discretion of judgment, rather it simply adopts a functional criterion to measure it insofar as the defect becomes incompatible with the essential conjugal rights and duties. In the juridic realm, this incompatibility cannot be sustained in the absence of “psychopathology” in order to cause the defect of consent.

After presenting these basic principles, Stankiewicz says that “among causes of a pathological nature which can cause grave defect of discretion of judgment, especially in our time, we can easily identify disturbances induced by the use of psychoactive substances (“according to DSM-III-R: “Psychoactive Substance Use Disorders”). The sentence contains an excellent synthesis of the clinical aspects of drug addiction. In essence, use or abuse of drug introduces drastic changes in cognitive, volitional and affective functions of the person. Because of the distinct nature of the effects of different drugs on human mind and human personality, each psychoactive drug must be carefully examined within the personal and socio-cultural context of its user.

Rotal jurisprudence has identified the juridic effects of drug use/abuse in four areas of matrimonial consent: first, “defect of sufficient use of reason” in case of acute intoxication which impedes human act; second, “grave defect of discretion of judgment due to serious impairment of the critic faculty”; third, “impairment of the elective faculty” or “internal freedom”; and fourth, “incapacity to assume the essential obligations of marriage.”

In this case, the petitioner was addicted to hard drugs by the time she was seventeen years old. She was involved in prostitution to support her drug habits. Her mother suffered from schizophrenia and her father was a drug dealer who was gunned down by security agents the same day she met the respondent. Their drug use continued. Clinical evidence clearly suggested that both were addicted to drugs. Both seem to have had serious psychological problems which presumably provided a pathological basis for their addiction. The court’s conclusion was:

Due to fatal effects of drug addiction working in their abnormal personality, both contractants truly lacked the capacity to perceive correctly, evaluate critically and deliberate on the essential conjugal rights and obligations which are to be mutually exchanged with the person of the partner.

The decision of the Rota was affirmative and both parties were prohibited from entering into a new marriage without consulting the Ordinary of the place.

Important element to be highlighted in this sentence is the focus on the “person” of contractant. More recent sentences seem to follow this line of considering concepts such as: “irrepeatable personality”, “personal dignity”, “individuality”, “equality of persons”, etc., into jurisprudence. These sentences suggest, and rightly so, that a contractant must have a sufficient “appreciation” of the “person” of the partner in making the final decision to marry. A tentative conclusion of this approach could be that it is possible to declare a marriage null if one of the contractant in fact lacked such an “appreciation” of the “person” of the partner to be chosen for establishing the partnership of the whole of life. This point definitely needs further study.

In conclusion, a distinction of much practical importance is to be made on the effects of alcohol or drug intoxication: acute intoxication and a state of dependence. Acute intoxication constitutes a temporary physio-psychic condition which can seriously affect the functional (mental) capacities of a person. Whereas, the state of dependence constitutes a progressive weakening of a person’s physio-psychic capacities which, in a chronic condition, can give rise to a habitual functional (mental) incapacity even without actual substance ingestion. In both conditions, it may be possible
to prove the presence of mental impairment amounting to lack of discretion of judgement. A person thus affected may be found to lack mental capacity to critically evaluate the subjective and objective elements of marital covenant and freely choose them. On the other hand, the habitual functional impairment of human personality caused by the chronic state may render a person incapable of establishing an intimate interpersonal relationship which is the foundation of married life, as well as incapable of fulfilling one or several essential obligations related to the good to the spouse or of children. Both incapacities are to be carefully investigated and determined in each case with the help of competent experts.


Father Augustine Mendonca,

Associate Professor – Faculty of Canon Law,

Saint Paul University, Ottawa, Ontario.