Persons Incompetent to contract Marriage

(Fr. Augustine Mendonca)


Marriage is a natural institution and, unless otherwise impeded by law, all persons have the natural right to marry. The Church upholds this fundamental right in Can. 1058 of the revised Code of Canon Law which reads: “All persons who are not prohibited by law can contract marriage”. The term “law” here implies both natural and positive law whether ecclesiastical or civil.

One of the most utilized ecclesiastical laws in marriage tribunals is contained in Can. 1095 which,  according to canonical doctrine and jurisprudence, expresses a principle of natural law. In effect, it declares that persons lacking sufficient use of reason, or due discretion of judgement concerning the rights and duties of marriage, or incapable of assuming the essential obligations of marriage for reasons of “causes of a psychic nature”, cannot contact marriage. In other words, they are  considered by ecclesiastical law as inhabiles to enter into a marital contract.

Canon 1095 has an interesting and long legal history. As an expression of natural law, it is open to further determination by canonical and interdisciplinary study and research. That is why, in his allocation to Rotal Officials on January 26, 1984, Pope John Paul II explicitly stated that Can. 1095, among other similar canons, has been formulated in a generic way to await further determination by qualified jurisprudence especially of the Rota.

Since the promulgation of the revised Code, most of the Rotal Judges have been making a conscientious effort in furthering the interpretation of the norms of Can. 1095 in the light of conciliar insights into the nature of marriage. On the theological plane, their focus of study is directed primarily to the theological developments which have been taking place in magisterial teaching on marriage. In the area of psychology/psychiatry, they are striving to integrate the clinical aspects of psychological disorders/disturbances into developing jurisprudence on the norm of Can. 1095. In this brief study we will examine the most recent approaches to the juridic principles of Can. 1095 which should help us in our understanding of some of the essential factors which contribute to a person’s incapacity to contract marriage.

2. Marriage as a Partnership of the Whole of Life

Canon 1057, §2 states that the “matrimonial consent is an act of the will by which a man and a woman, through an irrevocable covenant, mutually give and accept each other (sese) in order to establish marriage” (emphasis added). This is a pivotal canon which contains some crucial elements which must be examined very closely.

This canon declares that the consent of the spouses is the efficient cause of marriage,
and it cannot be supplied by anyone else. This consent is an act of the will of
each spouse and only when there is legitimate expression of their “will-together”
or “union of wills” to enter into a life-long marital relationship there is valid
marriage. The will-act of each spouse which constitutes consent is a human act.
An act is human when the person eliciting it is the “master” of his or her act.
A person is “master” of his or her act if it is the result of full and conscious
deliberation, which necessarily entails knowledge and critical evaluation of the
nature of the act itself as well as of its object, and free choice of that object.
Ultimately, a human act is a decision emanating from a clear and sufficiently informed
mind and a free will. In other words, it implies a conscious and free decision a
person makes.

For this will-act to be considered marital, it must be exchanged between two sexually
distinct persons, this is, between two heterosexual persons. According to biblical
and ecclesial teaching, only two heterosexual persons can enter into valid marital
union. The expression “a man and a woman” also implies that sexuality is of the
essence of marital covenant, and therefore, without the possibility of a sexual
union there cannot be marriage. The expression also signifies that the “whole person”
of each spouse is involved in this intimately personal and dual or interpersonal
act. As an act of the whole person which unites both spouses at the intimate core
of their being, it entails total self giving on the part of both persons, and therefore,
it is a personal covenant that is irrevocable.

The aspect of total self giving of persons in marriage has been beautifully expressed
by Pope John Paul II in his Apostolic Exhortation, Familiaris consortio, 11. There
he says: “As an incarnate spirit, that is a soul which expresses itself in a body
and a body informed by an immortal spirit, human being called to love in this or
her unified totality. Love includes the human body, and the body is made a sharer
in spiritual love”. He continues: “Consequently, sexuality, by means of which man
and woman give themselves to one another through the acts which are proper and exclusive
to spouses, is by no means something purely biological, but concerns the innermost
being of the human person as such. It is realized in a truly human way only if it
is an integral part of the love by which a man and woman commit themselves totally
to one another until death. The total physical self-giving would be a lie if it
were not the sing and fruit of total personal self-giving, in which the whole person,
including the temporal dimension, is present: if the person were to withhold something
or reserve the possibility of deciding otherwise in the future, by this very fact
he or she would not be giving totally”. Again, while speaking of conjugal love,
the Holy Father teaches that “conjugal love involves a totality, in which all elements
of the person enter- appeal of the body and instinct, power of feeling and affectivity,
aspiration or the spirit and of will. It aims at a deeply personal unity, the unity
that, beyond union in one flesh. Leads to forming one heart and soul; it demands
indissolubility and faithfulness in definitive mutual giving” (Familiaris consortio,
13). In other words, the act of consent involves not just the intellect and will
of the spouses, but their whole personalit8es as well.

As a deliberate act of the will, it presupposes sufficient personal knowledge of
“each other” so that the act is directed to a real and not imaginary or fictitious
person. The law expressed here requires mutual personal knowledge of each other sufficient to make a conscious and deliberate mutual
self exchange in the act of consent. Without such knowledge, a valid consent which
gives rise to a permanent covenant expressed by “until death do us apart” would
not be possible.

The purpose or goal of this will-act is to “establish marital relationship”. Mush
has been written about this point in recent years, particularly in light of Gaudium
et spes, 48, the Second Vatican Council described marriage an “intimate community
of life and conjugal love”. The document goes on to say that this “intimate community”
is by its very nature ordered to the procreation and education of the offspring
and it is in them that it finds its crowning glory. Thus the man and woman, who
‘are no longer two but one’ (Mt. 19:6), help and serve each other by their marriage
partnership; they become conscious of their unity and experience it more deeply
from day to day. The intimate union of marriage, as a mutual giving of two persons,
and the good of the children demand total fidelity from the spouses and require
an unbreakable unity between them”. The emphasis of this statement is very clear.
Marriage is presented as a personal relationship which has specific goals rooted
in its personal and social nature, that is, the good of the spouses and of offspring.
This personal relationship is one and indissoluble not only in virtue of its sacramentality
but also in virtue of these essential goods. It is from this personal, irrevocable
covenant between two sexually distinct persons flow the essential rights and obligations
which marriage partners assume in their personal marital consent. That is why the
revised Code, in Can. 1134 states that “each of the spouses has equal obligations
and rights to those things which pertain to the partnership of conjugal life”. Therefore,
the essential rights and obligations referred to in Cann.1095,2°-3° and 1101,§2
are related to the good of spouses and of children, and to the properties of unity
(exclusivity and iniquity of the bond) and indissolubility, as well as sacramental
dignity of marriage. These essential rights are obligations, as heretofore understood,
constitute the “consortium totius vitae”.

The partnership of the whole of life (consortium totius vitae) of the spouses is
established by the act of their will. Canon 1095 supposes three essential species
of capacity on the part of those who intend and will to contract marriage: the capacity
to know, to weigh and decide, and to handover and receive the object of the contract.
If one of these capacities is missing, matrimonial consent would be invalid. This
in essence is the meaning of Can. 1095. These aspects of the canon will be considered
in detail in the following sections.

3. Those who Lack Sufficient Use of Reason

The first principle of Can. 1095 expresses the criterion of “simple use of reason”.
In its long developmental history, this principle has been used by canonical doctrine
and jurisprudence as a practical criterion of a person’s ability to give matrimonial
consent. In simple terms, it meant that if a marriage was declared null on the basis
of “amential” or “insanity”, it was because of proof that one of the contractants
lacked sufficient use of reason at the time of wedding. The expression “sufficient
use of reason” was equivalent to a person’s ability to elicit a human act proportionate
to matrimonial consent. Hence persons considered incapable of eliciting a human
act were those whose rational faculties ad been seriously affected by some serious
psychic disorder or disturbance. Canonical jurisprudence identified serious mental
illness, such as serious psychosis, severe mental retardation, or serious transitory disturbances of the mind, such as alcohol or drug intoxication, serious
psychic trauma, such as sudden psychic shock, hypnosis, epileptic seizure, delirious
fever, etc. as the sources of “incapacity to form an intention” which is at the
very heart of human act. In his sentence of February 4, 1974, Pinto lists these
situations as follows.

1. Adults who have not attained the use of reason or who have seriously lost it
after having attained it. This abnormality of a quantitative order can be found
in the first case, in oligophrenia, i.e. phrenasthenia [mental retardation], and
in the second case, in dementia.

2. Adults whose use of reason is seriously disturbed. This anomaly of a qualitative
order can be found in cases of psychosis.

3. Adults habitually enjoying the use of reason who, nevertheless are impeded by
an actual disturbance of the mind.

We are dealing, therefore, with cases in which the contracting party is incapable
of eliciting a human act.

In cases of this kind, the “lack of sufficient use of reason” implies that the psychological
process involved in the formation of the human act is seriously impeded prior to
or at the level of critical judgment (deliberation). The mental impairment presupposed
to underlie this impediment would naturally deprive the person affected by it of
any possibility for meaningful deliberation concerning personal capacity for marital
commitment and the choice of the object of consent.

It must be noted that the law does not specify the source of “lack of sufficient
sue of reason”. Also the law does not indicate if this deficiency, to be canonically
effective, must be permanent or temporary. It simply implies that the presence of
the impairment of mental faculties be such that at the time of exchanging consent
the person affected by it is incapable of eliciting human act, which is matrimonial
consent. The underlying cause may be habitual, e.g., schizophrenia, or temporary,
e.g., epileptic seizure or acute alcohol intoxication; but as far as its nullifying
effect is concerned, the impairment must be present when consent is exchanged. If
the impairment is habitual, its presence at the time of consent can be presumed.
Moreover, by employing the adjective “sufficient” qualifying “use” of reason, the
law intends to relativize its role. In other words, the law does not require total
lack of reason (amentia) to invalidate consent. The lack of reason must be proportionate
to the rights and obligations of marriage. As it will be mentioned later in this
study, for all practical purposes, this canonical norm is preempted by the norm
of “lack of discretion of judgment” of paragraph two of the canon.

4. Those Who Lack Due Discretion of Judgment

Choice of any state in life in the Church presupposes sufficient human maturity
proportionate to that state. Therefore, the Church law insists on the requirement
of maturity of the human person both on the part of those who intend to embrace
consecrated life (cfr. Can. 642, 721, §1), or celibacy with perfect continence for
the sake of God’s Kingdom or marriage (cfr. Can. 1095, 1°-3°) by an irrevocable
covenant (cfr. Can. 1057,§2). In order to contact marriage, therefore, sufficient
psychological maturity which enables a person to critically perceive and freely chose marriage with all its rights
and obligations is essential. This “psychological maturity” which enables a person
to form a valid consent is expressed in law in terms of “discretion of judgment”.

In one of his recent sentences dealing with a case of alcoholism, Ragni presents
a brief philosophical and juridical analysis of Can. 1095, 2°,that is “lack of discretion
of judgment”. He says that the very introductory words of the whole canon: “incapable
of contracting marriage”, speak only of an incapacity of a psychic or physio-psychic
(or psycho-physical) nature of a person relative to the contract of marriage. The
norm requires the presence of the incapacity at the time of manifesting or exchanging
matrimonial consent ad not something which has emerge after the consent has been

The phrase: “incapable of contracting marriage… who suffer from defect of discretion
of judgment” expresses the principle that only those who are affected by a serious
defect of discretion can be considered incapable of contracting marriage because
only “by serious defect of discretion of judgment” and not by any defect of a psychic
nature a person is impeded from eliciting the human act, the very act which constitutes
matrimonial consent.

In the remaining portion of the canon: “incapable of contracting marriage… who suffers
from serious defect of discretion of judgment concerning the essential matrimonial
rights and duties”, the legislator acknowledges the relative nature of the incapacity
concerned. In other words, Ragni says that this incapacity concerns only the essential
rights and duties of marriage and not any right or duty which does not concern marriage
or which is not essential to constitute marriage. A person may be able to deliberate
and choose many other responsible occupations in life, and yet may not be able to
do so in relation to marriage because of specific nature of its rights and obligations
which bind one for life. Only in this sense the said incapacity is relative.

Finally, according to Ragni, in the full text of the canon: “incapable of contracting
marriage… who suffer from serious defect of discretion of judgement concerning the
essential matrimonial rights and duties”, the legislator sanctions a specific incapacity
flowing from a serious psychic defect which impedes discretion of judgment. This
defect deprives a person of the capacity to knowingly and consciously weigh and
assume the “essential matrimonial rights and duties” for the whole of their conjugal
life. The essential elements of this canonical norm require further analysis for
a fuller understanding of its meaning and applicability.

The word “discretion” etymologically derives from the latin word cernere which initially
meant “to cut”, “to break into pieces and sift” for the purpose of closer scrutiny,
and to have a deeper knowledge of a thing. Later it came to mean the capacity to
evaluate or to judge. In Rotal jurisprudence, the term “discretion” has finally
come to mean “maturity” and, therefore, when it is used with “judgment” as “discretion
of judgment”, it basically signifies “maturity of judgment” or simply “mature decision”
or “mature choice”. In relation to matrimonial consent, “discretion of judgment”
means “maturity of decision” to enter into a permanent and exclusive interpersonal
heterosexual relationship ordered by its very nature to the good of the spouses
and of the offspring.

In a static sense, the concept underlying “discretion of judgment” can be viewed
as consisting of three essential components. The first component is “due knowledge.”
Before a person can make any decision, e or she must have sufficient abstract knowledge
of the object of that decision. In virtue of this requirement, a person marring
must have sufficient cognitive (intellectual) knowledge of self and of the essential
rights and duties which are to be exchanged in consent. Without such knowledge one
cannot evaluate and choose the object of consent, that is, marriage.

The second component of a “mature decision” is “critical knowledge” of the object
of consent. In his decision of December 3, 1957, Felici stated that “to be able
to perform a responsible act, which can be characterized as morally, imputable,
it certainly does not suffice to be capable of exercising the cognitive faculty,
but one must exercise the critical faculty, which alone renders one capable of forming
judgments and of moving the act of the will.” According to Felici, one has to distinguish
in the hymen intellect the cognitive faculty, whose operation consists in the abstraction
of the universal from the particular, from the critical faculty, which is the power
to judge and reason, i.e., to affirm or deny something about something else, and
put together judgments so that a new judgment is formed logically from them. Therefore,
a person marrying must have critical knowledge of all that is to be consented to
in the act of matrimonial consent, that is, mutual knowledge of the spouses and
of all rights and obligations which constitute “consortium totius vitae” as stipulated
in Can. 1096. For the act of consent to be considered “mature”, the contractant
must have the capacity to compare, integrate and deduce new judgments. Integrating
these components together, Sabattani concluded: “When such maturity of judgement
sufficient to understand and to choose is lacking, whether its source is habitual
alienation of the mind or transient disturbance, or psychic debility, there is amentia
in the contractual sense.”

The third component of a “mature decision” is “internal freedom”. This is an attribute
of the will which makes that final, deliberate decision to marry and it presupposes
the presence of “critical knowledge”. It is now a common opinion in Rotal jurisprudence
that “internal psychological freedom” on the part of the will is essential to elicit
valid matrimonial consent. This component consists in the freedom on the part of
the will from immature, obsessive and overpowering ideas, fantasies, instinctual
excitations and so forth in the process of choosing the object of consent. Pompedda,
who has written eloquently and extensively on Can. 1095, presents the following
synthesis of these three components of a “mature decision” to marry:

1) sufficient cognitive knowledge: of the object, of the subject of consent;

2) sufficient critical evaluation: of the object, of the motives and of the subject
I relation to the contract;

3) sufficient internal freedom: either to evaluate the motives, that is, to deliberate,
or to control impulses or internal limitations.

This synthesis of the threefold components of “discretion of judgment” provides
some guidelines for a judge to determine the “maturity” of a person’s “decision”
to marry. A judge has to look into the “psychic condition” of the contractant(s)
on whose incapacity the nullity of a particular marriage is alleged. As jurisprudence
has consistently emphasized, “maturity of judgment” does not require critical knowledge that is exhaustive or total, not absolute freedom from inner impulses
or psychic debility. The law requires the minimum order to uphold the natural right
of each person to enter into a marital relationship.

Once the concept of “discretion of judgment” is clear in our minds to some extent,
we must look into the unit to measure it. However, as Sabattani has wisely pointed
out, the law does not provide us with a unit of measure with which a judge can identify
the presence or absence “sufficient” discretion of judgment in a consent that is
already given. In this context, the formation of the act of consent becomes the
object of judicial inquiry. This formation process involves all psychic forces,
conscious as well as unconscious, of a person. It is not impossible to identify
these forces which influence the deliberative process. According to Sabattani, a
judge must be able to identify the factors affecting the psychic faculties of the
person involved, determine their effects on consent and finally conclude therefrom
the degree or strength of the decision made.

In his sentence of February 23, 1990, Stankiewicz proposes what may be identified
as a “functional criterion”, which, in practical terms, seems to correspond to what
Sabattani has said. Stankiewicz says that ecclesial law does not directly use the
criterion of psychiatric diagnosis of a mental disorder as a unit to measure the
defect of discretion of judgment, rather it simply adopts it as a functional criterion
to measure it insofar as the defect becomes incompatible with the essential conjugal
right s and duties. In the juridic realm, according to Stankiewicz, this incompatibility
sufficient to cause the defect of consent cannot be sustained in the absence of
serious “psychopathology”. In other words, law and jurisprudence determine the elements
of discretion of judgment, i.e., knowledge and capacity for critical evaluation,
and internal freedom to choose the object of consent, and this capacity must be
proportionate to the right and obligations to be assumed in consent. Hence, defect
of discretion of judgment is measured in terms of the functional impairment which
may be caused in a particular case by a mental disorder or disturbance. The severity
of the disorder or psychopathology must be such that it engenders serious functional
impairment of the faculties involved in forming the ultimate decision to marry.
All three elements, namely the capacity for the decision to marry, functional impairment
caused by a psychic disorder, and the seriousness of the rights and duties of marriage
are to be weighed in relationship to each other. Therefore, the principle of “functional
criterion” implies that the moral certainty required to pronounce a decision concerns
the actual absence of sufficient discretion of judgment which can be arrived at
only through a careful analysis of the psychic condition of the person concerned.
It is in the assessment of the dynamic process underlying the act of marital consent
that an expert can make valuable contribution to a judge’s decision concerning its
validity or invalidity.

Canonical doctrine and jurisprudence have established that a person’s “discretion
of judgment” (“maturity of decision”) may be impeded by an impairment of mental
faculties, serious, habitual (congenital or acquired) or transitory. A habitual
impairment would be present in many serous “psychic disorders” or in certain degrees
of mental retardation. Generally, in such situations, a person is considered to
be incapable of making a critical evaluation of the subject as well as the object
of consent. The neurotic disorders are being regarded by jurisprudence as affecting
directly the functioning of the ill thereby impeding the intrinsic psychological
freedom to make a practical and self reflective judgment and a free choice. In his
sentence of December 18, 1986, Stankiewicz says: “There are persons who are very intelligent in the speculative order, but suffer from profound feelings of
ambivalence and obsessions. Hysterics, homosexuals and perverts, are often endowed
with above average intellect but a natter of psychological maturity which consists
in one’s capacity to make judgments concerning persons or real things, and not imaginary
things in which most neurotics and psychotics live seeking refuge in a world of
imagination, dreams or delirium.

The effect of personality disorders on matrimonial consent have been assessed differently
by Rotal judges. Some judges designate the defect in the sphere of critical faculty,
i.e., within the intellect especially in the act of deliberation, while others locate
the defect in the sphere of choice, i.e., within the will, in terms of loss of psychological
freedom. In other words, personality disorders may seriously affect the act of consent
either by a serious defect in the critical faculty or in the volitive (will) faulty.
In either case, the end result is the same, that is, vitiation of the deliberate
choice to marry. In this regard, the practical wisdom offered by Lefebvre can be
greatly useful. He says: “First of all intellect and will cannot be separated, and
much less can the defect of knowledge and of freedom, that is, of the will, can
be separately defined. Therefore, it cannot be determined a priori when the judge
should examine someone’s intellective capacity alone, and when he should investigate
the volitive capacity.” The focus must be on the “functional capacity” for decision-making
of the total human person.

The effects of transitory impairment of mental faculties are explained by Ragni
in a recent sentence involving premarital pregnancy. In this case, the Rota required
an expertise specifically focused on the psychological effects of premarital pregnancy
on a woman’s mental state. It asked the expert “if the women in question was suffering
from psychoneurosis or from some other pathological syndrome related to pregnancy
or her pregnancy was just normal.” In his sentence Ragni explains that discretion
is the capacity to effect the psychic processes by which the intellect deliberated
on its capacity to fulfill the obligations of marriage so that the will on its part
can freely bind itself to those obligations. If a person cannot put n motion the
process of deliberation to form matrimonial consent due to some defect in is or
her personality, there cannot be a valid consent. Serious psychic or psychosexual
anomaly present at the time of exchanging consent can seriously impede one from
giving valid consent. But it is important to prove the connection between such an
anomaly and consent at the time of giving consent. It must be noted that not only
defect of one’s mental equilibrium or maturity is sufficient to cause the nullity
of marriage; only that defect which renders a person incapable of free election
or of assuming the essential obligations of marriage (tria bona) can nullify consent.

Among psychic incapacities one can identify “psychological disorders” which can
block the capacity to make a mature decision. A traumatic event, such as pregnancy,
can induce such disorders. In some cases stress-related experiences can create serious
mental and emotional disturbances. One does not have to suffer form a mental illness
or serious personality disorder in order to be incapable of eliciting matrimonial
consent. The petitioner in the case under consideration had suffered serious stress-related
problems as a result to premarital pregnancy. The decision was affirmative. The
same argument is applicable t cases involving transitory disturbances of the mind
due to, for example, alcohol or drug intoxication, epileptic attack, etc. but in
each case the focus is on the actual effects of the disturbance on mental faculties.

Rotal jurisprudence clearly admits that “flawed decisional process” leading to lack
of sufficient discretion of judgment can be caused also by “non-psychopathological”
factors. This is evident in a sentence of March 20, 1985 by Davino. The case in
question concerned a young adult who was, at the time of contracting marriage, an
avowed “hippy”. The basis for the allegation of lack of discretion of judgment in
the absence of any “psychopathology” was is “deep-rooted” beliefs contrary to the
nature of Christian marriage. In his sentence, Davino says that matrimonial consent
as a human act flows from the physio-psychic substrate of the human person. Therefore,
if this foundation of human action is disturbed by a serious anomaly, the faculties
involved in eliciting that action will be disturbed as well. This will in effect
deprive the person thus affected of self-determination and freedom. Such a disturbance
does not have to arise solely from a so-called “mental disorder.” There can be other
“psychic conditions” or “mental disturbances,” even transient ones, which can limit
the capacity to contract marriage. This can happen in the life of those who consciously
choose t live a marginal life without any intention of assuming a more cultured
form of life. With regard to the source of incapacity of the person in question
to make a mature decision, Davino says: “here we are not dealing with an incapacity
caused by illness (disorder), but with a defect arising from a distortion of mind
and spirit which somehow so penetrated his whole personality that it completely
undermined his behaviour.” In concluding his sentence, e says: “According to the
opinion of the Fathers, this sentence presents the clearest example of a deliberation
which was simply not there, perhaps not because of some psychopathology, but because
of a life-style which precludes any serious consideration of the values of things,
and moreover, it provides an example of an incapacity to fulfil conjugal duties,
particularly of fidelity and offspring.”

It is important to note here two distinctions made by Davino: first, he does not
speak of incapacity to deliberate based on a “psychopathology”, rather “a deliberation
simply not there”; second, the lack of deliberation is not caused by any psychopathology,
but by a particular “life-style” and an adherence to principles contrary to the
Church’s teaching on marriage. This approach indeed can be legitimately applied
to the impact of sosio-cultural and moral upheaval occurring in our modern would
which are definitely undermining the traditional values which form the basis of
Christian marriage. In short, this sentence by Davino affirms the possibility of
proving lack of sufficient discretion of judgment or even incapacity to assume the
essential obligations of marriage without having to establish “serious psychopathology”
(mental disorder) in every case.

In general, however, one must keep in mind that the formation or process of the
act of consent presupposes a healthy intrapersonal and interpersonal integration.
Serrano, for example, says that the “consent ‘in itself’ involves a process which
is difficult and complex, a process produced by several weighty powers of the human
spirit, for example, the use of reason, the free play of the will, strong affective
and emotional drives, all of which can seriously influence the consent in one direction
or another”. Anne expresses this aspect of consent as follows: “Married life (the
state of marriage) principally consists in an interpersonal exchange which has a
healthy interpersonal orientation in each person as its foundation. It follows that
if the life history of either/each person convinces the periti that the person even
before marriage had at that time been seriously deficient in intrapersonal and interpersonal
integration, that person must be considered incapable of understanding in the way
prescribed by law the distinctive character, of that sharing of life which is directed
toward the procreation and education of children, that sharing called marriage, and consequently,
incapable likewise, of making a correct reasoned judgment about inaugurating that
sharing of life with this person; and so, in this case, that maturity of judgment
which can lead to the valid choice of marithalpartner in lacking. Yet the person
can remain able to fulfill other responsibilities which do not involve this intrapersonal
and interpersonal integration.” The focus of these juridic observations is on the
unity and integrity of human personality. A serious disturbance or disintegration
of the unity of personality either due to developmental defect (immaturity or personality
disorder) or caused by a psychological disturbance (e.g. premarital pregnancy) or
a deep rooted attitude of mind contrary to the nature of marriage can render a person
incapable of eliciting valid matrimonial consent which is interpersonal in nature.

It must be noted here that the defect of discretion of judgment is not qualitatively
different from the defect of the use of reason, because both constitute one factum
impeditivum iurium as they render the subject incapable of eliciting valid matrimonial
consent for lack of sufficient capacity to intend and to will. The difference between
these two grounds is only quantitative and is symptomatic of a different degree
of capacity to intend and to will. Even though from a theoretical point of view
the distinction between the two capita may be retained, in tribunal practice the
caput of” lack of sufficient use of reason” obviously seems superfluous.

In conclusion, “discretion of judgment” or “mature decision” consists of three essential
components: sufficient knowledge; sufficient deliberation, sufficient internal freedom
to choose and commit oneself to the “partnership of the whole of life”. From a dynamic
point of view, “discretion of judgment” may be expressed in terms of a person’s
capacity to intend and to will. This involves a complex and intricate psychological
process leading to the ultimate act of decision to marry. This process can be seriously
flowed by disturbances or disorders or deep- rooted attitudinal dispositions of
one’s personality. Rotal jurisprudence presupposes a serious psychological disorder
or disturbance or a personality disposition as a basis for “lack of discretion of
judgment”. It insists on objective evidence linking the disorder or disturbance
to the flawed process underlying “lack of discretion of judgment”. A judge must
have the moral certainty concerning this linkage between the flawed process and
the alleged lack of discretion. Therefore, the judicial inquiry must focus on the
behaviour of the person both before and after the wedding which might provide clues
concerning the presence of a pathology or disturbance. Appropriate expert opinion(s)
would indeed facilitate the task of determining the presence and severity of pathology
or disorder underlying any abnormal behaviour.

5. Those Who Cannot Assume the Essential Marital Obligations

The juridic principle expressed in can. 1095, 3°: “incapacity to assume the essential
obligations of marriage due to causes of a psychic nature” has generated much discussion
in canonical doctrine and jurisprudence in recent years. Even though the legislator
has indicated in the very text of the canon that this is a distinct caput in the
family of incapacities designated therein, there is considerable difference of opinion
among authors concerning the nature and meaning other principle as well as noticeable hesitation in its use in tribunal practice. Nevertheless, the use of this caput
has become more frequent both at the Rota and within local tribunals.

Prevalent Rotal jurisprudence contends that the incapacity to assume conjugal duties
does not affect the formal elements of the act of consent (discretion of judgment),
but it is related to the object of consent. This incapacity consists in the defect
of the object of matrimonial consent insofar as the contractant is incapable of
giving and receiving the essential rights and obligations of marriage. In other
words, it is connected to the impossibility of fulfilling, that is, putting into
effect, the essential obligations of marriage, “because an obligation cannot be
contracted by a person who is incapable of honoring it unless what is vowed or promised
can be given through another person, which is not allowed in marriage”. For, the
rule of law rooted in natural law itself clearly states the principle: “There is
no obligation to the impossible” or “Nobody can be obliged to the impossible.”

This incapacity to assume concerns the formal object (not material object) of consent.
In law the material object of consent are the spouses themselves, who “mutually
give and accept each other in order to establish marriage” (can.1057, §2, emphasis
added). However, the formal object, that is, the juridic aspect under which the
spouses mutually exchange each other, is the complex of essential rights and obligations
of marriage. Therefore, “a person is considered incapable of assuming the essential
obligations of marriage who is not able to handover the essential elements of the
formal object of consent.

From a juridic point of view, a distinction must be noted between the “incapacity
to assume” and the “incapacity to fulfill”. The incapacity to assume is intrinsic
to the person, whereas the incapacity to fulfill may be either intrinsic (psychic)
or extrinsic. When I say “intrinsic” I mean it is intrinsic to the act of consent
as its object. Stankiewicz rightly points out that the fulfillment of matrimonial
obligations is not intrinsic to consent since it pertains to the matrimonial state.
Therefore, the learned Auditor contends, just as the intention of not fulfilling
the obligations does not cause the nullity of marriage, we must also say the same
thing concerning the incapacity to fulfill unless it is rooted in a cause of a psychic
nature and had at the moment of consent coincided with the incapacity to assume

The incapacity to assume the essential obligations of marriage causes the nullity
of marriage by the very fact it affects the will in the very act of election or
decision. The election, which is formally an act of the will, of an impossible obligation
is empty and inefficacious, nor can it by its very nature produce the juridic effects.
The will that chooses such an impossible obligation lacks power over what is willed;
it lacks the faculty to dispose that object which it cannot retain constantly. For,
if the will is inefficient in marriage, it does not produce the effects, namely
it cannot establish the conjugal state.

The essential obligations of marriage are determined within the sphere of the formal
essential object of conjugal covenant. Therefore, it can be rightly said that a
person suffer from the incapacity to assume who, due to causes of a psychic nature,
is incapable of mutual giving and receiving in order to constitute the partnership
of the whole of life that is perpetual and exclusive, and by its very nature ordered
to the good of the spouses and for the generation and education of the offspring
(cann. 1055, §1, 1056, 1057, §2, 1095, 3°). In other words, a person is considered
incapable of assuming the essential obligations of marriage who cannot oblige self to the partnership of the whole of life while the
good either of the offspring or of the spouses or of fidelity or of the sacrament
is lacking. Stankiewicz brings together the essential obligations of marriage under
the two following aspects:

a) Obligation to the gift of conjugal love, ordered to procreate and educate the
child, to be shared with the partner in a human way perpetually and exclusively
(cf. Familiaris consortio, n.11);

b) Obligation to constitute and preserve conjugal communion which is characterized
by unity and indissolubility.

Several essential obligations can indeed be identified under these two general statements:
first, there is the “obligation” to conjugal love; second, the “obligation” to orient
this “conjugal love” to the “procreation” and “education” of offspring; third, the
“obligation” to share with the partner this “conjugal love” a) “perpetually”, b)
“exclusively”, and c) in a “human way”, fourth, the “obligation” to establish and
preserve “conjugal communion”, which demands total fidelity ad indissoluble unity.”

At the very heart of these obligations is the capacity of the spouses to gift one
to the other which is an act of “interpersonality” in its essence heterosexual.
In his Apostolic Exhortation Familiaris consortio, n. 11, Pope John Paul II expresses
this total self-giving as follows: “[…] sexuality by means of which man and woman
give themselves to one another through the acts which are proper and exclusive to
spouses, is by no means something purely biological but concerns the innermost being
of the human person as such. It is realized in a truly human way only if it is an
integral part of the love by which a man and a woman commit themselves totally to
one another until death. The total physical self-giving would be a lie if it were
not the sign and fruit of a total personal self-giving, in which the whole person,
including the temporal dimension, is present; if the person were to withhold [or
incapable of] something or reserve the possibility of deciding otherwise in the
future, by this very fact he or she would not be giving totally”.

The “first communion” established and sealed by the mutual consent is to be fostered
by progressive growth, because in virtue of the conjugal covenant of love the man
and the woman “are no longer two but one flesh” (Mt. 19:6; Gen.2:24), and are bound
to grow continually their communion and mutual total self-giving (Familiaris consortio,
n.19). The mutual gift of two persons to constitute the partnership of the whole
of life “demand total fidelity from the spouses and require an unbreakable unity
between them” (Gaudium et Epes, n. 48).

It is now commonly admitted in jurisprudence that, “interpersonal relationship”(communion
of life) is an essential element of the “consortium totius vitae” and the spouses
have a right to that element. An “interpersonal relationship” implies a true and
a special relationship between two persons, a true friendship based on mutual trust
and self-giving. Two persons should, before anything else, be able and willing to
be friends, to relate to each other, to communicate with each other, or in Wrenn’s
words, be capable of “self-revelation”, “understanding “ and “loving”. This is the
basis or foundation of conjugal relationship. This basis of conjugal relationship
would naturally involve a myriad of psychological and socio-cultural elements. The
capacity and willingness on the part of both spouses for such an intimate interpersonal
relationship is essential for the very being of marriage from the beginning. A substantial lack of this capacity, for whatever reason, would result in the denial of a right essential to marriage. Therefore, Serrano says: “[…] if a serious failing in an
interpersonal relationship is a characteristic of the subject’s incapacity, then
nothing further need be sought since he or she fundamentally lacks the very power
to consent. But whether this incapacity has completely prevented the consent or
merely deprived it of a desirable degree of perfection […] is a question of fact
to be determined in each case, as is clear, with the help of experts”.

Conjugal interpersonal relationship is essential heterosexual in nature. It is a
friendship between a man and a woman. A true and genuine interpersonal relationship
can be present in human relationship without any sexual involvement. But marriage
is a unique interpersonal relationship in which human sexual intimacy plays an important
role. Marriage, being a covenant between a man and a woman, is essentially heterosexual
and the spouses have a right to this special aspect of conjugal relationship.

The heterosexual aspect of conjugal relationship “is uniquely expressed and perfected
by the exercise of the acts proper to marriage. Hence the acts in marriage by which
the intimate and chaste union of the spouses takes place are noble and honorable;
the truly human performance of these acts fosters the self-giving they signify and
enrich the spouses in joy and gratitude” (Gaudium et spes, n.49 emphasis added).
Both doctrine and jurisprudence acknowledge that the spouses have the right to conjugal
acts performed in a human and chaste manner.

The Second Vatican Council taught that the sacred bond of marriage is ordered to
the good of the children. It said: “By its very nature, the institution of marriage
and conjugal love are ordered towards the procreation and education of offspring,
and it is I them that they find their crowning glory” (Gaudium et spes, n. 8), and
again: “Marriage and conjugal love are by nature ordered to the procreation and
education of offspring. Indeed, children are the supreme gift of marriage and they
greatly contribute to the good of parents themselves” (ibid, n.50). Pope John Paul
II, in Familiaris consortio, n.20 states: “This totality which is required by conjugal
love also corresponds to the demands of responsible fertility. This fertility is
directed to the generation of a human being, and so by its nature surpasses the
purely biological order and involves a whole series of personal values”.

The good of offspring is an essential component of the partnership of the whole
of life.this good, however, consists of several elements which have been identified
in law and jurisprudence. As explained above, the spouses have the right to conjugal
acts performed in a chaste and human manner. This right extends to the intrinsic
finality of those acts, namely their openness to the generation on offspring. The
good of offspring would be meaningless if it does not protect the child that is
conceived. Therefore, the right to that good would cover the requirement that the
child conceived be brought forth into the world, and not be terminated wither intentionally
or by a pathological inclination. Again the good of offspring does not stop at the
birth of the child. According to can. 1136, “Parents have the most serious duty
and the primary right to do all in their power to see to the physical, social, cultural,
moral and religious upbringing of their children”. This canon reflects the Church’s
genuine desire for wholesome upbringing and education of children. Therefore, the
right to the good of offspring must comprise also the right to wholesome education
of the child. What is the essence of this “wholesome education” remains to be determined by evolving doctrine and jurisprudence which will have
to necessarily take into consideration the sociocultural aspects of this good.

Canon 1055, §1 expressly states that the partnership of the whole of life is by
its nature ordered to the “good of the spouses”. This principle echoes directly
the Church’s doctrine on the nature of marriage. Even though the 1917 Code did not
consider this element as having any juridic value, the revised Code, reaffirming
the Church’s constant teaching, acknowledges the achievement of personal fulfillment
of the spouses through their self-giving as an essential element of the matrimonial
covenant. Therefore, the spouses have the right to their total wellbeing within
the state of marriage. It is as yet not very clear in what this “total wellbeing”
might consist. But the basic principle sanctioning the right to bonum conjugum is
now accepted n jurisprudence.

The good to fidelity (exclusivity), the good of the sacrament (indissolubility)
and sacramental dignity are also recognized both in law and jurisprudence as essential
elements of marriage. The right to fidelity is not restricted only to conjugal acts
but it covers the entire complex of matrimonial rights as these rights are exclusively
conjugal. The spouses also have the right to the perpetuity, because both fidelity
and perpetuity of the bond are necessarily required by the good of the spouses and
of the offspring as well as by the sacramental dignity in a Christian marriage.

When speaking of the incapacity to assume the essential obligations of marriage
one must take into consideration all these right and corresponding obligations.
The law, however, requires that this incapacity be “due to causes of a psychic nature”.
The history of the evolution of this clause seems to indicate that the legislator’s
mind is to exclude any subjective factors that are purely “physical”, “Physiological”,
“organic”, “hormonal” or “endocrinological”, etc. That does not mean these factors
cannot be indirect causes of the incapacity. For example, in his sentence of November
26, 1985, Ragni says: “can. 1095 speaks only of an incapacity of a psychic or physio-psychic
(or psycho-physical) nature of the person.” Te cause underlying the case before
Ragni was alcoholism. In his explanation of alcoholism, he seems to consider it
a physio-psychological disorder. The direct impact of alcohol or alcoholism is on
the brain and the consequences of this impact are psychological in nature. In my
opinion, this is a logical and legitimate deduction. Jurisprudence affirms the fact
that the spiritual faculties are substantially rooted in the organic basis of the
human person, that is, the human brain. Therefore, what affects the human brain
invariably affects the processes involved in making the decision to marry or to
bind oneself to the obligations to be assumed. This does not deny the fact that
thought processes could be flawed or disturbed by non-organic factors. At least
at this time of scientific research and study, immaturity, personality disorder,
sexual dysfunctions and disorders, neuroses, etc., are primarily disorders of the
psychological sphere that are not directly induced by organic dysfunctions. Therefore,
the incapacity to consent either due to lack of discretion of judgment or due to
one’s inability to assume when speaking of the incapacity to assume the essential
obligations of marriage the essential obligations of marriage can be caused by physical-psychic,
or purely psychic factors. Pompedda expresses this point as follow; for may fart,
I think that with the expression “ob causes naturae psychicae”, the Legislator wanted
to make reference to the personality of the contractant. In other words, there must
be reference to the psychic part of the person […]. It is only when there is something
that impedes the capacity in the psyche or in the psychic constitution of the person,
that then can affirm that the person is incapable. In other words, a person can be held incapable only to the extent that he or she is
found to have something rooted in his or her concrete existence which impedes the
assumption of these obligations.

By the use of the word “assumption”, the Legislator implies that the said incapacity
must be present at the time of consenting and not something that has emerged or
has been caused after exchange of wedding vows. If a “psychic cause” is hypothesized
in a case leading to such incapacity, such a cause also must be present at the moment
of manifesting consent. Moreover, the incapacity caused by the psychic disorder
must be serious. This severity or gravity cannot be determined strictly by psychological
or psychiatric criteria. According to Pompedda, the “sole criteria to determine
whether one is treating a serious canonical incapacity is by relating and referring
the alleged incapacity to the essential obligations of marriage”.

Majority of Rotal judges insist on the “perpetuity” aspect of the “incapacity to
assume the essential obligations of marriage”. In a recent sentence, Faltin vehemently
argues against the requirement of antecedence and perpetuity of the incapacity to
assume. He says that where the common law does not require it we also cannot require
it. If the legislator wanted to prescribe the requirement of those attributes for
incapacity to assume or for lack of discretion of judgment he would have done it.
He has certainly done this with the impediment of impotence. This issue still remains
unresolved in Rotal jurisprudence. The incapacity to assume the essential obligations
of marriage is located within the dynamics of the act of consent. This act is invalid
or valid at the time it is being exchanged. It does not become valid or invalid
sometime later in married life. Therefore it is logical to conclude that the perpetuity
of the issue seems irrelevant in this case.

In using the term “incapacity” in a juridic sense, the legislator intends to insist
on the fact that here one is not dealing with mere “difficulty” but with a “moral
impossibility”. This “moral impossibility” is not to be considered in itself but
in relation to the object of consent, that is to the essential obligations of marriage.
Such a “moral impossibility” is to be proven in each concrete case by the evidence
presented in the proofs including a psychological or psychiatric examination, by
a careful consideration of all the circumstances of the case and by the actual behaviour
of the spouses both before and after the wedding. Al the occurred after the wedding
will have relevance only to the extent it has reference to what occurred at the
moment of the celebration of marriage.

Jurisprudence admits the concept of “relative” incapacity to assume the essential
obligations of marriage. Pinto, for example, says that there is nothing contrary
to considering the relative nature of his incapacity. Whether it is relative or
absolute, the effect would be the same, namely the perpetuity of the right would
be denied to the other party. There is no reason, Pinto argues, for not applying
the norm of can. 1068, §1 to “incapacity of assume” since even in this case it is
the giving of the essential formal object of consent that is impeded. However, Pinto
warns that the mere fact of “incompatibility of personalities” cannot be used as
proof of incapacity to establish the interpersonal relationship that is specifically
matrimonial. He requires presence of “psychopathology” on the part of both spouses
which would negate the possibility of a true “communion of life” or intimate interpersonal
relationship in marriage. Pinto’s view is based on several important principles.
First, the basic principle underlying the impediment of importance (cf.c.1984, §1)
is of natural law. It expresses and incapacity to proffer the object of consent that is a moral impossibility to give what one does not have or
to assume an obligation to do the impossible. This incapacity may either be absolute
or relative. Present jurisprudence admits such an incapacity in the presence of
either organic or anatomical factors, or “functional” factors among which are “psychic
causes.” Therefore, it admits also “relative incapacity for sexual intercourse”
caused by psychic factors” (psychic impotence) as long as they are serious, antecedent
and “incurable” within the relationship. By analogy of law, the principle of c.
1095, 3° is based on the same natural law principle. Therefore, the application
of the principle of relativity to the canon is a logic extension. Second, it is
also based on the principle of interpersonality” or “duality” applicable to conjugal
consent and relationship which results therefrom. Serrano has written eloquently
on this point and, at least the common view among Rotal Auditors supports it. If
marriage is an “interpersonal relationship”, and each party has a right to it, any
serious “psychopathology”, whether it be strictly “personal” or “interpersonal”,
should invalidate consent itself for lack of the object of consent. Third, in proposing
such a principle, Pinto or Serrano emphasize the point that “relative incapacity”
is not the same as “incompatibility” of characters. They imply “radical mutual incapacity
to form an intimate interpersonal relationship” arising from the psychopathologies
of both spouses.

However, Pompedda rejects this view on the basis of methodology used in its supportive
arguments as well as for lack of scientific evidence substantiating the presence
of “interpersonal psychopathology.” He says that the relativity dealt with by Pinto
and Serrano does not have basis in law. The law on impotence has clearly distinguished
between absolute and relative impotence, but the legislator has not specified such
a distinction in c. 1095, 3°. The only relativity explicitly stated in c. 1095 3°
is in relation to the essential obligations of marriage. Therefore, Pompedda insists
that marriage is judged valid or invalid only by determining with certainty the
psychic condition of each of the contractants. He says that the view of Serrano
and Pinto is based merely on “psychological criteria” without justification in law.
Their argumentation, Pompedda contends, lacks “methodological purity”. A translation
of psychological terms and categories in juridico-canonical categories is lacking.
He concludes his view by stating that “to this point in time, a juridic foundation
for such a ‘relative’ incapacity has not been proven.” As I have indicated above,
the view of Pinto and Serrano does have basis in law as well as in jurisprudence.

Practically all recent Rotal sentences speak of the necessity of using experts in
causes of “incapacity to assume”. Apart from instances where the underlying psychic
cause and its effects on personality are clear and quite obvious to the judges,
the use of experts would be greatly helpful in forming moral certainty concerning
the presence of the incapacity. This is particularly true in latent psychic disorders.
it is now on universally admitted fact in psychiatry and psychology that certain
disorders remain latent for a long time before manifesting their true colors. For
example, the disorder of schizophrenia may not be evident to common perception before
the wedding in some cases, but it may explode in full force several years after
the wedding. In cases of homosexuality, for example, the orientation may become
evident only after the wedding. Such a situation may lead to the breakup of the
union and eventually a declaration of nullity of marriage may be sought in an ecclesiastical
court. The important question which must be answered in such a situation is: Did
the alleged condition exist at the time of exchanging consent? In other words, did
the condition arise only after the wedding or was it latent but truly present nonetheless
at the time of the wedding? This problem can sometimes be resolved by having recourse
to experts and to other indications that can assist in structuring the situation of
the spouse at the time of the celebration of marriage. Expert opinions are extremely
useful in ascertaining the presence, nature and severity of the cause underlying
alleged “incapacity to assume”.

An important point of practical consideration concerns the relationship between
“lack of discretion of judgment” and “incapacity to assume the essential obligations
of marriage”. Even though both these “incapacities” are ultimately rooted in the
capacities of the human person, it is quite possible in some cases for them to coexist,
while in others for one to be present without the other.

In his sentence of December 16, 1982, Stankiewicz says that the incapacity to assume
the duties of marriage can occur together with the capacity to elicit the act of
consent that is integral in its psychological components. For, one can be conscious
of the act, and even will it, but because of the “psychic pathology” he or she may
not be in a condition to assume the responsibilities arising therefrom. But the
admission of grave defect of discretion of judgment concerning the essential conjugal
rights and duties seems to preempt consideration of the incapacity to assume.

Stankiewicz argues that if it is proven with certainty that the person marrying
was, due to psychic cases, incapable of understanding and weighing sufficiently
the essential rights and duties of marriage and of giving and receiving the same
rights and duties with a sufficient degree of internal freedom of choice, then there
is no need to press the question concerning that person’s incapacity to assume the
essential obligations of marriage. At least in the order of a judicial pronouncement,
such an approach would be superfluous. Similarly in his sentence of April 2, 1981,
Egan states that it is useless in a case of nullity of marriage to investigate the
incapacity to assume conjugal duties in a person who was certainly incapable of
eliciting the very act of consent that is proportionate to marriage.


Canon 1095 is the most practical legal tool the legislator has put at the disposal
of ecclesiastical tribunals in resolving an ever increasing number of marriage cases
involving psychological causes of nullity. This canon has a long legal history and
it still holds out possibilities for future developments. Canonical doctrine and
jurisprudence have drawn certain juridic principles from their interpretation and
application of the canon to concrete cases. The caput of “lack of sufficient use
of reason” seems to have had its role in canonical history. In light of the caput
of “lack of discretion of judgment”, it has no practical relevance in tribunal practice.
The caput of “lack of discretion of judgment”, which in essence means “lack of maturity
of decision” consists of three essential components, namely due knowledge, due deliberation
and due internal freedom to choose marriage. These components presuppose certain
degree of maturity of the affective, intellectual and motivational (violitve) aspects
of one’s personality. Without such maturity one cannot have the degree of knowledge,
deliberation and internal freedom to make the weighty decision to marry. A lack
of due maturity of judgment can be caused by habitual or transitory disturbances
of a person’s mental faculties. The caput of “incapacity to assume” implies that
a person may be rendered incapable of contracting marriage if he or she is affected
by a serious psychic cause which impedes him or her from assuming the essential
obligations of marriage. This incapacity, and consequently, the psychic cause, must
be present in a serious degree at the time of contracting marriage. The cause can
be purely “psychic” or “psycho-physical”, provided that the assumption of the essential
obligations is made impossible because of it. It is not an incapacity to assume
any obligations but only those obligations which are of the essence of marriage
that invalidates consent. Current doctrine and jurisprudence refer the essential
obligations of marriage to the tria bona, the properties of unity and indissolubility,
and the sacramental dignity of marriage. The specifics of these elements are yet
to be determined gradually by developing jurisprudence.