Matrimonial consent - in the eyes of the law.
Canon 1057.2 defines what matrimonial consent is, an act of will by which a man and a woman by an irrevocable covenant mutually give and accept one another for the purpose of establishing a marriage.
Natural capacity, capacitas, is the capacity of the parties to posit a human act. So the consent must be from both parties and it must be an act of will. Consent cannot be feigned. It has to be deliberate and free, a deliberate act, which is a result of a series of internal acts to thought. It has to be free as well, meaning not forced upon the parties. A marriage is brought into being by the lawfully manifested consent of persons who are legally capable. This consent cannot be supplied by any human power.(Canon 1057.1) It has to be externally manifested: society needs to know. Consent must be mutual.
In Gaudium et spes (par.48) one finds, "The intimate partnership of married life and love has been established by the Creator and qualified by His laws. It is rooted in the conjugal covenant of irrevocable personal consent". Marriage is not something that was invented by man, but is a natural right derived from natural law. When referring to marriage as a natural institution we mean that the foundations of marriage are pre-given, they are inherent to the human nature, and therefore cannot be modified.
From the above quote one can see that marriage albeit described as a covenant does not lose its character as a contract based on the consent exchanged between the two partners: Il qofol tal-ghaqda taz-zwieg qieghed fl-'iva' li r-ragel u l-mara jaghtu lil xulxin meta jizzewgu precizament bil-hsieb taz-zwieg. Dan hu l-kunsens.. Permezz tal-bdil ta' dam il-kunsens tibda ssehh rabta qaddisa li twassal ghal ghaqda ntima ta' hajja u mhabba bejn ragel u mara, imhabba miftuha ghat-tnissil ta' hajja gdida fl-ulied 1 . The Church holds the exchange of consent between the spouses to be the indispensable element that "makes the marriage." If consent is lacking there is no marriage.
The consent given in marriage is directed towards the setting up of a covenant of life and love between the couple through the fulfillment of the obligations of marriage. The capacity must be measured against and be in proportion to the object of consent (i.e. the fulfilling of the essential obligations of marriage) which is going to be posited. What are the essential obligations of marriage? One can utter that the essential obligations of matrimony are all those elements which have reference to one or more of the elements that constitute marriage:-
These obligations include: The obligation concerning the conjugal act of carnal union, as bodily union and basis of procreation; the obligation of the community of life and love as an expression of the union between man and woman, mutual well-being, which is inseparable from the provision of an environment conductive to the reception and education of children,; and the obligation to receive and bring up children within the context of a conjugal community. It is important to remember that these essential obligations must be mutual, permanent, continuous, exclusive and irrevocable so that there would be an incapacity if one of the contracting parties should be, due to psychological cause, incapable of assuming these obligations with the essential characteristics2.
The contracting parties must therefore possess the capacity to fulfill these obligations of marriage, because marriage is a contract based on the consent exchanged between the two partners and a contract by its very nature, cannot exist without an object on which agreement is reached. "In marriage there is a contract whereby one is bound to pay the other the marital debt; wherefore just as in other contracts, the bond is unfitting if a person bind himself to what he cannot give or do, so the marriage contract is unfitting, if it be made by one who cannot ...
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The contracting parties must therefore possess the capacity to fulfill these obligations of marriage, because marriage is a contract based on the consent exchanged between the two partners and a contract by its very nature, cannot exist without an object on which agreement is reached. "In marriage there is a contract whereby one is bound to pay the other the marital debt; wherefore just as in other contracts, the bond is unfitting if a person bind himself to what he cannot give or do, so the marriage contract is unfitting, if it be made by one who cannot give or do, so the marriage contract is unfitting if it be made by one who cannot pay the marital debt 3."
In Canon 1095, one finds what is called the Consensual Incapacity. This section indicates that only real incapacity invalidates a marriage because the mere difficulty in giving consent and in realizing a true community of life and conjugal love as understood by the Christian community does not 4. The incapacity referred to in canon 1095 is a juridical one, even though the motives that cause such juridical incapacity are of a psychological nature.
Canon 1095 states that: The following are incapable of contracting marriage:
. those who lack sufficient use of reason;
2. those who suffer from a grave lack of discretion of judgment concerning the essential matrimonial rights and obligations to be mutually given and accepted;
3. those who because of causes of a psychological nature, are unable to assume the essential obligations of marriage.
It is imperative to make an initial distinction between the 1st and 2nd and 3rd of this Canon. Canon 1 and 2 have to do with the sufficiency of consent i.e. whether a person was at the time of his marriage capable of eliciting a valid matrimonial consent through the normal use of his spiritual faculties of the intellect and will. This is what we mean when we make use of the term "use of reason" and "discretion of judgment" for marriage. On the other hand Canon 1095. 3 deals with the efficacy of consent. This third section deals with the object of the act of consent. If a person is incapable of fulfilling the essential obligations of marriage, he/she cannot validly consent to assume them and so the marriage will be invalid.
This capacity or incapacity is directly referred to the setting up of a marriage as a covenant of life and love, which of its very nature is essentially ordered to the good of the spouses and the procreation and upbringing of children (the obligations of marriage). It must be considered and weighed in relation to the act that he/she is going to make.
Canon 1095.1 holds that a person is incapable of contracting marriage if he lacks sufficient use of reason. Unless a person uses his reasoning capacity he cannot know what marriage is. This means that without the use of reason a person cannot know what he is undertaking in giving his consent. Consequently the consent cannot be valid if this use of reason in not present. This Canon deals with the fundamental ability to know and not with what the person actually knows about marriage. If this ability to know is lacking, either completely or substantially, a person cannot give a valid consent.
Canon 1095.2 speaks of incapacity to give consent because of a grave lack of discretion of judgement concerning the essential matrimonial rights and obligations to be mutually given and accepted. When talking about the object of consent there was the mentioning of what is one to understand by these marital obligations. What is one to understand by lack of discretion of judgement?
Our Marriage act contains a similar provision to this Canon, "A marriage shall be void if the consent of either of the parties is vitiated by a serious defect of discretion of judgment on the matrimonial life, or on its essential rights and duties... 5 We could perhaps reach a better understanding of the phrase discretion of judgment by looking at the way it has been interpreted in our Civil Courts: It seems that the discretion of judgment or maturity of judgment can be lacking if any one of the following three conditions or hypothesis are verified:
. when sufficient intellectual knowledge of the object of consent to be given in entering marriage is lacking
2. when the contracting party ahs not yet reached a sufficient amount of reflection that is proportionate to the conjugal affair, that us a critical reflection apt for the nuptial
3. or finally when either party contracting marriage is deprived of internal freedom, that is, that the capacity to deliberate with sufficient weighing of the motives and, on the part of the will, freedom from all force from within 6.
This demonstrates that the notion of discretion of judgment is not as such concerned with the intellectual capacity of the individual but rather with the use of such intellectual capacity in a practical way. The grounds for lack of due discretion...concern the presence or absence of that critical or judgemental faculty which continuing Rotal jurisprudence had seen as necessary for a person to give valid consent, in a meaningful way, to marriage. It concerns not any sort of critical or judgemental power but one that can evaluate and make a true judgment about the very special and life-long obligations and effects of the married state as a community of life and love which involves a mutual self-giving or amor conjugalis. In this sense the necessary power of evaluation and judgement must enable a person to make an act of the will commensurate with and in proportion to the gravity of the object willed or the action to be undertaken in all its aspects and consequences 7.
The Canon Code requires that the lack of discretion of judgement must be a grave one: it must be such as to remove the person's powers of judgement completely or at least substantially enough so as to make him incapable of consenting to marriage. The gravity of the defect of discretion is a question which as to be measured through an evaluation of the person's personality, abilities and behaviour as well as reports from psychological experts. Such defect may be caused either by a permanent factor such as brain damage or by a factor of a transitory nature such as the influence of drugs or alcohol. What is required is that this factor was affecting the person at the time he gave his consent.
The matrimonial consent involves:
i) a psychological process of formation of this consent
ii) possible deviations which affect this process
Section 1095.3 speaks of incapacity to give consent which results from a psychological cause and which renders the person unable to assume the essential obligations of marriage. If a person is incapable of fulfilling the essential obligations of marriage he cannot validly consent to assume them. Consequently the marriage will be invalid. L' incapacita di assumere gli oneri rende invalido il matrimonio. Vi sono in effetti delle persone le quali per gravi perturbazioni del substrato psicofisiologico sono incapaci di stabilire quella relazione interpersonale - in quanto comporta la mutua donazione di due persone - perpetua, esclusiva e intima, che è richiesta dalla comunione di vita coniugale, necessaria per il raggiungimento, in modo veramente umano, della finalita propria del matrimonio, senza la quale la societa coniugale non puo esistere 8.
The Code speaks of the person being unable to assume the obligations. This implies a serious psychological defect and not just a diminished capacity. This defect must be present at the time the consent is given. It is also important to note that the Code does not give a definitive list of what obligations are deemed to be essential in marriage and neither does it give a definitive list of the psychological causes. Bersini, already quoted above, lists these causes as examples of psychological factors which render the person incapable of consenting to marriage: La capacita di obbligarsi a concedere il diritto alla communione di vita suppone che il contraente, nell'atto di contrarre matrimonio, possa instaurare un consorzio eterosessuale, intimo, esclusivo e perpetuo, ordinato alla mutual perfezione psicosessuale. Ma se egli, per una profonda e instintiva inclinazione omosessuale oppure per una abnormita dell' istinto e dell'indole, non è in grado di instaurare un tale consorzio, ne d'altra parte gli interventi psicologici o pastorali possono apportare alcun rimedio, è da ritenersi incapace di assumere questo onere conjugale 9.
If one looks at canon 1058, All can contract marriage who are not prohibited by law, one can easily argue that everyone is fit for contracting marriage. Therefore here we have a juris tantum presumption that there is sufficient discretion of judgement capable of eliciting a valid consent. Incapacity must be regarded as something extraordinary 10.
Pope John Paul II, in his address to the Rota of the 5th February 1987 (n.7) pointed out the "The hypothesis of real incapacity is to be considered only when an anomaly of a serious nature is present which, however it may be defined, must substantially vitiate the capacity to understand and/or to consent."
Also another important element of incapacity is that it must be certain and present at the time of marriage. Though it has to be present it is not required that it be manifested at the time the consent is given. It may happen that a person does not realize the other party is suffering from such incapacity. If the incapacity is developed later the consent will not be vitiated. The need of such incapacity to be present at the time of consent is necessary to render the marriage null and void because it is at the time of consent that one receives the rights and obligations of marriage in a perpetual manner. The incapacity is not something, which comes afterwards, but an incapacity, which can be seen and traced, to the moment the marriage is contracted (matrimonium in fieri). Matrimony obtains its value in the moment that the consent of the two parties meet. The consent of the man encounters the consent of the woman, and in that moment matrimony obtains both as a reality and as a state.
Only incapacity voids matrimonial consent and consequently renders marriage null and not difficulty. Canon 1095, 3° says that the source of this incapacity is, "for reasons of a psychic nature". The Rotal Judge Msgr. Pompedda stated:- "with the expression "ob causas 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 one affirm that the person is incapable. In other words, a person can be held incapable only to the extent that he/she is found to have something rooted in his/her concrete existence which impedes the assumption of these obligations" 11.
Conclusion
Albeit any person can take part in a wedding ceremony, a person must have the capacity to marry for that marriage to be valid. Though having the proper intentions is also required, that is not enough. As Fr. Ladislaus Orsy puts it: A person intending to marry must have the capacity to think rationally, to decide responsibly, and to carry out the decision by action. This capacity must be present at the moment of the exchange of the promises (consent). If the validity of the promises (consent) is ever doubted, all that has happened before and all that has followed later can only serve as signs to determine the precise spirit of the person at the moment of the exchange of the promise (consent) 12.
Familiaris Consortio 12
2 Viladrich, PJ 'Matrimonial Consent in Code of Canon Law' (Montreal 1993 pg. 687)
3 St. Thomas Summa theol., Suppl., q. 58, art. 1, in corp.
4 Forum. Vol. I. pt.I p.20
5 Marriage Act, chapter 255. Section 19. 1d
6 Portelli vs. Portelli 14th August 1995
7 Ecclesiastical Tribunal of Westminster London, 30th January 1975 (reported in Matrimonial Decisions for England and Wales; coram Ashdowne; pg: 204-206)
8 Bersini F. 'Il Diritto Canonicale Matrimoniale', Elle Di Ci, Torino 1994, pg 99
9 Bersini F. 'Il Diritto Canonicale Matrimoniale', Elle Di Ci Torino 1994, pg 117
0 M.F. Pompedda, Incapacity to assume, cit. In Sable, p.197
1 M.F. Pompedda, Incapacity to assume, cit. In Sable, p.197
2 ANNULMENT Do you have a case? Terence E. Tierney by Joesph J. Campo 1998 , JCL
University of Malta
Aloysius Bianchi
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