The Development Of Matrimonial Decisions For England And Wales
The January 1967 meeting of the Society was the occasion when Matrimonial Decisions for England and Wales (MDEW) was conceived. It was the idea of Monsignor John Humphreys. With a view to encouraging Tribunal work around the country, Diocesan Tribunals should share their nullity decisions with each other. This idea did not work out. Accordingly it was determined at Wimbledon in January 1968 that the Society offices should acquire all the decisions from the Diocesan Tribunals; remove the names and identifying features in each case; and then print and produce Matrimonial Decisions for England and Wales (MDEW).
Matrimonial Decisions for England and Wales (MDEW)
It will be noticed that Irish and Scottish decisions were not part of MDEW until 1976. Volume 1, dealing with decisions of 1967, appeared in the summer of 1968. There were some 41 Sentences and these were notionally the only Sentences which had been written in England and Wales during 1967. Reflecting on that fact for a moment, the records show that out of the 41 Decisions which appeared in that volume, sixteen came from Westminster, five from Liverpool, two from Clifton, nine came from Birmingham, nine from Menevia, one from Brentwood, four from Portsmouth and one each from Shrewsbury and Southwark.
The old volumes of MDEW showed the rapid increase of cases in the number of decisions over the years. Whether it was MDEW that helped in this increase it is impossible to say; but certainly other Tribunals which did not have decisions in the 1967 volume might have been encouraged to produce decisions.
The reproduction of all Sentences from England and Wales continued until 1974. The increase in Sentences was rapid and by 1972 there were so many Decisions (over 300) that MDEW had to be published in two volumes for the years 1972 and 1973.
In 1974 it was decided to create a selection sub-committee and to choose approximately 40 to 50 Sentences for reproduction. Since then MDEW came out with around 45 Decisions each year. In 1979 the Tribunals in Scotland and Ireland agreed to contribute Sentences for selection. As a result MDEW became Matrimonial Decisions for Great Britain and Ireland (MDGBI) from volume 16 in 1980 onwards.
In 1991 it emerged that MDGBI was read in some 38 countries throughout the world. In 1992 two professional indexers were engaged by the Society and an Index covering the years 1967 – 1989 (25 volumes) was produced covering 22 years.
Volume 3 of MDEW (for 1969) reveals the first lack of due discretion case at Westminster in First Instance. (c. Brown 3.7.1969) and the same case on appeal at Birmingham (c. Humphreys 30.9.1969). Both decisions were in the affirmative. From then onwards the number of cases on the grounds of lack of due discretion grew rapidly. The early decisions on the grounds show that there was considerable ambiguity in the understanding of lack of due discretion and the inability to assume the obligations of marriage. At one stage it appeared as if those two grounds were regarded as one. But this was before the final drafts of the Code. The confusion between these two headings continued in MDEW and MDGBI for about 10 years. An examination of the cases on these two grounds would be fruitful for an interested Researcher. An interesting fact (especially derived from the 1969 volume) is that the principal ground decided by Tribunals in England and Wales had for several years been an intention contra bonum prolis. In the 1969 volume in which there were 65 decisions, 33 of these sentences were on the grounds of an intention contra bonum prolis.
The annual production of these decisions has certainly had a very considerable influence on Sentence writing in these Islands as well as around the English speaking world. They have also been an invaluable aid to the Canon Law Society’s Jurisprudential Courses for the last 20 years.
- Monsignor Ralph Brown
For 47 years the Society published nullity sentences in its annual publication of 'Matrimonial Decisions'. When the publication of 'Matrimonial Decisions' ended in 2014 the decision was made to publish matrimonial decisions in the editions of the Society's Newsletter.
Statistical shift 1982-onwards
It is difficult to get a statistical overview of trends in the grounds alleged for nullity, either in these islands, or more generally, since the returns compiled for the Holy See do not distinguish between the different grounds relating to the quality of consent. However, the decisions selected for Matrimonial Decisions of Great Britain and Ireland do provide some hints. Of course, these decisions are selected because of their intrinsic interest rather than as a statistical sample, but while there have always been large numbers of cases judged under the provisions of Canon 1095 to consider, those judged on other grounds have tended to be far fewer, and the more, dare one say, exotic, the more likely their inclusion. Throughout the past twenty-five years, the vast majority of cases have been presented on multiple grounds, and most of them have included grounds under Canon 1095 as well as other headings. Some grounds do not appear at all, e.g. ignorance (Canon 1096), and impotence seems also to have disappeared. Some much discussed grounds such as the exclusion of sacramentality, or of the good of the spouses are hardly represented. Some grounds that emerged as a form of ‘kite flying’ in the late 1970’s and early 1980’s, expressed as ‘inadequate consent amounting to simulation’ or ‘lack of commitment’ have sunk without trace, having been rightly seen as imprecise versions of implicit simulation. Deceit was not an independent ground prior to 1983, but there were one or two anticipatory cases tried on error. While there have been a number of significant Rotal decisions on error in recent years, there has not been a notable increase in the number of cases in MDGBI. However, force and fear has made something of a come-back as a ground in its own right, rather than a cause of grave lack of discretionary judgement. There has also been an increase in the number of cases judged on conditioned consent and invalid convalidation. There is, nevertheless, and despite an upsurge in the 2005 MDGBI, a considerable contrast with some continental tribunals, where the majority of cases are adjudicated on some form of simulation rather than psychological grounds. The intention of this article is to review briefly significant developments in what might be styled the more traditional grounds of nullity over the past twenty-five years.
In his opening address to the Annual Convention of the Canadian Canon Law Society, October 1997 (Forum IX (1998) 65-82), Mgr Cormack Burke mentions a comment by John Beal in Proving simulation of matrimonial consent, (The Jurist LV (1995) p.745), to the effect that traditional grounds of nullity such as simulation have been in virtually total eclipse for twenty five years, and adds, “If my view that more marriages today are null because of simulation than because of consensual incapacity is also correct, then it will be a very positive thing if we are emerging from that eclipse.” The 2005 volume of MDGBI (XLI) seems to reflect this, with no less than twenty-one simulation cases, seven of total simulation and fourteen of partial simulation.
In a sense, as a classic ground of nullity, one would not expect to see dramatic developments, but Burke draws attention to the greater reluctance today for any type of permanent personal commitment. Without wanting to go as far as saying that no one wants or believes in permanent marriage today, the likelihood of simulation is greater today than in the past. Many people approach marriage ‘in two minds’, either about marriage as such, or some element of marriage. To distinguish between misgivings, and a consent so conditioned by doubts as not to be given at all, one must weigh the ‘prevalent intention’. It must be shown that the intention not to bind oneself has prevailed over that to go through a ceremony which apparently binds one. Lack of love, fear, misgivings, can be evidence pointing to an intention to simulate. Such an act of exclusion can be positive but implicit. They can be unconscious of the juridical effect of simulation, but not of internally rejecting something. In hypothetical exclusion, what is hypothesised might lie in the future, but the lack of acceptance of a permanent bond here and now, and such a scenario might equally be dealt with under Canon 1102 §1.
Three of the cases in MDGBI 2005 involved marriages entered for extrinsic motives, one for residence in the UK, a second for residence in Malta. In the former case money changed hands. In one case there was decided reluctance to convalidate the civil marriage on the part of the Respondent, combined with a refusal to consummate the union. The decision was affirmative on the grounds of both total simulation and the exclusion of the good of children. Another case involved a woman who went through marriage under pressure from her father, but really wanted to be with someone else. One case concerned someone who really did not want to be married at all. There were also two decisions, negative on simulation, but affirmative on grave lack of discretionary judgement. These are just as significant in their own way, because they evaluate the relative influences of the prevalent intention or positive exclusion and uncertainty or other psychological issues affecting the ability to choose. The number of cases where an affirmative decision on both total and partial simulation is given also marks a development. Formerly these were seen as in principle incompatible, but today Rotal jurisprudence tends to eschew such theoretical problems and focuses on whether the evidence sustains either or both headings.
Exclusion of the Good of the Spouses
This ground was given detailed consideration in CLSN 140/04, 33-69: A. Mendonça: “Recent Developments in Rotal Jurisprudence on Exclusion of Bonum Coniugum”. Subsequently an interesting affirmative decision has appeared in Periodica XCVI (2007) 65-92, coram Turnaturi, dated 13th May 2004. The case had been introduced on the grounds of total simulation and subordinately the exclusion of the good of the spouses. The first instance decision, affirmative on the latter ground, was overturned on appeal. Both parties had been previously married, the man separated, the woman divorced twice. Their first spouses having died, they contracted canonical marriage in 1994 after four years of fractious cohabitation, but separated after two years. The former distinction between primary and secondary ends of marriage had been abandoned by the 1983 Code, which set the good of the spouses on the same level as that of the procreation and upbringing of children, unifying the primary and secondary ends. The good of the spouses is, as it were, the sum of all the goods, and an essential element of marriage. Turnaturi then considers the various positions taken as to its juridical qualification by Rotal auditors. The good of the spouses embraces those obligations which can be seen as a sine qua non without which the establishment of an intimate partnership of life is morally impossible, as distinct from those that simply contribute to well-being. An unchanged sense of mutual alienation on the part of one of the parties from the outset, leaving aside the possibility of incapacity, is an equivalent proof of the exclusion of the natural ordering of the union to the good of the spouses. This is exemplified in someone who simply wants the structure of marriage so as to benefit from the material goods of the other party, without accepting the other obligations of marriage. It is one thing to have an extrinsic end that is compatible with the ends of marriage, another to have one that is incompatible. In this case an on-going source of friction before and during the marriage was the petitioner’s refusal to put a house he owned in the Respondent’s name.
MDGBI 2005 contains two cases judged affirmatively under this heading. The Portsmouth decision coram Humphreys of 24th May 2005 (n.20) examines the law on this heading in some detail, drawing particularly on Boccafola’s decision of 12th March 1998 for the relevance of the good of the spouses, and on two Rotal decisions from 2000, cited from the Mendonça article. The second case, also from Portsmouth coram Golding of 7th September 2005, does not elaborate the law to quite the same extent, but the argumentation for positive exclusion is clearer, based on three areas: residence; the desire for children; lack of concern for the spouse in time of serious sickness.
Exclusion of Sacramentality
This question will be considered in greater detail below under ‘error determining the will’ which seems to have become the preferred framework for considering this question, although decisions have been given under a variety of headings. A negative decision coram Giannecchini of 18th December 1996 (Monitor Ecclesiasticus CXXIII (1998) 560-591) does explore some of the issues since the grounds proposed included both error (Canon 1099) and exclusion of the good of the sacrament. In both cases a positive act of the will is required, since intellect alone does not invalidate marriage unless it influences and determines the will. Crass ignorance or lack of religious practice can lead to a situation where people rely on erroneous teachings, or do not give any particular thought as to the essential properties of marriage, but habitual or interpretative intention, or simple habit of mind do not determine the will. Confusion about the sacred in general and the sacraments in particular hinders the apprehension of sacramental dignity as the object of will, and therefore its exclusion is unlikely among those with little religious knowledge. “However, if the party apprehends and repudiates, with mind and will, the sacramentality of marriage, the marriage is rendered invalid according to the most recent jurisprudence of our forum”. (n.7 p.569)
Exclusion of the Good of Indissolubility
Considering the number of cases concerning the other areas of partial simulation there is a notable lack of those dealing with the bonum sacramenti. Of course, it may simply be that this is an area where there has been no great development of jurisprudence or interesting cases. There are no cases in MDGBI 2004, and only one in MDGBI 2005. The Respondent was a self-centred man. Just two weeks before the wedding he took legal steps to ensure that the Petitioner would not get anything from the sale of the house if they split up. There were two cases in MDGBI 2003. One decision concerning hypothetical exclusion of permanence was negative for lack of evidence. The other, affirmative, concerned a serviceman’s wartime marriage in Egypt from which he intended to escape as soon as he returned to England.
Exclusion of the Good of Children
In an interesting decision by Monsignor Cormac Burke sets the good of children in the personalist context that runs through so much of his writing (Monitor Ecclesiasticus CXXIII 4/98, 592-619: Mediolanen.: Nullitatis Matrimonii (Marcus-Elizabeth) ob exclusionem boni prolis ex parte viri actoris. Sententia definitive, diei 19 Octobris 1995 coram R.P.D. Cormac Burke). Procreativity is described by St Thomas Aquinas as “most essential” to marriage in that it sets marriage apart from other interpersonal relationships. It should not be contrasted with personalist ends as an institutional end. There should be no tension or hierarchy between the ends, but harmony and interdependence. Conjugal sexuality expresses and achieves a self-gift and other-acceptance that is more specifically marital than a desire that remains on a purely spiritual and unincarnated level. In consequence, excluding procreativity one neither gives oneself, nor accepts the other. The question of temporary exclusion needs careful consideration. One cannot give a general rule when this has been by mutual agreement. However, unilateral postponement, without consultation, knowledge or acquiescence, is another matter. If it limits the rights of the other, it certainly invalidates. Stankiewicz takes up the latter point: Monitor Ecclesiasticus CXXIV 4/99, 614-669: Tribunal. Reg. Flaminii seu Bononien.: Nullitatis Matrimonii (Gratianum S. – Marinam B.) 1) ob gravem defectum discretionis iudicii et incapacitatem assumendi essentiales matrimonii obligationes in utraque parte (can. 1095, nn. 2-3); et subordinate: 2) ob exclusum bonum prolis ex parte mulieris conventae (Can. 1101, §2). Sententia definitiva diei 24 julii 1997 coram R. P. D. Antonio Stankiewicz. Like Burke, he accepts that a true denial of the right amounts to a condition against the substance of marriage, but this is not to be presumed. A general intention to wait until financial circumstances are more propitious to start a family does not amount to such a condition, but simply an abuse of a right that is recognized.
MDGBI 2005 contains no less than eight cases examined under this heading. Most of these concern a complete rejection of children. One involved a refusal on the part of the man to have intercourse without condoms for medical reasons (phimosis), (n.8). Two cases involved reservation of the right to decide whether and when, rather than absolute exclusion. The first of these is fairly straightforward, and draws on Burke’s presentation (n.10). The second (n.13), Nottingham coram Woodall of 31st August 2005, raises some interesting avenues for exploration, including the question of whether the religious upbringing of children is relevant to this ground. Unusually for such a case there were two children, but each conceived as the result of an isolated act of intercourse conceded by a generally reluctant wife.
Exclusion of the Good of Fidelity
A classic statement of the current understanding of this ground can be found in Monitor Ecclesiasticus CXXVI 1/01, 131-160: Florentin: Nullity of Marriage (Catherine-Nicholas) 1) on ground of error concerning a quality of the person directly and principally intended on the part of the woman; 2) on ground of incapacity to assume the essential obligations of marriage on the part of the man; 3) as of first instance, i.e. the exclusion of the good of fidelity on the part of the man; 4) a new proposition of the case with regard to error concerning a quality of the person directly and principally intended by the Petitioner. (Decision 13th February 1998 coram Defilippi).
Defilippi starts from the principle that God is the author of marriage, and it does not depend on the arbitrary nature of human will. While the human will does not have to be addressed explicitly to each single essential element, these must not be subject to positive exclusion. When someone has been brought up in an entirely materialistic and hedonistic way, and demonstrates this by his behaviour, one can speak of an error that penetrates the will. In principle the grounds of error determining the will and partial simulation seem incompatible, but practically they are intertwined. It is a question of whether the good of fidelity is excluded positively and directly, or indirectly. He acknowledges that one must distinguish between a root and branch exclusion of the right, and the exclusion of its exercise, but emphasises that denial of or refusal to accept the right to exclusivity invalidates consent. In this case one must look carefully at the character, beliefs and morals of the alleged simulator.
MDGBI 2005 contains three decisions on this ground, two affirmative and one negative. The first case, Westminster coram Sloan of 27th October 2005, concerned a marriage that lasted a little over a year, and there was evidence of infidelity with a particular woman during the courtship, and continuing during the marriage. The law section cites a Rotal decision coram Bruno of 15th June 1990. The second case, Scottish National Tribunal coram O’Kane of 24th February 2005, concerned serial infidelity on the part of the man, both before marriage, and from an early date within it. The third case, Birmingham coram Fabrizio of 16th February 2005 received a negative decision. While the respondent was unfaithful, there was no evidence that at the time of the wedding she had excluded fidelity.
Error, deceit, and the relationship between them, have been the subject of numerous articles in canonical journals since 1983 – my hardly comprehensive card index lists forty three! This is not surprising in view of the significant changes made in the 1983 Code, which elevated deceit into a separate ground (Canon 1098), and clarified error of quality of person (Canon 1097 §2) by substituting ‘a quality directly and principally intended’ for the more vague ‘error redundans in personam’ of the 1917 Code (Canon 1083 §2). I will look at the question of deceit shortly. Clearly it is not possible to summarise so much discussion in a few lines, only to identify the main issues and trends.
An article by Augustine Mendonça in Forum XVI (2005) 362-345, ‘A doctrinal and jurisprudential analysis of Canon 1097 on error of fact’ is one of the most recent and thorough treatments of this area. He points to over sixty published Rotal decisions dealing with this ground since 1983. The decision of Canals 21st April 1970 had opened the way to a broader approach to what constituted error of person, but introduced a danger of subjectivism. That of Pompedda on 6th February 1992 rather rowed back from this, insisting on a greater degree of objectivity, that the quality had to take priority over the physical person in the intention of the contracting party, a perspective reinforced by Pope John Paul II in his address to the Rota of 29th January 1993. This was taken up and systematised by Stankiewicz in a decision of 22nd July 1993. However, this has not put an end to exploration of relevant areas of error. Mendonça explores the conceptual background. Behind both Canon 1097 §2 and 1099 lie an implicit condition. Something is desired as a sine qua non, and this influences the will, rather than simple error of fact. Pompedda distinguishes between substantial, individuating qualities, even those that are culturally based rather than strictly physical, which would lead to nullity by reason of Canon 1097 §1, and those that are of subjective importance to the individual, which are envisaged under Canon 1097 §2. For the latter more is required than motivating error. The quality must be directly and principally intended.
Not all Rotal auditors make such a clear distinction. Mendonça analyses in some depth a decision of Defilippi 6th March 1998, that seems to go against this, and to broaden the concept of person, by giving an affirmative decision under Canon 1097 §1. The case concerned a woman who had health problems and was set on marrying a medical doctor. “Without doubt, according to the jurisprudence of Our Apostolic Tribunal, not only subjectively but also from the common estimation of people, the status of medical doctor and, consequently, the complex of other qualities of the man are of great value for living out the communion of conjugal life. And the woman contends that she had individuated the person of her future husband by those qualities”. Not all auditors accept this extensive interpretation of the concept of ‘person’. However, a number of qualities have been considered relevant in terms of Canon 1097 §2, whether objectively or subjectively: marital status (absence of prior civil union); social status (medical doctor; legitimacy); political affiliation; age; physical health; mental health; virginity; procreative capacity; religious belief; pregnancy; moral qualities.
Decisions printed in recent issues of MDGBI do not really reflect these developments. Most focus on deceit, with error as a consequential element, or on error determining the will (Canon 1099). A Dublin decision coram McGrath (MDGBI XL (2004) n.15) was adjudicated under Canon 1083 of the 1917 Code, and was affirmative on a moral quality (drunkenness), but the law section understandably does not refer to more recent developments.
The formal recognition of deceit as an independent ground of nullity in Canon 1098 occasioned a flurry of activity and articles at the time, primarily on the issue of whether, as a norm of positive law, it could be applied to non-Catholics, or retroactively. The Pontifical Commission for Legislative Texts declined to make a formal reply, considering this to be a doctrinal matter, but indicated privately that the formulation is of positive law, and by implication not applicable in such cases, but that its basis lies in natural law, and there might be circumstances in which it legitimately be applied (see New Commentary on the Code of Canon Law, J. Beal, J. Coriden & T. Green, New York & Mahwah 2000, p.1308-1309). In practice most Tribunals seem to take a belt and braces approach with both deceit and error being considered.
An article by the Rotal auditor, Mgr Kenneth Boccafola, entitled ‘Deceit and Induced Error about a Personal Quality’, Studies in Church Law I (2005) p. 245-268 provides a useful analysis of articles and jurisprudence in this area. It appears to be a revised version of an article of the same title published in Monitor Ecclesiasticus CXXIV (1999) 692-710. The former Code did not contain such a provision, and the general rule is that deceit does not invalidate contracts (cf. Canon 125 §2 ). Canon 1098 is a counterpart to the previous Canon, in that it accords induced error relevance for validity without the requirement that the quality concerned be directly and principally intended. Various explanations were offered as to the basis for this: positive law deprives naturally valid consent of its effectiveness because of the injustice involved in deceit; deceit affects the consent of both parties since it does not permit a true act of self-bestowal or acceptance; it interferes with internal liberty by provoking error or false judgement. Burke seems to favour the second position, Stankiewicz the third. Both of these approaches presume that the fundamental basis for the ground lies in natural rather than positive law, and therefore can be applied to marriages between non-Catholics and contracted before 1983.
As in the previous Canon, error must be demonstrated, but concerning an objectively serious matter such as to seriously disrupt married life. There must also be a causal link to deceit, and that perpetrated in order to extort consent. Deception must not just be incidental, e.g. reticence out of a sense of shame. An important element in proof is the reaction of the party when deception or error is detected. Boccafola mentions two possible examples, one concerning infertility, mentioned specifically in Canon 1084 §3, a case that interestingly involved deception perpetrated by the Respondent’s mother, and another concerning concealment of mental illness.
In Jurist LVI (1996) p.557-585 John Johnson looks in somewhat greater detail at Rotal handling of deceit cases, ‘Fraud and deceit in the Roman Rota’. No sentences available to him at that time unequivocally stated the retroactivity of the ground of deceit, rather the contrary, but several allow the error arising to constitute a canonical basis for nullity. On the other hand there are several sentences that intimate that deceit renders consent invalid by virtue of natural law. Of these, Burke’s is the clearest, whereas a decision by Serrano Ruiz is somewhat confusing, arguing that while Canon 1098 is positive legislation and so cannot be applied to marriages before 1983, deceitful consent is of its nature invalidating. A decision by De Lanversin appears to favour this position, through a favourable citation of Faltin, but does not explore it in detail. When it comes to possible areas of deceit, Burke takes the strictest approach arguing that such a quality must be both objectively serious,
and have some relationship with the essential aspects of marriage. Other judges have not insisted on one or other of these. The areas considered in such cases are much the same as those mentioned above under error, but also include AIDS, pretended affection for children of a former marriage, homosexuality and membership of a subversive group. The fact that a particular quality, or its absence had the effect of disrupting married life seems to be given greater weight than a purely theoretical approach.
A recent issue of MDGBI (XL (2004)) contains three cases tried on the ground of deceit. The first, a Southwark case coram Vidler examines the canonical issues in some depth and comes up with a very useful list of questions to be asked in such a case. The Respondent concealed two of his previous three civil marriages, not to mention financial problems and other matters. The wedding was celebrated in 1991, so the question of retroactivity does not apply. The second case, from Nottingham coram Woodall, was also affirmative. The judges here strike out into new territory. The deception concerned willingness for any children to be brought up as Catholics. The argument ties this in with the ‘bonum prolis’, exclusion of which is also alleged. Reference is made to the 1988 response from the Pontifical Commission for the Interpretation of Legislative Texts, and it is argued that the religious upbringing of children is a matter of divine/natural law, not positive legislation, and so can be applied to a marriage contracted before 1983 (June 1966). The third case, Dublin coram McGrath, involves someone who concealed his habitual frequenting of prostitutes. This is clearly objectively serious and with a bearing on the bonum fidei. There are also three cases in MDGBI 2005, concerning infertility in the woman, paedophilia and lesbianism.
Error determining the will
Rather less has been written on Canon 1099, error concerning the unity, indissolubility or sacramental dignity of marriage, in so far as it goes beyond simple error and determines the will. Stankiewicz wrote an article ‘De errore voluntatem determinante (Canon 1099) iuxta rotalem iurisprudentiam’ in Periodica LXXIX (1990) p. 441-494. One also finds, ‘L’errore di diritto nel consenso matrimonial e la sua autonomia giuridica’ Periodica LXXXIII (1994) p. 635-668 again by Stankiewicz, and Grocholewski, ‘De errore circa matrimonii unitatem, indissolubilitatem et sacramentale dignitatem’ in Periodica LXXXIV (1995) p.395-418. The first of Stankiewicz’s articles investigates the development of the concept of ‘error pervicax’ which gave rise to the formulation of Canon 1099 in the 1983 Code. It was rather too early to find cases where the marriage had taken place after 1983, but the cases after that date make it clear that the earlier jurisprudence continues to apply. The second of Stankiewicz’s articles is theoretical in approach, simply referring at the end to one decision in which he has judged such a case (25th April 1991, published in Monitor Ecclesiasticus CXVIII (1993) p.388). Grocholewski casts rather a cold eye on the whole approach, warning of the danger of declaring most non-Catholic marriages null. While prepared to entertain such error with regard to indissolubility or fidelity, he is sceptical about extending it to sacramentality. Again the argumentation is theoretical rather than from jurisprudence.
Fortunately, there has been a more accessible and positive article printed recently in this Newsletter (no.149, March 2007, pp.38-53) by Fr Anthony Kerin, ‘Error determining the will’. In this he sets out the theoretical basis, and the development of a view, even in Rotal jurisprudence, that one can no longer presume a prevailing general intention to marry as God wills. He discusses the relationship between erroneous views and implicit simulation. Rotal jurisprudence is not unanimous on how error determining the will invalidates consent. Some consider it as a form of partial simulation, but it is difficult to see how an unconscious exclusion can constitute a positive act of the will. Others see it as a form of conditioned consent. He cites a decision coram Masala dated 19th February 1985 to the effect that it is not so much error that vitiates, as the will vitiated by error. He mentions a Montevideo case coram Stankiewicz of 25th April 1991 that considered the relationship between simulation and error determining the will in the area of indissolubility (Monitor Ecclesiasticus 1993 p.377-382). The Rota itself seems uncertain. One case, dating from 1977 in first instance, was given a negative decision on contra bonum sacramenti , but coram Stankiewicz on 23rd July 1982 was given an affirmative decision on total simulation, arising from implicit simulation (hippy culture). At third instance Davino (20th March 1985) gave equivalent conformity on grave lack of discretionary judgement!
Such cases have not been frequent in MDGBI, but one was printed in 2003 edition, a Southwark case coram Hatton-Hall, n.18. This derives its argumentation in part from Pope John Paul II’s address to the Roman Rota of 21st January 2000, and partly from the article by Stankiewicz in Periodica LXXIX (1990) and an earlier article by Boccafola on ‘Error concerning sacramental dignity’ in Forum VII (1996) p.325. The Petitioner had rejected her Catholic Faith, but married in Church to please her parents. The Respondent went along with this despite his own lack of belief and preference for cohabitation. The decision was affirmative in both parties.
Not a great deal has been written on invalidity arising from a condition. This is rather surprising since, while the scenario might be rare, the 1983 Code brought a clear innovation with regard to future conditions. Whereas under the 1917 Code such a condition suspended the validity of the marriage until the condition was verified, Canon 1102 §1 of the present Code declares all marriages subject to a future condition invalid. Clearly this is a disposition of positive ecclesiastical law. A Rotal decision coram Boccafola of 27th March 1987 was published in Forum I (1993). More recently a decision of the Maltese Tribunal coram Bajada dated 30th January 1998 (Forum IX 2/98, 169-191: Maltese Ecclesiastical Tribunal of First Instance: Nullity of Marriage. Before Bajada. Definitive Sentence 30 January 1998 explores this ground. Conditions can be suspensive in intention, i.e. intending to bind oneself if verified, or resolutive, rendering consent null if not verified. Such a condition arises when someone places more weight on the fulfilment of the condition than marriage itself. Here there is no free gift of self, or complete acceptance of the other. This was the rationale behind barring all marriages contracted on the basis of a future condition. Such a condition should not be seen as a formality, and does not need to be communicated to the other party. It can be implicit, but must be provable. It no longer matters whether or not the condition is fulfilled. However, a true future condition must be distinguished from postulates, prerequisites, causes or modes that do not affect consent. The sine qua non is establishing the importance of the circumstance which is the subject of the condition to the party, and the reaction to its non-fulfilment. Usually a condition is a manifestation of some kind of doubt, although this might arise from an anxious personality rather than for objective reasons. The case in question concerned an alleged condition against children until the Respondent reformed his rackety and unreliable character, but the decision was negative.
There are no cases of conditioned consent in MDGBI 2005, but two in MDGBI 2004. The first of these, a Dublin case coram Kavanagh of 30th March 2004 (n.16) concerned differences over where the couple would live. The petitioner expected to live in Ireland, but the respondent was set on returning to Australia. There is an extensive consideration of the legal principles involved. Superficially the Petitioner says that there was no condition, but the reason for this is that she had extracted a commitment to live in Ireland from him, the very fact of which demonstrated a conditioned consent. What was lacking was not a condition, but, at the time of the wedding, doubt as to its fulfilment. The second case (n.17) also comes from Dublin, coram McGrath 27th May 2004, but the law section is not as extensive. There was conflict between the families over the wedding arrangements, and the condition alleged was over the upbringing of children, the boys to follow the Catholic Faith of the father, the girls to be brought up in the Church of Ireland.
Defect of Form
Defect of form is commonly understood to embrace the lack of canonical form in a marriage attempted by someone bound to it, but strictly this is omission of the canonical form rather than defect, and not even the documentary process is required to prove freedom to marry, but a purely administrative one. Defect of canonical form means the lack of a constitutive element or solemnity when the canonical form has taken place, e.g. lack of witnesses, or of delegation on the part of the celebrant. Cases before the Rota most commonly involve the latter scenario, and there have been several of interest in recent years. One case, coram Monier of 26th March 2004, ratifying an earlier one of 12th June 2003, concerned a priest related to one of the parties who turned up at the wedding, and was allowed by the delegated religious to officiate. The parish priest was not present, and although he subsequently signed the form granting delegation, did not know this priest was to officiate at the time of the wedding. Since the celebrant had no status in the parish, the question of common error did not arise. A rather different scenario receives a non constat from Monier, and appears to give complete licence to Bishops. This case was judged on 23rd November 2000, and appears in Studies in Canon Law I (2005) 447-461. The couple had asked the parish priest that their wedding be conducted by a visiting bishop, a family friend, and he had agreed orally. However, there was nothing in writing to show a grant of delegation, either on the form, or in the register. The parish priest had been absent, and the curate did no more than welcome the Bishop, presuming all was in order. In fact there was insufficient evidence to establish lack of delegation with moral certainty, but, more significantly, the turnus argues that in the case of a Bishop, common error applies, even though he had no status in the parish. It is not ignorance but error when the faithful assume that Bishops because of their dignity can assist at marriages everywhere.
MDGBI XL (2004) contains one decision on lack of canonical form, decided by the Scottish National Tribunal on 26th April 2004. The wedding had taken place in a hospital chapel, not infrequently used for Catholic weddings, but the marriage preparations had taken place elsewhere. A friend was asked to officiate. After the marriage failed the Tribunal of the place of marriage preparation declared the marriage null by reason of defect of form through the documentary process, but the Respondent challenged this. The decision was declared null, and the case submitted to the Scottish Tribunal. The decision considers the questions of explicit and implicit delegation and of common error. The argumentation is quite similar to that above. While there is no proof of delegation, the priest did not just turn up; arrangements had been made in advance, and lack of delegation was not proven. The judges also argue that most, if not all, present would assume the marriage to be valid, and thus common error is verified.
A number of recent articles have examined this question in recent years, most notably Clarence Hettinger: ME CXXIV 3/99, 554-568: C. Hettinger: The Law of Invalid Validation in U.S. Tribunals. There were also comments in this Newsletter: CLSN 124/00, 11-17: G. Read: Invalid Convalidation; CLSN 129/02, 7-15: Address of the Dean of Rota to the Holy Father and Address of Pope John Paul II to the Rota, 28 January 2002; CLSN 129/02, 16-19: G. Read: Comment on Pope's Address. These addressed the question of the kind of consent required to convalidate, viz. A new act of consent based on a knowledge and acceptance of the invalidity of the previous exchange of consent. In a recent comment and article Urbano Navarrete re-examines the issues in the light of a decree of the Signatura Apostolica: Periodica XCVI (2007) 289-306, Commentario and A pronosito del decreto del S.T. della Segnatura Apostolica del 23 novembre 2005, ibid. 307-361. The decree (ibid. 285-288) granted a new hearing before the Rota on the basis that the very participation in a convalidation ceremony created a presumption that the parties in some sense understood that their previous civil marriage was invalid until the opposite had been established through the usual proofs. In his lengthy analysis Navarrete considers the background, and also the Rotal cases studied by Hettinger. The cases adjudicated prior to 1983 did not consider civil marriages, but those null because of impediments, sanation or total simulation, apart from one coram Rogers, which simply presumed that convalidation applied to civil unions. Later considerations were shaped by the formulation of lower tribunals in terms of invalid convalidation. Funghini and Turnaturi favour the applicability of these norms, whereas Boccafola gave a negative decision. Navarrete takes the line that Canon 1160 is not applicable to civil marriages, but only defect of form in the strict sense. Complete omission of canonical form gives rise not to a null marriage, but a non-existent one. Hence there is no need for formal process to establish freedom to marry, but also the lack of anything to convalidate. Instead one should speak simply of the canonical marriage, something that simply requires true exchange of consent, not knowledge or acceptance of the invalidity of the previous exchange of consent. It is not reasonable and psychologically impossible to expect someone, as it were, to go back to square one in consenting. That they have come forward to consent to something they recognise in some sense as defective amounts to virtual consent, and this suffices for validity. It will be interesting to see the eventual Rotal decision in this case, and whether the turnus accepts Navarrete’s argumentation. Clearly, though, other tribunals need a certain amount of circumspection in handling such cases, and to establish the nature of the consent offered, not making easy presumptions about the understanding of non-Catholics.
MDGBI XL (2004) contains four decisions on this ground, a sign that it has certainly caught on in these islands. All four are affirmative and involve the convalidation of civil marriages, rather than defect of form in the strict sense, or impediments. In two cases there seems to have been little explanation of what was involved, or understanding of the need for fresh consent at least on the part of the non-Catholic. In the other two it appears that the priest spoke simply of blessing an existing union without even referring to an exchange of consent.
Force and Fear
Force and fear has to some extent been sidelined in recent years in favour of grave lack of discretionary judgement. In some ways this is understandable since, in addition to internal agitation of mind, certain external elements need to be established. On the other hand it remains a separate ground and with justification, even if at times it is not easy to establish whether fear, grave lack of discretionary judgement, inability to assume, or simulation is the correct heading to apply. Rotal decisions in recent years have shown greater attention to the relationship between these possible grounds, rather than isolating them as mutually incompatible. In a decision dated 25th October 2001 (Forum XVII (2006) 150-195) Stankiewicz looks at the relationship between reverential fear, exclusion of indissolubility, and inability to assume. The case involved a man who married a woman when she became pregnant after a ten year courtship, complicated by the fact that she had lost her father, and also one of her legs in a car accident, and pressure from her family. Stankiewicz distinguishes between a parental right to provide guidance and coercion. Canon 219 guarantees a right of freedom from coercion in choosing one’s state of life. Fear of parental indignation is classically described as reverential fear. This fear need not be grave – common fear suffices – but it must not be light, and in most cases the law presumes that parental indignation evaporates pretty quickly, particularly today, when much less parental authority is exercised towards children. More is required than simply complying with parental wishes. A pattern of pressure over a period of time and actual impact on the psychological state of the person needs to be shown. Aversion is the principal proof, alongside that of external pressure. Fear can also be a motivation for simulation, whether total or partial. In this case, however, the evidence pointed not to coercion or simulation, but a dependent and insecure personality sufficiently anomalous to give rise to an affirmative decision on inability.
MDGBI 2004 contains three cases with grounds of force and fear (nn.9-11). MDGBI 2005 contains two such cases (nn.24-25). However, in effect all of these are cases of reverential fear rather than threats of violence or aggression. Most of the cases involve premarital pregnancy, but n.25 (2005) is unusual in that it was a question of minimizing a violently hostile reaction to intimations of a vocation to the religious life.
A few years ago the Apostolic Signatura questioned Tribunals where almost all cases were resolved on the basis of Canon 1095. I recall on a visit to Rome with other judicial vicars from England and Wales the point was made that while many people suffer from cancer, there are other causes of death! Whether or not as a result of this stimulus, there is a greater interest today in the many other grounds for nullity. The brief survey above shows that there has been more interest in some areas than others. From the point of view of MDGBI one of the difficulties is the frequent use of lightly adapted standard law sections. This certainly saves time, and may be adequate for purpose, but does not contribute to our growth in understanding of the law, and realisation of unsuspected possibilities of helping resolve difficult cases. Those who take the trouble to think through the issues and write carefully considered law sections have so much to offer us, and we must thank them for their time and effort, as we thank those who make them available to us through MDGBI or periodicals. In particular we must thank the auditors of the Rota for all they contribute, especially those who make sentences available for study before their eventual publication in the Rotal Decisions. If decisions take a long time to arrive after the judgement session this is in no small measure due to the care needed in writing a sentence that will serve as a model for others.
Monsignor Gordon Read