Defects of Consent
Grounds of Marriage Nullity
The Defects of Consent of Canon 1095
Canon 1095 is new to the Code of Canon Law and attempts to codify developments in jurisprudence over the last several decades concerning the so-called “psychological grounds.” It is an extremely important text, which is reproduced here in full:
The following are incapable of contracting marriage:
1° those who lack the sufficient use of reason;
2° those who suffer from a grave defect of discretion of judgment concerning the essential matrimonial rights and duties mutually to be handed over and accepted;
3° those who are not able to assume the essential obligations of marriage for causes of a psychic nature.
This canon describes three separate, but related, grounds. First and of critical importance: all of them are seen as a species of incapacity. Nullity is rooted not in difficulty but in a genuine inability to contract marriage for one of these three reasons. It is not enough to show, for example, that discretion was not used. It must be shown that one or both of the parties did not possess that ability or were seriously impaired or deprived of the use of the discretionary faculty at the time of the exchange of marital consent.
Second, the incapacity described in the canon is very specific, involving the question of marriage, not the entrance into a civil contract or any other decision. Thus, the required discretion or capacity to assume is that which is proportionate to the lifetime commitment of marriage.
Lack of Sufficient Use of Reason (c. 1095, 1°): The first of the three grounds involves the most severe impairment. Basically, it means that the party did not know what he or she was doing in exchanging consent. The cause of a Lack of Sufficient Use of Reason could be serious developmental disabilities that have left a person without basic reasoning ability. The cause could be certain types of mental illnesses, such as schizophrenia, severe enough to keep a person from understanding the nature of marriage. The cause could also involve transitory factors such as a state of intoxication or drug impairment at the time of consent.
Grave Defect of Discretion of Judgment (c. 1095, 2°): The second ground, popularly but imprecisely called “lack of due discretion,” centers not on basic reasoning ability, but on the ability to make a critical judgment. The canon is worded very carefully. The discretion involved concerns the “essential matrimonial rights and duties mutually to be handed over and accepted.” People’s ability to assess themselves, their prospective spouses, and the intimate partnership of marriage itself is at issue. In other words, the discretionary ability must be proportionate to the nature of marriage, not to some other object. For nullity, it is not enough to show that the decision to marry was foolish, or that people made a “mistake.” There must be a grave defect that rendered the person incapable of choosing more wisely. The ability to make a responsible judgment can be impaired by pressures that rob a person of some freedom, by emotional turmoil brought about by circumstances, or by deeper psychological problems. It is a practical judgment and not merely an abstract judgment that must be made. A critical judgment involves the ability to decide regarding this marriage to this partner under these circumstances. The jurisprudence regarding the exact meaning and limits of grave defect of discretion is still developing.
Incapacity to Assume Essential Marital Obligations (c. 1095, 3°): This third ground involves a radical incapacity to assume the essential obligations of marriage due to “causes of a psychic nature” (a deliberately vague phrase). If a person cannot fulfill the obligations, then he or she cannot assume them. This is based on an ancient principle of philosophy, canon law and moral theology that “you cannot give what you do not have.” For this ground, the emphasis is no longer on basic understanding or critical judgment; it is on living out the commitment. This does not mean every failure to fulfill marital obligations is a sign of nullity. There needs to be an underlying inability (not merely a great difficulty), and that inability must be rooted in psychological causes. Again, the jurisprudence is still struggling and developing.
It is the judge’s responsibility to assess whether the canonical “tests” for the presence of one or more of these incapacities is present. It is the psychological expert who often provides both the raw material and the framework for understanding that allow the judge to make such a determination well.
Defects of Consent (Other Than Canon 1095)
There are three categories of marriage nullity: lack or defect of form, impediments, and defects of consent. It is the last of these that always requires formal trials of marriage nullity. The following briefly describes the various ways in which the Church views consent as defective and, hence, the union established by that consent invalid.
IGNORANCE (canon 1096): The ignorance is of a carefully limited sort. The law states that for the consent to be valid, the parties “must be at least not ignorant that marriage is a permanent partnership between a man and a woman ordered to the procreation of offspring by means of some sexual cooperation.” The law presumes that this knowledge exists after puberty. What is required is a rudimentary knowledge that marriage establishes: 1) a lifelong partnership, 2) involving parenthood as an end, and that 3) some sort of sexual relationship is functionally linked to that parenthood. Classically understood, the focus was on ignorance of sexuality. The required knowledge did not need to be detailed; nor did it need to be medically or anatomically fully accurate. Current jurisprudence is exploring other elements of ignorance, especially connected with marriage as a true and permanent partnership. The ground still remains rarely used and difficult to prove.
ERROR OF PERSON (canon 1097): At its origin, this involved cases of
mistaken identity (e.g., Jacob's marriage to Leah instead of Rachel in
Genesis 29). But over time the jurisprudence developed the idea of an
error concerning a quality of a person that was so serious that it amounted
to an error concerning the person. The law requires that the quality
be real, present at the time of consent, and something that is “directly and principally
intended.” Thus, for example, a person might intend to marry someone
who had never been in any kind of marriage (even an invalid or common
law one) before. This quality is so important that the person would not
consider marriage to anyone who did not have this quality. Then if it
later came to light that the partner had been in a prior union, this
ground of nullity could apply. The nature of the quality must be something
that is serious, but many cultural and subjective factors can render
serious a quality that to someone else might seem insignificant.
DOLUS or FRAUD (canon 1098): If a deception involving some genuine quality
of a person significant to marriage was perpetrated precisely in order
to gain matrimonial consent, this invalidates the marriage. “Dolus” at
canon law is very similar, although not identical, to the English concept
of fraud. An example would be a homosexually oriented individual who,
fearing that an intended spouse might otherwise back out of a proposed
marriage, conceals this fact from his or her intended in order to obtain
his or her consent to marriage. Dolus is new as a separate ground, but
in the 1917 Code and earlier jurisprudence it had been treated as part
of the ground of error of person.
DETERMINlNG ERROR (canon 1099): The error at issue must be a serious one concerning: 1) unity, i.e. the requirement of faithful monogamy, or 2) indissolubility, or 3) the sacramental dignity of marriage. The error must “determine the will.” In other words, it must be more than theoretical or speculative but must have become so much a part of the person that he or she can only give consent not to marriage as defined by God but to his or her erroneous concept of marriage. There has been much development in the jurisprudence in this area. Cultural and social factors, family background, and philosophical or religious commitments are especially powerful in creating the kind of deep-rooted error that can determine the will.
SIMULATION (canon 1101): There are several subdivisions within this ground, which is a heading of nullity that has seen and is continuing to sec new developments in jurisprudence. The canon starts by establishing the legal presumption that people are sincere, mean what they say when exchanging wedding vows, and thus accomplish what they intend by those words. But the canon goes on to say that if either party has a positive intention (not merely an omission) excluding marriage itself or some essential element or property of marriage, then the union is not valid. That positive exclusion may be made explicitly, but far more commonly it is implicit. What happens in the various forms of simulation is that people substitute their own (or society's) definition of marriage for that as understood and taught by the Church. Marriage has a content that the parties do not create but God does. When this ground is evident, the one simulating has tried to substitute their own content for that of the Church, entering a limited, conjugal-like union, but not a genuine marriage. Finally, the intention must be present at the time vows are exchanged. A “change of mind” later in the common life may be a serious violation of the vows, but it is not simulation. A look at the subcategories will help:
a) Total Simulation: This involves the exclusion of marriage altogether – that is, of what the Church understands marriage to be. For example, if a party exchanges wedding vows solely for immigration purposes but not to create a true marital partnership, then the simulation is total.
b) Simulation contra bonum prolis: This intention may, but need not, involve an absolute refusal ever to have children. Perhaps more commonly the exclusion might be a matter of one of the parties reserving to him or her self the sole power to determine, without respect to the other party's rights or wishes, whether or not to have children or unilaterally to limit the number of children. The Church teaches that in a genuine marriage the parties exchange certain rights, and one such right is that of openness to children in the union. An intention in which one partner denies this right of the other is invalidating. A situation in which the two parties mutually agree to limit the number of children or delay having children is not an invalidating exclusion unless that agreement is understood by one of the parties to supersede the right of the other to change his or her mind. Since marriage is ordained not only for the procreation but also for the education of children, the jurisprudence recognizes the invalidating consequences of an intention against the education of children.
c) Simulation contra bonum fidei: One of the essential properties of marriage specified by canon 1056 is marital unity – that is, fidelity. An intention that excludes this essential property invalidates the consent. It is an attempt to enter into a union in which the party or parties create their own rules for it rather than accept marriage itself as God created it. The simple fact of infidelity in a union is not the same as simulation against fidelity; adultery is not a ground of nullity. It is a matter of a person intending, at the time of exchanging vows, to reserve the right to seek other sexual partners (either heterosexual or homosexual). In a society influenced by the “sexual revolution,” “open marriage,” and the exaltation of personal “fulfillment” and gratification, such intentions contrary to fidelity occur all too commonly.
d) Simulation contra bonum sacramenti: Another essential property of marriage is indissolubility (canon 1056). Marriage is a life-long commitment. Hence, an intention to enter a “trial marriage” or an attitude that sees marital permanence as something merely desirable or to be hoped for, but not of the essence of the commitment, vitiates the consent. In our cultural circumstances, attitudes of this kind do pervade the thinking of many people.
e) Simulation contra bonum coniugum: This is a developing area in jurisprudence, one rooted in the teaching of Vatican II that marriage is a “partnership of the whole of life … ordered by its nature to the good of the spouses …” (canon 1055, §1). This is not a right to perfection from a spouse, but that the spouse be dedicated to the good of his or her partner (and not merely to his or her own good). When a man intends to obtain a maid instead of a partner, he simulates contra bonum coniugum. When a woman exchanges vows but withholds the commitment to sacrifice for the other, she simulates contra bonum coniugum.
CONDITIONED CONSENT (canon 1102): There are several types of conditioned consent. A condition regarding the future invalidates the marriage. Thus, for example, exchanging vows with the condition that the other party finish medical school and work as a doctor invalidates the consent. A condition regarding the past or present may or may not invalidate depending on the existence of the matter which is the subject of the condition. An example might be: “I marry you under the condition that you have the capacity to have children.”
FORCE OR FEAR (canon 1103): If a person is compelled to choose marriage to escape the force imposed by some outside agent, the consent is invalid. A “shotgun wedding” is a classic example. The ground may also exist when a person is so fearful that he or she feels there is no choice but to marry. In this circumstance the person's freedom is overwhelmed, not necessarily by the direct application of an external force, but by an intense fear of the disastrous consequences that will likely ensue unless he or she marries.
DEFECTIVE CONVALIDATION (canons 1156-1160): When a Catholic exchanges vows outside of the Catholic Church and later has that union “convalidated” (the popular but inadequate term is “blessed”), there are conditions which both parties must fulfill if the validation is to be effective. Those requirements differ depending on a number of factors. Also, the requirements of the 1917 Code and the current Code also differ; each marriage is judged in light of the legislation in force at the time of the exchange of vows. Whenever the union in question was a validation, especially if one of the parties was baptized but not a Catholic, this ground is a possibility.
Whatever the ground, if the marriage in question was a convalidation, there is an important principle to bear in mind. The focus of the Tribunal is on the exchange of consent at the time of the convalidation, not at the time of the initial exchange of vows. For example, the parties may very well have lacked due discretion when they exchanged vows as teenagers under pressure of a pregnancy, but may have had due discretion when the union was convalidated fifteen years later. The lack of discretion at the first exchange of vows is not a basis of nullity. In responding to the Tribunal's questionnaire, petitioners need to tell the story of what led to the initial exchange of vows, but the primary focus should be on what was happening at the time of the convalidation.
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