The Gazette 1978

SEPTEMBER 1978,

GAZETTE

also covers the far more serious and destructive conditions such as schizophrenia, in its various forms; paranoia; manic depression, general paralysis of the insane and other serious mental disorders. The basic question that faces a marriage tribunal here is whether the person concerned had the ability to consent, or whether the condition from which he suffered removed his ability to make an act of consent — i.e. whether the person was able to exercise freely his will to consent to the marriage in question. Once insanity has been established as having existed both before and after the marriage, it may be presumed that the same state of insanity existed at the time of the marriage. On the other hand, mental derangement appearing after the marriage does not necessarily mean that the same illness, in fact, existed before the marriage and this must be proved. In this area it is clear that ecclesiastical judges must be guided by the opinions provided by psychiatric experts, but the decision as to the validity of the marriage rests with the judges and not with the medical experts. B. Lack of Due Discretion. This concept itself goes back many centuries. The notion of due discretion refers to a certain judgmental ability concerning the act of (and the obligations attached to) marriage. There is a difference between knowing something, on the one hand, and being able to evaluate that same thing on the other hand. To know some fact is quite different from appreciating the implications of that fact. This ability to appreciate the implications of marriage comes, evidently, with experience and a degree of emotional and psychological maturity. Without this required degree of maturity the person is as yet quite unable to make informed or critical decisions; and as such the Church does not regard such a person as being able at that stage to enter into marriage. This is an extremely grey area. Some cases of lack of due discretion are very clear and straightforward. Lack of ability to evaluate or assess the obligations to be undertaken in marriage is quite evident. However, more often it is extremely difficult for a tribunal to weigh up the situation accurately. One of the ways in which the situation may become clearer is to scrutinise carefully the cause of the alleged lack of due discretion. It might be caused simply and solely by sheer immaturity, emotional and psychological, as might be the case with a very young boy or girl. The evidence for this may well show the true situation prior to the marriage; as well as the behavioural pattern afterwards — all of which may point very clearly to the lack of this required evaluative ability. However, in another case the person may already be in his middle or late twenties and yet still be seriously immature, and in such a case the tribunal may be assisted by psychiatry. One of the areas of great development made in psychiatry is in the field of what is called the "personality disorder". This is not insanity, does not involve psychosis, and the person in question knows exactly what he is doing. At the same time he suffers from a very severe case of what is considered to be constitutional immaturity, i.e. one which years will not alter at least, for the better. Sometimes evidence in a case will show that the person was so crippled by the personality disorder that he was quite unable to evaluate or assess what is involved in the obligation undertaken in marriage. Thus here the lack of due discretion is caused by an identifliable psychiatric condition; if the condition 139

opposed to internal fears of the person himself but this in no way prejudices the possibility of someone alleging that obsessional or psychological fear induced him to marry. In those circumstances the ground on which nullity would be sought might be insanity or a similar mental affliction. D. Ignorance of the Nature of Marriage. Nowadays this ground of nullity is in reality non- existent. A situation where this might be considered would more likely be dealt with by a party seeking a dispensation of the marriage on the grounds of non- consummation. E. Error of Person or Error of Quality of Person. "Error" is defined in Canon Law as the false judgement of an object. There are two forms of error with which the Code is concerned in connection with marriage. One is the "error of person", in which a man marries the wrong person. The other is an error of, or about, the quality of a person but which in itself amounts to an error of the person. Error of person is quite straightforward. The Code states that an error concerning the quality of a person does not invalidate the marriage unless the error about this quality can be considered to amount to an error about the person. With recent developments in the Church's jurisprudence, marriage is now seen in terms of a personal relationship between two people. Thus it would be true to say that a person is specified as this particular person as a result of his own personal history and background. Where there is an error concerning the whole of this, then it might be said that such an error (of quality) may amount to an error of person. For example, where a girl entered into marriage with a man who turned out eventually to have been civilly married previously (though canonically free) with children by his first union, then she could claim that these facts pointed to him as being a different person to the one she thought she had married. She thought she had married a man who was single with no ties, when she was in fact marrying a man who had been married before. Where the quality of the person (concerning which there is error) is so significant and substantial as to make him a different person without such a quality, then there would be grounds for a nullity petition. 3. The Grounds for Nullity — Defect in Consent (Amentia, lack ofdue discretion and Inability to fulfil the obligations of marriage) The field of mental disorder may be regarded as the most complicated area of nullity grounds. This is dealt with here under three headings, namely, (a) amentia, which has a meaning far wider than insanity and covers many more conditions, (b) "lack of due discretion", which does not involve amentia, and, (c) inability to fulfil the obligations of marriage. A. Amentia: This is a latin term which refers to a person not being in a position to bring his whole mind to a decision, to making the act of consent. Where a person does not eiyoy the full advertence of his mind, this is regarded as a form of amentia; and in this condition a person is not regarded as being able to make an act of consent (or at least make it properly); consequently a marriage which takes place in such circumstances is regarded as null and void. Amentia