The Gazette 1978

SEPTEMBER 1978,

GAZETTE

nullity and they can also, although not necessarily, be at the root of a person's inability to assume the obligations of marriage. However, it will also be quite clear that the evidence collected concerning these states must, where possible, show the character and personality of the person prior to the marriage and detail the precise behavioural pattern after the marriage. Moreover, the statements of the petitioner must be clearly supported and corroborated by such evidence. 4. The Grounds for Nullity — Diriment Impediments A. General: An impediment is some fact or situation which prohibits two persons from marrying. Some of these impediments merely prohibit a couple from marrying although, if they did marry, the union would probably be valid although it would be unlawful. There are other impediments, called "diriment impediments", which not only prohibit certain couples from marrying, but also mean that any marriage which does take place in spite of the impediment would be null and void. Some impediments are regarded as having their origin in the Divine Law, whereas others are regarded as originating from ecclesiastical law. Before a marriage can take place in a Catholic Church there is what is called a pre-nuptial enquiry form to be completed by each party, which is designed to find out whether any impediments exist. Where an impediment comes to light, provided it is of a kind which can be dispensed, and is, in fact, dispensed, then the marriage can validly take place in the Church. If, however, the marriage took place where an impediment existing was not noticed or disclosed at the time there are two possible courses open. If the impediment is one which can be dispensed, the couple have the option of seeking the dispensation and then of renewing their consent (before a priest and two witnesses — as in the case of the normal marriage) or they may separate. If the impediment is a diriment impediment, which cannot be dispensed, then the couple would not have the alternative of renewing their consent and remaining together. The word "dispensation" means the relaxation of the law in a particular case by permission being granted by the proper authority and which thereby allows the valid celebration of marriage. There are certain impediments from which no dispensation can be granted, such as the diriment impediment of a particular degree of consanguinity, which prevents a man marrying his sister. Only impediments of ecclesiastical law origin, as opposed to the Divine Law, can be dispensed if the reasons brought forward are good enough. Where the matter of diriment impediments is also relevant is that some of these impediments are regarded as applying to non-Catholics. Consequently, if two non- Catholics marry, but some impediment exists which invalidates their marriage, then the marriage can be declared null and void. Such a situation could arise where one of the parties to that marriage was at a later time desirous of marrying a Catholic, whether or not that . party himself became a Catholic. As will be considered in detail later, there are two kinds of nullity processes — the formal nullity process, which is the kind used for cases in which it is alleged that there was some defective consent and also for establishing the

is serious enough then the marriage entered into by this person would be regarded as null and void. The kind of psychiatric condition which might produce such a lack of due discretion would extend to the condition of a psychopath (in the clinical rather than the criminal sense); to an hysterical personality disorder; alcoholism of some great severity; male and (less often) female homosexuality; obsessional states; depression, etc. It must be appreciated that the psychiatric tag given to some conditions is not and never can be the ground for nullity as such. One of the grounds for nullity here might be the lack of due discretion which is caused by a psychiatric condition, i.e. what is being alleged is the lack of an informed act of consent and not a psychiatric state. The decision of a tribunal turns on its consideration of the person's discretionary ability of judgmental capacity, and not specifically upon whether the person is an hysteric or a psychopath. It should also be pointed out that this facility to make the necessary critical judgment or evaluation refers specifically to the obligations involved in marriage. A person may have superb judgment and shrewdness in connection with his business ventures, and yet have no such ability or evaluative capacity with regard to his marriage. The experience of the ecclesiastical courts has shown that this is something which cuts right across all barriers of class, profession, colour and social scale. C. The Inability to Assume the Obligations of Marriage This is a ground for nullity which in some respects is simpler for the judges of any tribunal to assess because the proof required very much relates to the behavioural pattern of the person in question during the period after the marriage (as much as before it). The principle on which this ground is based is that "No-one is bound to the impossible". The idea is that there are some persons who cannot undertake to assume the responsibilities and obligations of marriage and as such cannot be regarded as marrying validly. For example, a girl diagnosed with certainty as a nymphomaniac met a young man with whom she fell in love and she thought this new experience had cured her condition; her psychiatrist did not agree with her and warned her that what she took to be a cure was merely a remission of her symptoms. She paid no attention to this advice and married. Within three months the condition had re-asserted itself and the marriage broke down and she was totally unable to be faithful to her husband. This girl was incapable of fidelity, i.e. one of the fundamental obligations of marriage; consequently, she was incapable of marriage itself. The obligations that are involved here initially, are those arising from the essential qualities of permanence, fidelity and openness to children. But the Church teaches that marriage is not only a contract (with its attendant rights and corresponding obligations), but it is also a relationship between two persons — the closest, most intimate of all possible relationships — and requires an ability on the part of both parties to form and sustain such a relationship. It cannot be simply said that a marriage which is unhappy is null and void, because what the tribunal is looking for in such a case is the proved inability to perform and sustain a recognisable marital relationship. The cause of this inability is often some serious psychosexual or psychiatric problem. As already mentioned, psychopathy, hysteria and homosexuality can be at the root of the lack of due discretion as a ground for

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