The Gazette 1990

GAZETTE

SEPTEMBER 1990

mining the validity of marriage than our civil courts, although progress is now being made in the latter. Formerly decrees of nullity in ecclesiastical courts were only granted if there was some obvious defect in the contract, for example, if coercion could be proved, or if one of the parties was unable to undertake the responsibilities of marriage in such an obvious way as not to be able to consumate the marriage. In more recent times the concept of "due discretion" has been developed and enlarged. A canon lawyer defines the concept as follows:- "In Law 'Due discretion' refers to a certain capacity which is necessary in any individual who would contract marriage. It is a two fold capacity: first, the capacity to appreciate adequately what marriage is - that is, to be able not merely to define marriage in purely theoretical terms, but to understand in a meaningful way what it is that marriage involves in practical terms; and, secondly, acapacity to undertake and to sustain the responsibilites and the obligations which must be fulfilled if a real marriage is to exist between any two given people. A person who lacks either element of this twofold capacity is, within ecclesiastical law, incapable of contracting avalid marriage." When ecclesiastical judges are faced with the problem of deciding whether or not a given individual has the capacity which by the law of nature is a requisite for marriage, they are not primarily concerned with the precise clinical "tag" which a medical or psychiatric expert may put upon a given individual. Their primary concern is to ask the question "Was this individual, at the time of his marriage, really capable of carrying out the responsibilities and the obligations which his marriage would necessarily involve?" Ecclesiastical judges must, therefore, address themselves to the question as to "what in fact are the essential obligations and res- ponsibilities of the married state". Within this context ecclesiastical judges are instructed that they should obtain and carefully assess the opinion of psychiatric experts. The Reverend Augustine Mendonca from the Faculty of Canon Law, St. Paul University,

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Ottawa, summarises the situation in an article on Schizophrenia and Nullity of Marriage in Studia Canonica 1983 as follows:- "For a long time, matrimonial juris- prudence centered its enquiry into a given case on an individual's capacity to consent. The jurisprud- ence which developed through the decades following the promulga- tion of the 1917 Code, contains an impressive philosophical analysis of the act of consent. However, the past two decades have witnessed a shift in emphasis within matri- monial jurisprudence which con- siders not only the 'consent' aspect of marriage, but also marriage as a living human, interpersonal reality.

Thus, there is -also a shift in emphasis in relating the effect of psychopathology to married life. Mental illnesses and personality disorders are seen as affecting not only the act of consent but also the different aspects of the inter- personal conjugal relationship. This is evident in the Rotal sentences examined in this study". In effect it has been recognised by the ecclesiastical courts that schizophrenia is a progressive disease which involves gross dis- ruption of the personality. It in- volves a split between reason and affect and may render the patient incapable of exercising "due dis- cretion". For the granting of nullity,

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