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GAZETTE
SEPTEMBER 1990
>
The EEC Convention on
Jurisdiction and the
Enforcement of Judgments
P E T ER BYRNE
The 1968BrusselsConvention on Jurisdiction and the Enforcement
of Judgments in Civil and Commercial Matters — brought into force
on 1 June 198 — establishes abody of rules of primary importance
for asignificant proportion of practitioners.
This bookexamines the Convention article by article setting out the
effect of each and, where provisions have been construed by the
Court of Justice, referring in considerable detail to the relevant
decisions—delivered in over fifty judgments todate.
The full text of the Convention (and accession conventions),
indicating al amendments and the provisions of the Irish Jurisdiction
of Courts and Enforcement of Judgments (E.C. Communities) Act
1988, together with an annotated guide based on the draughtsmen's
reports and summaries of the case-law of the Court of Justice are
included.
In his foreword The Hon. Mr Justice JohnBlayney states:
The
author
deserves the thanks of all practitioners
who will have to grapple
with
this branch of the law. He has had the courage to undertake the
research and arduous work required ...and
has done so
admirably.
ISBN 0-947686-60-6,272pp £45.00
THE ROUND HALL PRESS
Kill Lane, Blackrock, Co. Dublin, Ireland
Tel: 892922; Fax 893072
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,
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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