The Gazette 1978

GAZETTE

SEPTEMBER 1978,

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.

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.

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.

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

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

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