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GAZETTE
SEPTEMBER 1978,
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
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
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