Briefly Revisiting Pre-1983 Canonical Practice for a Better Response to Marriage Issues

The juridical significance of mental illness and psychic anomalies in marriage has shifted over centuries from a description of an illicit act to one of invalid consent. Early pronouncements on insane individuals who contracted marriage made it clear that although to contract marriage in that state is illicit, the bond is nevertheless valid.1 The notion of consent proves to be definitive in the creation of the marriage bond (as opposed to consummation), and yet in the modern 1917 Code of Canon Law, there is once again a perceived silence with respect to the effect of mental illness and marriage. Many argue there is an incapacity to give consent when afflicted with serious psychic ailments, although the Code makes no mention of this specific type of cause. The temptation to apply norms of penal law in situations of mental illness increased, out of necessity, for a legal response. The ignorance presented in canon 10822 of the 1917 Code was applied to instances of mental illness, and concepts like “discretion of judgment,” began to take shape because consensual capacity implies more than cognitive function. The sense of consensual incapacity, prior to its formulation in the 1983 Code, relied heavily on natural law, and the philosophical psychology of Thomas Aquinas and Thomas Sanchez.

Canonists in their historical exegesis emphasize different elements of this process of development, and it reflects the contemporary differences of interpretation regarding consensual incapacity, and discretion of judgment. Consensual incapacity’s origin in insanity is often underplayed, and instead, the American canonical mentality during the period of canonical revision and formulation of canon 1095––a position that was not accepted by the Commission––continues to be informative in the application of this canon. The critique stated that canon 1095, and the definition of consensual incapacity, should include the term “defect of due discretion” rather than “defect of discretion of judgment.” The problem with the former is that it leads canonists to do one of two things––either separate the mind and will (a person can have his wits but perhaps suffer a character disorder, for example) or create a third faculty in addition to the intellect and will called the “critical faculty.” Both of these options have their critics, and yet they continue to appear in sentences throughout the country (and to be fair, at times even in the Rota).

The question eventually moves to consider a lack of discretion of judgment for marriage in persons who do not have any mental illness at all, but manifest other grave factors affecting the psyche in a certain way. This allows for confusion among canonists as to the proper context of discretion. Initially, in jurisprudence discretion emerges from the category of insanity, and so when it is lacking in a serious way, it is still considered to be a lesser degree of insanity. In some of the earliest studies on mental illness, for example, J. R. Keating notes that psychic impairment, which is not insanity, nor its degree, can still have a juridically meaningful affect, but not on consent.3 Instead, the impairment in this case affects the capacity to fulfill the obligations of marriage. In other words, there was a time when insanity, and the obligations to fulfill, were the interpretative key for canonists, even prior to canon 1095’s existence. This is reflected in Rotal jurisprudence as well. The entrance of discretion of judgment as an autonomous and dominating heading is not a product of jurisprudence, but of undue extrapolation. The motivations for this vary, and are not always unreasonable.

Nevertheless, when canonists begin to consider discretion of judgment as autonomous, a person’s situation at the moment of consent is retrospectively subject to every possible description of inadequacy. It doesn’t help that psychology does not admit the reality of the marriage bond. When tribunals import language from other disciplines, and do not adhere to canonical terminology in cases of mental sciences, they are using this language to identify something in the manner of their respective diagnostic methodology and terminology. The outcome is a definition of marriage that is built on the affective aspects of a human relationship; insofar as for psychology, marriage is only an emotional construct. Immaturity in this sense becomes a word with real weight, and acquires juridical relevance. However, tribunals fail to acknowledge that the philosophical psychology of Aquinas and Suarez, that presents the notion of human consent, cannot be reconciled with the notions of modern psychology. Imported terminology cannot be used to describe the bond, only the psychic faculties of the party or parties. It is a responsibility of the tribunal to use the help of experts in cases of this nature, but scientific approaches begin to affect both the assessment of marital intention in individuals, and the notion of the spousal relation. Psychology and psychiatry are relied upon to provide a structure by which to understand not mental illness’ affect on consent, but how to recognize bad marriage partners.

The elaboration of psychology, and the ease with which tribunals adopt diagnostic models and methods, facilitates another project that is a phenomenon of post-modern liberal culture. The original and most primitive “right” is the conjugal union. A person is free to seek and establish union with a person of the opposite sex, but the “right” is the union itself, and not the liberty to pursue or maintain it. Yet, the perspective of rights has shifted from realities to liberties and, thus, with respect to marriage, the bond is no longer the right. Instead, individuals demand that one must have the chance to have a happy marriage, and never be forced in his or her chosen state of life. When canonists were immersed in the “psychology-meets-personalism” effect in the late 1960s, they conceived of the idea of relative incompatibility (that a person is capable of marriage, but just not with the person with whom he happens to be married to presently). Inspired by the broad assessment of experts, canonists actively implanted this term in expert reports by inserting the term into questions, and leading the inquiry to directly address this phenomenon.

How did this all happen so easily? The emphasis on the interpersonal aspects of marriage, and the growing pastoral urgency to address the crises of marriage, already led American canonists to seek to legislate particular marriage procedural law. This particular law, the American Procedural Norms, was as much about American procedural reform as it was an attempt to influence universal praxis with the implementation of certain scientific, political, and theological concepts. This was a robust and concentrated endeavor considering canonists in the U.S. were very unsatisfied with the lack of representation in the Code revision in the wake of Vatican II.

Vatican II introduced pastoral language that many canonists interpreted as a new definition of marriage and, furthermore, as a way of responding to a call for a new theology of marriage. Not all canonists agreed that the pastoral descriptions of Vatican II had juridical relevance, and they certainly did not agree that it was a concern of the canonical discipline to elaborate a “new theology of marriage.” But the consortium vitae is precisely something that can be used to begin to assemble the components, not of an incapacity to consent to marriage, but of a fitness for marriage. Many saw Gaudium et spes4 as responsible for unseating the principal, and an unsatisfactory description of marriage in the 1917 Code, which speaks of marriage, and the ius in corpus. In the 1983 Code, the ends of marriage are no longer ranked or listed in any clear order of importance, but in light of the communitas vitae et amoris, canonists, nevertheless, reformulated a kind of hierarchy of ends that essentially made what is not, in fact, found to be in the Code, as legally applicable.

In jurisprudence, in iure sections of cases, heard on grounds of psychic incapacity, are determined according to inter-personality, and this is attributed to Rotal sentences. One sentence reads: “Wherefore, we can conclude that a basic incapacity for the community of conjugal life, existing at the time of the marriage, would consequently make a person incapable of contracting that particular marriage. Such a person would lack due discretion.” This also means this person does not have the proper character or maturity which, in turn, proves that this person is lacking due discretion of judgment. Another sentence maintains that the behavior within a marriage can cause invalidity even if this same person has an accurate perception of reality, and is not rationally impaired––that is to say, this person’s judgmental capacity is lacking because the actions that affect the emotional aspect of the relationship are not fully controlled by the intellect. Having an “inadequate personality” is proof of psychic incapacity given that this person cannot relate and, therefore, cannot fulfill the duties of married life satisfactorily. This manifests a complete confusion of the canonical exegesis behind consensual incapacity.

Canonists employed consortium in many cases as a singular basis of theoretical and practical treatment of marriage. Rarely are other terms substituted for consortium because the object of concern is the interpersonal relationship. When psychology is used as a context—instead of the commonly referenced GS, n. 48—the term “relatio” is used. Tribunals began to accept grounds of consensual incapacity due to “psychological factors, preventing a true Christian marriage,” “Lack of consortium vitae et amoris,” “Radical Incapacity due to cultural differences making a covenant of life and love thoroughly impossible,” and “Inability to establish a viable community of life,” as well as “Pressures before marriage established an ‘oppositional relationship,’ rendering the parties fundamentally incapable of establishing a common life and true marital union.”

Canonists argued that other constraints on the interpersonal relationship that cause tension between individuals on the emotive and psychic levels, cannot be allowed to endure, and a marriage bond might be duly disavowed because marriage should instead be an instrument of divine grace that leads to spiritual, and otherwise integral, flourishing. This marks the threshold for the notion of relative incapacity, the notion of a necessary pre-existing spiritual capacity for marriage, lack of internal freedom, and further descriptions of the invalidating effect of personality-character disorders and immaturity. Effectively, for some canonists the conjugality of marriage is no longer defined as a sexual union. Marriage might even be dissoluble given that in theological research, the perimeters of the spiritual union have not been determined, and thus sexual intercourse cannot be definitively said to complete the bond.

Canonical marriage cases in the United States have been dominated by claims of incapacity, and the response to this phenomenon has been an attempt to more positively formulate what it means to have a Christian marriage. Yet, the effort to define marriage indeed cannot be called a purely canonical project, given that canonists have abandoned the canonical discipline to do so. Because the perspective has shifted—to be blunt—from the right of the bond, to the liberty to be happy and unforced, it is therefore clear how this new positive definition of capacity is desired for its intended affect in the pastoral sphere, as well as in the universal conversation of the organization of law in the Church.

The curious progression of the approach to marriage law in the United States is associated with many other related issues, which is why canonical interpretation cannot be so easily remedied, and why it is inaccurate to say any of this is a result of Vatican II. Canonists have made proposals for the renewal of canon law. They include implementation of Anglo-American common law, and the formulation of a kind of Constitution that would outline and protect the rights (liberties) of the faithful. Other prominent canonists have formally proposed a communitarian law paradigm that would basically eliminate all procedural law, and foster the utopian ideal for the best possible legal-pastoral experience. This means the eradication of all judgment, and certainly the end of the presumption of the validity of the bond.

The timeline of the above events occurs prior to the promulgation of canon 1095 in the Code of 1983. Present-day discussions of canonical interpretation and application of the concept of incapacity for marriage are part of a long history that is difficult to navigate, and is much more involved than just the marriage bond, and questions of mental health. Currently, the number of divergences in jurisprudence with respect to the notion of incapacity can be traced back to pre-revision debates—and one must ask why they persist beyond the life-span of their proponents. The canonical discipline after 1983 develops out of practice which is, by that time, insular, and performs {nor is it provided with} little or no historical exegesis. When the Code was finalized, many of the corollary issues affecting canonical perspective should have been concluded and removed as sources of insight. Instead, the remnants of harmful language and arguments remain. The relationship with psychological sciences is likewise problematic, when it might be clarifying. A more complete visitation of American canonical practice, and concerns prior to the promulgation of the 1983 Code of Canon Law, is a very helpful resource for canonists and Bishops, and currently very much missed.

  1. Gratian, Decree c. 26, CXXXII, q. 7: “Neque furiosus, neque furiosa matrimonium contrahere possunt; sed si contractum fuerit, non separentur.”
  2. Canon 1082, §1: For matrimonial consent to be valid it is necessary that the contracting parties at least not be ignorant that marriage is a permanent society between a man and a woman for the procreation of children. §2: Such ignorance is not presumed after puberty.
  3. J. R. Keating, The Bearing of Mental Impairment on the Validity of Marriage (Gregorian University Press: Rome, 1964).
  4. Vatican II, Pastoral Constitution on the Church in the Modern World, Gaudium et spes, 7 December 1965. AAS 58 (1966): 1025–1115.
Catherine Godfrey Howell, JCD About Catherine Godfrey Howell, JCD

Catherine Godfrey Howell, JCD, is a canon lawyer, editor, and translator. Her dissertation, completed at the Pontifical University of the Holy Cross, is a profile of consensual incapacity to marry in American canonical jurisprudence. She presently lives in South Bend, Indiana, with her husband and three children.


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