INTRODUCTION
Consent
alone brings marriage into being,[1]
and substantial defects in consent renders the marriage invalid, because of
their impact on the will. However, a valid consent requires a harmonious
interaction between the mental faculties of the person. A defect in consent is
when consent is manifested but the conditions of this manifestation make the
consent defective. The stipulations of canon 1095 are of a divine law. This
paper is an exposition of consensual incapacity due to difficulties of a
psychological nature.
CANON 1095: AN EXPOSITION
The incapacity formulated by canon 1095 is not to be equated
with that deriving from the impediments. Impediments are prohibitions rendering
the person legally incapable of contracting marriage, while the incapacity of
canon 1095 is something more radical: it is the canonical formulation of a
factual incapacity to elicit an act of valid marriage consent.[2]
This is thus a consensual incapacity which implies a dysfunction of the
rational faculties. Regarding this canon, the canonical source of nullity is
the three-fold consensual incapacity canonically defined by canon 1095 as: Lack
of sufficient use of reason, great defect of discretion of judgment, and
inability to assume the essential obligations. These are the sources of nullity
which ought to be proved, while the clinical conditions are the facts, or
series of facts, supporting the alleged incapacity to consent and to contract
marriage.
Going by the stipulations of the
above canon, to consent to marriage a person must firstly possess sufficient
use of reason to posit a responsible human act, secondly the person must be
able to evaluate the nature of marriage itself and the concrete marriage to be
entered and so to choose it freely, and thirdly the person must be capable of
assuming and carrying out the essential obligations of marriage. However, these
capabilities can be substantially undermined by disturbances, both transient
and permanent, that are psychic or psycho-somatic in nature.[3]
The first two cases (numbers one and two) considers the subject as productive
of an inadequate psychological act, but differently, in the third case the
subject is placed in relationship with the object to which he is unequal,
because his attempt to consent falls on a matter removed from his capacities which
he is not able to have at his disposal for psychological reasons.[4]
Numbers one and two, therefore, deal with the invalidity of marriage because of
the impossibility, for psychological reasons, of forming consent at all. Number
three deals with the invalidity of marriage because of the impossibility, again
for psychological reasons, of making good on what is presumed to have been a
sufficient act of consent. [5]
When Canon 1095, 1°
spoke of a lack of sufficient use of reason, it is not referring to a simple
use of reason, but it refers to a reasoning ability sufficient to understand
that in marriage, a man and a woman come together to constitute a partnership
for life. Lack of
sufficient use of reason can be implied in a case where one or both spouses, at
the time of consent, were incapable of knowing what was happening, or what they
were doing because of a severe habitual (e.g. psychosis) or transient (e.g.,
alcohol or drug intoxication, psychic trauma) disorder.
When
Canon 1095, 2° spoke of grave defect of discretion of judgment concerning the
essential
matrimonial rights and duties, it means that for consent to be truly causative
of a marital covenant, it must at least attain the category of human act,
elicited by the free will with previous deliberation by the human intellect.
This can be implied in a case where one or both spouses were affected by some
serious circumstances or factors that made them unable to judge or evaluate
either the decision to marry or the spouses’ ability to create a true marital
relationship.
When
Canon 1095, 3° spoke of Psychic-natured
incapacity to assume marital obligations, it means that one cannot validly
exchange consent to marriage if it is beyond one’s capacity in terms of
understanding, decision or obligation. This can be implied in a case where one
or both spouses, at the time of consent, were unable to fulfill the obligations
of marriage because of a serious psychological disorder or other mental
condition.
CONCLUSION
In determining or judging the cases
spelt out in canon 1095, the interpersonal integration of the spouses should be
investigated and their backgrounds should be studied. Pre-matrimonial evidences
must not be missed out and the help of experts should be used.
[1] Canon 1057
[2] L. Wauck, “Lack of Due
Discretion: Incapacity or Error?” in
www.core.ac.uk/download/pdf/324045414.pdf
[3] John
P. Beal Et.al. (Ed), New
Commentary on the Code of the Canon law, Theological publications,
Bangalore 2010, 1297.
[4] R. Burke, “Advocates” in www.marysadvocates.org/wp-content/uploads/2018/12/Burke-R-1095.12.pdf
[5] ibid
No comments:
Post a Comment