Thursday, 11 November 2021

canon 1095: an exposition

 

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

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