tide: Marriage is not impossible
On Thursday, 29 January
, the Holy Father addressed the Tribunal of the Roman Rota on the
occasion of the inauguration of the judicial year. The following is a
translation of the Pope's Address, which was given in Italian.
Officials and Collaborators of the Tribunal of the Roman Rota,
The solemn inauguration of
the judiciary activity of your Tribunal offers me again this year the
joy of receiving you its distinguished members: Monsignor Dean, who I
thank for the noble opening address, the College of Prelate Auditors,
the Officials of the Tribunal and the Advocates of the Studio Rotale.
I address to all of you my cordial greeting, together with the
expression of my appreciation for the important task to which you attend
as faithful collaborators of the Pope and of the Holy See.
You are expecting the Pope,
at the beginning of your working year, to say a word of light and
guidance on carrying out your delicate duties. We could dwell upon many
topics in this circumstance, but at the distance of 20 years from the
Addresses of John Paul II on psychiatry's incapacity in the
nullification of matrimony, of 5 February 1987 (Address to the Roman
Rota, L'Osservatore Romano English edition [ORE], 23 February
1987, p. 6), and of 25 January 1988 (ORE, 15 February 1988, n.
7, p. 7), it seems opportune to ask oneself whether and to what
extent these interventions have had an adequate reception in the
This is not the moment to
draw up the balance sheet, but the fact of a problem that continues to
be very real is visible to everyone. In some cases one can,
unfortunately, still sense the pressing need of which my venerable
Predecessor spoke: that of preserving the ecclesial community "from the
scandal of seeing in practice the value of Christian marriage being
destroyed by the exaggerated and almost automatic multiplication of
declarations of nullity, in cases of the failure of marriage, on the
pretext of some immaturity or psychic weakness on the part of the
contracting parties" (Address to the Roman Rota, n. 9, 5 February
1987, ORE, 23 February 1987, p. 7).
At our meeting today I am
intent on recalling the attention of lawyers to the need to treat the
cases with the due depth required by the ministry of truth and charity
that is proper to the Roman Rota. To the need for a rigorous procedure,
in fact, the above mentioned Addresses, on the basis of Christian
anthropological principles, furnish the basic criteria, not only for the
close examination of psychiatric and psychological evidence, but also
for the judicial definition of the causes.
In this regard it is
opportune to recall again some distinctions that draw the demarcation
line above all between "psychic maturity which is seen as the goal of
human development" and "canonical maturity which instead, is the basic
minimum required for establishing the validity of marriage" (ibid.,
n. 6, p. 7). Secondly, the distinction between incapacity and
difficulty insofar as "only incapacity and not difficulty in giving
consent and in realizing a true community of life and love invalidates a
marriage" (ibid., n. 7).
Thirdly, the distinction
between the canonistic dimension of normality, that is inspired by an
integral vision of the human person "also includes moderate forms of
psychological difficulty", and the clinical dimension that excludes from
the concept of it every limitation of maturity and "every form of
psychic illness" (Address to the Roman Rota, n. 5, 25 January
1988, ORE, 15 February 1988, p. 6). And lastly, the distinction
between the "minimum capacity sufficient for valid consent" and the
idealized capacity "of full maturity in relation to happy married life"
(ibid., p. 7).
I then attest to the
involvement of the faculties of the intellect and the will in the
formation of matrimonial consent, Pope John Paul in the above mentioned
Address of 5 February 1987, reaffirmed the principle according to which
a true incapacity "is to be considered only when an anomaly of a serious
nature is present which, however it may be defined, must substantially
vitiate the capacity to understand and/or to consent" (Address to the
Roman Rota, n. 7, ORE, 23 February 1987, p. 7).
In this regard it seems
opportune to recall that the Code of Canon Law's norm concerning mental
incapacity, and the application thereof, was further enriched and
integrated by the recent Instruction "Dignitas connubii" of 25
January 2005. In fact, in order for this incapacity to be recognized,
there must be a particular mental anomaly (art. 209 § 1) that seriously
disturbs the use of reason (art. 209 § 2, n. 1; can. 1095, n. 1), at the
time of the celebration of marriage and the use of reason or the
critical and elective faculty in regard to grave decisions, particularly
in freely choosing a state of life (art. 209 § 2, n. 2; can. 1095, n. 2)
or that puts the contracting party not only under a serious difficulty
but even the impossibility of sustaining the actions inherent in the
obligations of marriage (art. 209 § 2, n. 3; can. 1095, n. 3).
However, on this occasion,
I would also like to reconsider the theme of the incapacity to contract
marriage, of which canon 1095 speaks, in the light of the relationship
between human persons and marriage and recalling some fundamental
principles that must enlighten lawyers.
First of all it is
necessary to rediscover the positive capacity that in principle every
human person has to marry by virtue of his very nature as man or woman.
Indeed, we run the risk of falling into a form of anthropological
pessimism which, in the light of the cultural situation today, considers
marriage as almost impossible. Besides the fact that such a situation is
not uniform in the various regions of the world, one cannot confuse the
real difficulties confronting many, especially young people
who conclude that marital union is normally unthinkable and
with the true incapacity of consent. Rather, reaffirming the innate
human capacity for marriage is precisely the starting point for helping
couples discover the natural reality of marriage and the importance it
has for salvation. What is actually at stake is the truth about marriage
and about its intrinsic juridical nature (cf. Benedict XVI, Address
to the Roman Rota, 27 January 2007), which is an indispensable
premise if people are to understand and evaluate the capacity required
In this sense the capacity
must be associated with the essential significance of marriage, that is
"the intimate partnership of life and the love which constitutes the
married state has been established by the Creator and endowed by him
with its own proper laws" (Second Ecumenical Vatican Council, Pastoral
Constitution, Gaudium et spes, n. 48), and, in a particular way,
with the essential obligations inherent to it, that must be assumed by
the couple (can. 1095, n. 3).
This capacity is not
measured in relation to a determined level of existential or effective
realization of the conjugal union through the fulfilment of the
essential obligations, but in relation to the effective will of each one
of the partners, who makes possible and operative this realization
already at the moment of contracting marriage.
The issue of the capacity
or incapacity, therefore, has sense in the measure in which it regards
the very act of the marriage contract, since the bond put in act by the
will of the spouses constitutes the juridical act of a lofty biblical
interpretation of "one flesh" (Gn 2:24; Mk 10:8; Eph 5:31; cf.
can. 1061 § 1), whose valid subsistence does not depend on the
successive behaviour of the couple during their married life.
On the other hand, in the
reductionist optic that fails to recognize the truth on matrimony, the
effective relationship of a true communion of life and love, idealized
on a level of pure human well-being, essentially becomes dependent only
on accidental factors, and not, instead, on the exercise of human
freedom sustained by grace.
It is true that this
freedom of human nature, "wounded in the natural powers" and "inclined
to sin" (Catechism of the Catholic Church, n. 405), is limited
and imperfect, but not for this reason does it become inauthentic and
insufficient to accomplish that act of self-determination of the parties
who form the conjugal pact, that give life to matrimony and to the
family founded on it.
anthropological and "humanistic" currents aimed at self-realization and
egocentric self-transcendence idealize human beings and marriage to such
an extent that they then deny the mental capacity of many people, basing
this on elements that do not correspond to the essential requirements of
the conjugal bond.
Faced with this concept,
canon law experts cannot fail to take into account the healthy realism
that my venerable Predecessor indicated (cf. John Paul II, Address to
the Roman Curia, 27 January 1997, n. 4, ORE, n. 6, 5 February
1997, p. 3), because the capacity makes reference to a basic minimum so
that the couple can give their being as a male or as a female to
establish that bond to which the great majority of human beings are
It follows, in principle,
that the causes of nullity through mental incapacity require the judge
to employ the services of experts to ascertain the existence of a real
incapacity (can. 168o; art. 203 § 1, DC), that is always
an exception to the natural principle of the capacity necessary to
understand, decide and accomplish the giving of self upon which the
conjugal bond is founded.
This is what, venerable
members of the Tribunal of the Roman Rota, I wished to set forth on this
solemn occasion, that is always a pleasant circumstance for me. In
exhorting you to persevere with a lofty Christian conscience in the
exercise of your office, whose great importance for the life of the
Church emerges also from the things just said. May the Lord accompany
you always in your delicate work with the light of his grace, to which
the Apostolic Blessing that I impart to each one with deep affection is