Canon Law 1095 - Lack of Due Discretion

Canon Law – 1095.2 - Lack of Due Discretion[1]

A person may possess sufficient use of reason to have a rudimentary and abstract understanding of marriage and its obligations and to intend marriage so understood but still be incapable of consent, if he or she lacks the ability to deliberate critically about this choice in the concrete. For example, a teen-aged girl captivated by the story of Romeo and Juliet may have adequate abstract knowledge of marriage and intend a marriage with her first boyfriend like the one portrayed in Shakespeare’s play, but still be unable to consent validly to the marriage because of her immature assessment of her own and her boyfriend’s readiness for marriage. Canon law calls this incapacity for critical deliberation “lack of maturity or discretion of judgment”.

The Church requires the human maturity proportionate to the state of life in question for all life-choices, since they entail lifelong obligations. The minimum age for marriage is sixteen for men and fourteen for women (c. 1083, §1), two years higher than the ages for puberty. At these ages, men and women respectively presumably possess the minimal maturity or discretion of judgment to consent to marriage. Following Aquinas, canon law has traditionally set a lower minimum age for marriage than for professing vows in a religious institute or for embracing celibacy as an ordained minister because marriage is something toward which people are inclined by nature and, therefore, marriage consent requires less maturity or discretion than does entry into the other states. The presumption that men and women possess minimally sufficient discretion for marriage at the ages of sixteen and fourteen respectively is a simple one that cedes to contrary proof. Such contrary proof may not be difficult to acquire in Western cultures where adolescence with its attendant dependence and immaturity is typically extended well into a person’s twenties.

The maturity or discretion of judgment that is required for capacity for matrimonial consent must be proportionate to the serious and perpetual obligations of marriage. Mature or due discretion requires that consent be informed, prudent, and free. Consent is informed if the person has “sufficient cognitive (intellectual) knowledge of self and of the other, and of the essential rights and duties, constitutive of the permanent and exclusive ‘consortium totius vitae.’” While such cognitive knowledge is necessary for a person to consent to marriage, it is not in itself sufficient. The person must also be capable of critically evaluating this knowledge in view of a decision about a concrete pending marriage.

In an often cited 1957 decision, Felici explained: “To be able to perform a responsible act, which can be characterized as morally imputable, it certainly does not suffice to be capable of exercising the cognitive function, but one must exercise the critical faculty, which alone renders one capable of forming judgments and moving the will.” This critical faculty, a function of the practical intellect, is the capacity to evaluate knowledge of one’s self, one’s prospective partner, and the complex of rights and obligations constitutive of the partnership of the whole of life by comparing, integrating, and deducing new judgments. In short, the critical faculty is the capacity to make a prudent judgment about this marriage with this person at this time.

To be a genuinely human act, matrimonial consent must be free from both external coercion and internal compulsion. While human actions are never entirely free from instinctual and unconscious influences, valid consent requires freedom “from immature, obsessive and overpowering ideas, fantasies, instinctual excitations, fear, and so forth in the process of choosing the object of consent.” In other words, a person must be able to evaluate his or her motives for marriage and to exercise mastery over impulses and anxieties.

The notion of due discretion that has emerged in jurisprudence is well summarized in a 1979 decision by Pinto:

Discretion of judgment that is proportionate to marriage demands the capacity firstly of understanding the essential obligations of marriage, at least in substance, and secondly of freely choosing to assume those obligations. As regards the capacity of understanding, a speculative or abstract understanding is not enough; one must also have a practical understanding, which presupposes experience in living, about the particular marriage to be celebrated, with this person, in these circumstances, with some understanding of the particular difficulties both present and future insofar as they can be seen and with a sense of the responsibility and seriousness of the obligations that are being undertaken. As regards the capacity of freely choosing marriage, it is required that the decision to enter marriage be based on reasonable motives after sufficient deliberation and not on pathological motives, and it is also required that they will be able to order the decision into execution. [Rob Ruhnke: note there is NO specific mention of the actual processes of constructing the  RELATIONSHIP that is the essence of Matrimony.  This relationship is established and sustained by the two individuals making use of the communication skills they have inherited from their Family of Origin and learned from their culture or teachers or peers.  They may or may not have the maturity to objectively assess their “relationship skills.” They may not understand that their lack of adequate relationship skills could FAIL to help them establish a “relationship” that will be the “intimate partnership of married live and love” that can support them through the challenges of marriage and family life.  One or both of them may think that being “in love” (having a romantic attraction to the other) is an adequate foundation for making wedding vows to one another.]

The maturity or discretion of judgment required for matrimonial consent can be subverted by a variety of habitual mental disorders. Psychoses can deprive a person of the capacity for critical deliberation; neuroses can compromise a person’s internal freedom. Personality disorders are “enduring patterns of perceiving, relating to, and thinking about the environment and oneself in a wide range of social and personal contexts” which “are inflexible and maladaptive and cause significant functional impairment.” These disorders are sometimes treated in jurisprudence as disorders that impair critical deliberation and sometimes as disorders that restrict internal freedom. Since consent requires the harmonious interaction of the intellect and the will, “it cannot be determined a priori when the judge should examine someone’s intellective capacity alone, and when he or she should investigate the volitive capacity.”  In practice, whether to concentrate on the impact of a personality disorder on a person’s critical faculty or internal freedom is dictated by the facts of the particular case. [Rob Ruhnke note: But it is NOT just mental disorders that can impair the kind of dialogue that a couple needs to employ through the discernment process of deciding to marry.  It is also true that people who have no mental disorders may be completely lacking in the kind of communication skills that are essential for establishing and sustaining the intimate partnership of lifelong marriage.  The Retrouvaille program is the best example of a process for assisting married couples who married without being able to make use of the skills that are included in the phrase “daily dialogue”.  Even if these couple had some idea of the concept “daily dialogue”, they could not or would not make use of this skill….and their marriages failed.  When they decided to learn and use “daily dialogue” by taking part in a Retrouvaille retreat and then continue to take part in the follow-up meetings and actually practice “daily dialogue”….they are able to witness to others that it is the “tool” of “daily dialogue” that make it possible for them to sustain their marriage and family life.   They learn that just wanting to be married and being committed to one another is NOT enough, they must practice daily dialogue.  When they do daily dialogue, they experience the feelings of “safety” and “being heard” and “signs of affection” they are craving.]

Despite the firm assertion of John Paul II that “the hypothesis of a real incapacity is to be considered only when an anomaly of a serious nature is present,” Rotal jurisprudence has continued to issue affirmative decisions in cases where lack of due discretion is alleged, not only when the basis for the defect is a serious habitual mental disorder, but also when the defect is rooted in a serious but transitory disturbance of the mind. Thus, traumatic events or stress-related experiences can in-duce psychological disturbances that temporarily deprive a person of the due discretion for marriage.  A not uncommon example of a traumatic event that can disturb a person’s psychological equilibrium is the discovery of a premarital pregnancy. A person can also be temporarily deprived of due discretion by desperation arising from the need to flee an intolerable situation (e.g., an abusive home situation) or by extreme dependence on one’s parents arising from an infantile relationship.

Due discretion can also be undermined by mentalities and attitudes that pervade the socio-cultural milieu in which a person is immersed. For example, where family honor is a prominent cultural value, a person who has committed an act that, if disclosed, would bring disgrace on the family may feel compelled, even without external coercion, to marry in order to prevent damage to the family name. Moreover, inveterate attitudes contrary to the Christian understanding of marriage can also result in a fundamentally flawed decision-making process. Thus, in a case involving a young man who married while steeped in the “hippy” lifestyle, the Rotal concluded: “This sentence presents the clearest example of deliberation which was simply not there, perhaps not because of some psychopathy, but because of a lifestyle which precludes any serious consideration of the value of things.”

In cases where lack of due discretion is suspected, judges must reconstruct the marital decision-making process, as investigators reconstruct the scenes of traffic accidents, to attempt to identify critical faults or omissions in the reasoning process that may have rendered it fatally flawed. Often, this reconstruction involves a two-step process. First, one identifies an underlying disorder or disturbance that has impaired a person’s psychic functioning. Then one weighs the seriousness of the impact of this impairment on the faculties involved in the decision-making process against the seriousness of marital rights and obligations. Psychological experts can provide invaluable assistance to judges in identifying the nature, seriousness, and impact of psychic disorders and disturbances and in reconstructing the dynamics of the process that led to the choice of marriage. [Rob Ruhnke note > There seems to be clear statement that: “This sentence presents the clearest example of deliberation which was simply not there, perhaps not because of some psychopathy, but because of a lifestyle which precludes any serious consideration of the value of things.”  This statement affirms “deliberation which was simply not there” can be determined by a careful examination of the life experience of the Petitioner for annulment.  In my experience of assisting Petitioners, I encourage them to learn about the reality of their Family of Origin and other factors to assess the communication skills they used in the process of dating and engagement and marriage to learn the inadequacies of their dialogue that was so inadequate they are now divorced and they are telling me that there is no possibility of reestablishing a healthy/holy marriage (if they could reconstruct the marriage that would be the proper project to work on!).  My ministerial strategy is to assist the Petitioner to learn and practice daily dialogue (if the Petitioner is already in a relationship with another person) so as to learn from experience the value of daily dialogue, so that the Petitioner can begin the critical analysis of the failed marriage to identify WHY the marriage failed to achieve the status of an “intimate relationship of life and love” that he/she intended to establish.  In doing this kind of work, the Petitioner can grow to see his/her life and failed marriage in a new light.  In hindsight, it may be possible to resist a tendency to blame the failure of the marriage on the ex-spouse, and focus on the fact that the Petitioner did not develop adequate dialogue skills while he/she was growing up.  It could be that he/she grew up in a family that failed to witness effective communication skills or he may have learned poor skills from his wider culture.  The point here is NOT that he/she is a “bad” person, but he was not learning the proper communication skills that are essential for stablishing a health/holy intimate relationship.  A consequence of this hindsight is that the Petitioner can take responsibility for his/her part of the failure of the marriage and attest that fact without blaming the ex-spouse.   It take two to make a marriage work, it only takes one to destroy a marriage.  The Petitioner can become a mature person who is NOW taking responsibility for his/her part in the failure of the marriage.  Again, I repeat, if the Petitioner and the ex-spouse could do the work of re-establishing the failed marriage, that would be the ONLY best option.  But that, of course, would be possible only if BOTH of them were willing to do that work.  I am sure God would help them do that, but God is not going to do it for them!]