MARRIAGE NULLITY CASE
B vs. A
SANDRO ZAMMIT FELICE
PLC3230 CHURCH LEGISLATION ON MARRIAGE
UNIVERSITY OF MALTA
ACADEMIC YEAR 2019-2020
DECLARATION OF AUTHORSHIP FOR ASSIGNMENTS
I, Sandro Zammit Felice, declare that this assignment PLC3230 – CHURCH LEGISLATION ON MARRIAGE
and the work presented is/are my own personal work. I confirm that:
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The Word Count of the assignment is _____words.
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This work was done in partial fulfilment for the master/degree/diploma/certificate in
LL.B with Diploma of Legal Procurator at the Faculty of Laws of the University of Malta.
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Where any part of this assignment has previously been submitted for a degree or any other
qualifications at this University or any other institution, this has been clearly stated.
•
Where I have consulted the published work of others, this is always clearly attributed.
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Where I have quoted from the work of others, the source is always given. With the exception
of such quotations, this assignment is entirely my own work.
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I have acknowledged all sources used for the purpose of this work.
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I have not commissioned this work, whether in whole or in part, to a third party and that this
work is my own work.
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I have read the University of Malta’s guidelines on plagiarism
Signed: _____________________________
Date: 22.12.2019
II
ABSTRACT
The author’s intention in the role of the advocate to the petitioner was to present the pertinent
grounds emanating from the Code of Canon Law in order to challenge the validity of the
marriage between B and A.
The statements submitted by all the parties were given its relevant importance according to the
relationship with the parties in the canonical proceedings. All three nullity grounds germane
to the case were considered, however, the primary objective of the undersigned was to decipher
the most reasonable ground/s according to the circumstances which evolved through their
relationship, even if such ground does not emerge from the inceptive petition.
III
TABLE OF CONTENTS
DECLARATION OF AUTORSHIP................................................................................... II
ABSTRACT .......................................................................................................................III
TABLE OF CONTENTS .................................................................................................. IV
INTRODUCTION ...............................................................................................................1
SIMULATION OF MARRIAGE ........................................................................................2
Contra Bonum Sacramenti ...........................................................................................2
Contra Bonum Fidei .....................................................................................................2
GRAVE DEFECT OF DISCRETION AND INABILITY TO ASSUME MARITAL OBLIGATIONS
.....3
CREDIBILITY OF THE PARTIES AND WITNESSES....................................................3
IN DEPTH ANALYSIS .......................................................................................................5
FINAL ANALYSIS AND CONCLUSION.........................................................................6
BIBLIOGRAPHY ................................................................................................................9
IV
INTRODUCTION
The couple met during their teenage years, and after approximately four years of courtship they
eventually married each other, with four children being born in their relationship. Their
marriage lasted for about fourteen years, when they eventually became legally separated.1 The
marriage breakdown may have been catalysed by a number of issues which took place prior
and post marriage. The testimony submitted by the parties and witnesses required a great deal
of analysis, particularly in verifying the most reliable and credible sources, in order to establish,
or at least come close to the truth.
Assertions which were given their appropriate weight emanating from the testimony include
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The consistent insistence of the petitioner, that he was not in love (but rather in lust)
with the respondent, and that he continuously was unfaithful to her.2 The respondent
had also stated that he would never give a straight answer whenever she asked him if
he was in love with her.3
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Discrepancies between the parties and witnesses, particularly with regard to the
characters of the spouses, and their maturity and capacity to undertake marital
obligations.
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The dearth of preparation for the marriage. A compelling element which supports this
claim is the fact that the couple failed to follow the Cana course. Moreover, their
wedding was only given the green light by the parish priest on the condition that they
would eventually follow the Cana course after the wedding.4
Statements made by some witnesses were given more importance than others on the basis of
perceived credibility and proximity between the witnesses and the parties. Finally, a great deal
of consideration was given to the psychological assessment which analysed thoroughly both
the petitioner’s and the respondent’s psychological wellbeing.
1
Page 127 of the Case Study Report.
ibid., p 2 No. 6.
3
ibid., p 34 of the CSR, No. 23.
4
ibid., p 19 of the CSR, No. 16.
2
1
SIMULATION OF MARRIAGE
The first ground solicited by the petitioner is that in Canon 1101, which refers to the simulation
of consent. This rebuttable presumption (juris tantum) is based on the fact that the primary and
intrinsic motive for marrying is love, and such motive is what strengthens such consent. It is
presumed that the internal consent of the person should be in conformity with the external
manifestation. Simulation is considered to be complete when one or both parties exclude
marriage in totum, and that is when the intention of entering marriage is for a different purpose
rather than that naturally expected from a genuine spouse.
Alternatively, simulation shall be regarded as partial when it is simulated on the basis of a
particular but essential element. Many centuries ago St. Augustine of Hippo coined the three
indispensable goods of marriage, which effectively are the three most considered bona by the
tribunals when it comes to simulation as a ground of nullity in a matrimonial bond.
Contra Bonum Sacramenti
This is the exclusion of indissolubility of marriage through a positive act of the will. Aquinas
argues that marriage must be indissoluble and monogamous, otherwise the wife risks becoming
a slave rather than a partner.5 Undoubtedly this should be assumed for both genders. He also
maintains that the importance of the element of indissolubility in marriage is substantiated by
the fact that in Gen. 2, 24 one reads that ‘a man will leave his father and mother for the sake of
his wife’, and thus one here easily perceives the significance of the latter, which ought to have
the capacity to replace (figurative) the parents. Therefore essentially, if by positive act, during
the matrimonial consent, at least one of the spouses excludes the indissolubility of marriage,
such marriage shall be considered invalid.
Contra Bonum Fidei
Fidelity is among the three most essential components in marriage. Whenever, by a positive
act of the will, during the exchange of consent, at least one of the spouses excludes fidelity,
such spouse would have simulated consent. Moreover, if it is proved that the other spouse was
aware of such simulation then such spouse is also culpable in simulating consent. However, it
should be understood that invalidity does not arise from the fact that the spouse indulged in
5
Cf. Summa C. Gent III-II, 124, para.4 and 5 (as cited in Beth M. Mortensen, The Relation of the Juridical and
Sacramental in Matrimony, According to Thomas Aquinas (Thesis Doctorate UNIVERSITÄT FREIBURG,
2012).
2
extra-marital affairs during marriage, because invalidity requires that such indulgence was
already intended during the exchange of consent during the nuptial ceremony.
The exclusion of Bonum Prolis was not considered for this case.
Grave Defect of Discretion and Inability to Assume Marital Obligations
Article 1095 lists three defects which precludes one from contracting marriage. The two
presumptions which emanate from article 1095(2) and 1095(3) respectively, and which are
most relevant to the case are the following:
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The presumption that one is in possession of a mature discretion of judgement to make
a decision and free to undertake tasks of rights and obligations which are consequence
of every marriage.
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It is also presumed that a person contracting marriage has the psychological freedom to
undertake the essential obligations of marriage.
When at least one of the spouses, whilst contracting marriage was in the dearth of due discretion
or psychological freedom to assume matrimonial rights and obligations, such deficiency may
lead to a sufficient ground for nullity.
CREDIBILITY OF THE PARTIES AND WITNESSES
The testimony of both the parties and witnesses and their credibility are an essential part of the
proceedings since they will effectively lead to the evaluation and consequently the decision of
the judge.
It can be understood that both the petitioner and the respondent were highly critical of each
other. One can also perceive that it is the petitioner’s intention to amplify certain circumstances
in order to solidify his argument in favour of nullity. It is for such reason that statements made
by the parties in the proceedings are to be weighed and cross checked by the statements
submitted by the witnesses.
In order to evaluate one’s credibility and reliability, interviews are to be analysed in depth,
taking particular considerations the relationships between the parties and witnesses.
3
For instance, it is intrinsically understood that if witness X is the mother of the petitioner, then
her submissions tend to incline in favour of the petitioner and against the respondent. It is
therefore expected that relatives have some degree of bias, favouring their own and
disfavouring the other party, so as a consequence whenever a witness makes a positive
statement on the person he does not relate to, then such statement should be given a significant
weight. This circumstance can be seen for instance, in the submissions of the petitioner’s
mother, who expectedly was critical towards the respondent (daughter in-law), yet she felt very
comfortable stating how her daughter in-law gave her children the best when they were
growing up6 and how she always took care of them.7
Although the observation aforementioned does not necessarily make the witness interviewed
reliable in all the testimony, it certainly indicates that the possibility that the respondent was a
caring mother who nourished her children is extremely high.
On observation of the acts and statements, one could identify a number of submissions made
by the parties and witnesses which were congruous throughout. For instance the fact that their
relationship was the first serious one was declared by all, the introvert, mysterious and reserved
type of character of the petitioner was also a common assertion made by the majority. The
same goes for the way and manner the respondent took care of her children was also compatible
with most of the witnesses.
Then there were statements which albeit not congruent across the board they were more or less
attested by different witnesses. In such manner were the declarations, among others, with
regards to the infidelity of the petitioner in the final years of marriage, the mother of the
respondent stricken by a great deal of depressive moods and the occasional aggressive reactions
by the petitioner (which were partially affirmed by the petitioner himself 8).
It is the undersigned’s opinion that when it comes to credibility and reliability the aunt of the
respondent, the petitioner’s brother, the friend who was a member of the Catechumenal
Movement and the respondent’s father were possibly the most convincing. The petitioner’s
sister also seemed to be credible in a number of submissions. The undersigned opines that
reliability and credibility of the individual tend also to be directly proportional to the number
6
Page 54 of the CSR, No. 24.
ibid., p 56 No. 31.
8
ibid., p 136.
7
4
of times his submissions were wholly or partially featured in those made by the other party and
witnesses.
IN DEPTH ANALYSIS
The undersigned cannot omit an analysis of the various statements with regard to fidelity both
preceding and ensuing marriage. It seems clear that at the end of their marriage the petitioner
pursued another relationship, this was also attested by the aunt who was closely acquainted
with the respondent. Whether the intention of infidelity during consent was present, is difficult
to prove and what appears to be the only testimony other than that of the petitioner, was made
by his brother in law, who maintained that the former confided in him that he did frequent
Russian prostitutes. He also mentions that one time he did see him in the vicinity of a place
known for prostitution.9 An interesting finding in the psychological assessment is the fact that
the petitioner tends to be “extremely egocentric” and “predominantly focused on his needs”.10
It is the author’s perception that this finding may tie in with his alleged vice of frequenting
prostitutes.
In the clinical analysis emerging from the psychological report, the psychologist found that
neither the petitioner nor the respondent suffered from any psychological or pathological
disorders at the time of assessment.11 Nonetheless, with regard to the petitioner the report
concluded that he had traits of narcissism with neurotic anxiety and does react quite intensely
in stressful moments.12
The petitioner’s level of maturity was questioned by a number of the witnesses, including his
brother, who although described him as being normally mature in decision making, he still felt
that he was emotionally immature13. Similar remarks by the petition’s brother were made with
regard to the respondent, arguing that she was not capable of living as a married woman.14
Same remarks were made by the petitioner’s sister.15
9
Page 104 of the CSR, No. 12.
ibid., p 136.
11
ibid., p 138, 150.
12
ibid., p 135.
13
ibid., p 60 No. 6.
14
ibid., p 64 No. 24.
15
ibid., p 96 No. 24.
10
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The respondent’s aunt on the other hand asserted that she doubted the petitioner’s level of
maturity.16 Yet it is the undersigned’s opinion that his level of maturity does not qualify to the
extent of grave discretion of judgement concerning matrimonial obligations.
The
psychological report in fact concludes that there are “..no indications to support any claim of
B having any incapacitating immaturity.. no signs of impairment which impair his capacity for
intimate relationships.. at the time of consent.”17
On the other hand, the respondent’s psychological wellbeing, during the time of consent was
put to question by means of the psychological report. One could easily perceive that the
respondent’s childhood, was not the happiest at her parents’ home. She (the respondent) argues
that she would wake up in a bad mood on Monday mornings because she had to leave her
aunt’s house (where she used to spend her weekends) and did not look forward to go back
home.18
Furthermore, the clinical assessment showed that although at the time of assessment she
showed no signs of mental illness, psychic disturbance, or incapacitating maturity, at the time
of consent and during the early years of marriage she did lack the required psychological
maturation, showed depleted self esteem, and had dependant personality with masochistic
features, being overly complacent, tolerant and self-sacrificial during her marriage.19
FINAL ANALYSIS AND CONCLUSION
The undersigned is of the opinion that in analysing the situation holistically one may conclude
that, there’s a considerable amount of circumstantial evidence to assume that the respondent
did in fact exert some sort of psychological pressure on the petitioner to get married, and this
could be due to the fact that she might have been inhibited with psychological issues.
Hereunder are a number of points which substantiate this argument.
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Firstly, his reluctancy to get married is affirmed by her own claims20, but his view
apparently changed following her pregnancy.
16
Page 69 of the CSR, No. 6.
ibid., p 138.
18
ibid., p 145.
19
ibid., p 154.
20
ibid., p 32 No. 14.
17
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There is a general agreement by the parties and witnesses that the spouses were not
effectively prepared for marriage. They were still looking for a place to live in. By her
own admission, the fact that she became pregnant out of wedlock was what made her
hurry the wedding.21
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It is the author's notion that pressure was exerted from the respondent's end, since he
went ahead with marriage, notwithstanding the advice not to hasten marriage, passed
on from the person purportedly with the most influence on him, his mother.22
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The parish priest refused to marry them yet they persisted in doing so.23
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A statement of paramount importance is that made by his closest relative24, his brother
who described him as having a weak character and the with tendency to be subdued by
the respondent25. He reiterated such assertion by saying that “she used to control her
husband completely.. especially since B was too weak in character”26
The psychological report, as aforementioned, concluded that the relationship of the respondent
with her mother caused the former to suffer from a dire lack of psychological maturation which
rendered her to have a dependant personality at the time of consent.27 This is of a serious
concern to the extent that the report eventually concludes that “the marriage was not sustainable
or viable one since it was not between two equals but rather like a marriage between a parent
and a child (psychologically).”28
This conclusive part of the psychological assessment report should serve as hard evidence to
deduce that the respondent was not able to assume the essential obligations of marriage for
causes of psychic nature.29
As a primary intrinsic element, reciprocal and mutual love should be what drives two persons
to get married. It is therefore the mutual choice of each other which should prompt the idea of
marriage. Marriage requires both parties to fulfil their pertinent marital obligations, which is
instantaneously acknowledged at the moment of the exchange of consent.
If a spouse
21
Page 34 of the CSR, No. 22.
ibid., p 27, 41 No. 4.
23
ibid., p 56 No. 31.
24
ibid., p 59.
25
ibid., p 60 No. 6.
26
ibid., p 64 No. 24.
27
ibid., p 149.
28
ibid., p 154.
29
Canon 1095(3).
22
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consented to marriage for any other reason rather than being in love and wanting to spend the
rest of their life with the other spouse, inter-alia, such consent has been vitiated.
The right intentions aforementioned and the will to get married seemed to be absent in the mind
of the petitioner, which was confirmed in the psychological assessment.30 Permanence and
fidelity, when entering into marriage are universally presumed, yet these could have also been
possibly absent, in the mind of the petitioner during the time of consent. The undersigned
opines that the internal motive of the petitioner did not correspond with the external
manifestation of consent, and in light of the acts, statements, facts, circumstantial evidence,
and psychological assessments submitted, the level of moral certainty required to nullify
marriage on the ground of total simulation of consent, was reached.
Moreover, it is also the author’s view that both the exclusion of fidelity and indissolubility
should probably have been considered as grounds of nullity of marriage.
******************************THE END***********************************
30
Page 138 of the CSR.
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BIBLIOGRAPHY
Abdilla Stephanie, Marriage Annulment in the Catholic Church: Divorce Catholic Style? The
Maltese Situation (LLD, University of Malta 2012).
Hendriks J, Diritto Matrimoniale Commento ai Canoni 1055-1165 del Codice di Diritto
Canonico (Ancora, 1999)
Mortensen Beth M., The Relation of The Juridical and Sacramental in Matrimony, According
to Thomas Aquinas (Doctorate, Universitat Freiburg 2012).
9