Practical Case on the - PowerPoint Presentation

Slide1

Practical Case on the Good of the Spouses

Prof. Héctor FranceschiSlide2

General introduction1. Here we present a case of nullity according to the canon 1095, 3, which came to the Roman Rota after a first judgment

had been in the affirmative and the

judgment

of the second instance court

in the

negative

.

2.

The

first instance based its

judgment,

though in very

imprecise

terms, on the

incapacity of

the respondent to carry out his marital obligation (

bonum

coniugum

).

3.

As

can be deduced from a reading of the case, one of the fundamental elements to

be determined

, and on which more discussion could take place either in the doctrinal

and jurisprudential

fori

, is the minimal but necessary content of the good of the spouses and its

juridical dimension

.Slide3

Questions for DiscussionSlide4

Is it possible to speak – either with reference to exclusion or incapacity – of the good of the spouses as a right/duty or as an essential element of marriage? On what reasoning could this be based

?

Slide5

"The good of the spouses (...) reflects love, which should be considered under the juridic aspect, together with the recognized mutual rights and duties. (...) Pope John Paul II, viewing genuine love as distinct from a fleeting feeling, recalled that conjugal love is the same as the duty of love”. (Coram Caberletti

, 23 March 2013, n. 9).

"exclusion of

bonum

coniugum

(not unlike exclusion of offspring) invalidates marriage, it is not clear however that such an exclusion can include something substantial that is not

already present in the three

augustinian

bona

" (c. Burke, 26 November 1992, in RRT Dec., 84 [1992], pp. 583-584, n. 13 and n. 15).

“

Nevertheless

,

bonum

coniugum

is considered to

include something more

(...) ‘it can happen that someone may, having admitted the other bona, exclude only

bonum

coniugum

’(sent. c.

Defilippi

, 1 December 1995, in RRT Dec., 87 [1995], pp. 647-648, n. 9).” (Coram

Caberletti

, 23 March 2013, n. 10).

“

bonum

coniugum

could be translated into

right (obligation) to communion of life

understood in its rather broad sense (...)

juridically

translated into rights-obligations to

behaviours

within the interpersonal relationships proper to spouses and

juridically

relevant (M.F.

Pompedda

,

Studi

di

diritto

matrimoniale

canonico

, vol. 1,

Giuffre

, Milano 1993, pp. 305-307, 310).

“the authentic good of the spouses, (...)

consists simply in willing always and in every way the good of the other

, in working toward a true and indissoluble partnership of life" (Benedict XVI, Allocution to the Roman Rota, 26 January 2013, in

L'Osservatore

Romano

, 27 January 2013 [Year 153, n. 22], p. 7).

“

marriage is what it is by reason of its ends. Such ends pertain to the essence of marriage

. (...) all ends of marriage are linked and harmoniously coordinated and complementary in the unity of marriage, and the exclusion of some is not

possible. (...)

we are dealing with the exclusion of "of the ordination to the good of the spouses" as an

essential element

of the bond

itself.”

(

coram

Heredia, 29 October 2012, no. 7, in

Eastern Legal Thought

12 (2016), pp. 281-198 [here:

pp. 290-291])Slide6

Benedict XVI, Allocution to the Roman Rota,26 January 2013, no. 4 (L'Osservatore Romano, 27 January 2013 , p. 7)

"From a juridical and practical point of view, I realize the difficulty in extracting the essential element of

bonum

coniugum

, until now understood prevalently in relationship to the hypothesis of incapacity (

cfr

. CIC, can. 1095).

The

bonum

coniugum

assumes relevance also within the realm of simulation of consent

. Certainly [...] there will be an examination in the argument section (in facto) in order to ascertain the eventual foundation of this ground of nullity, prevalent or coexisting with another ground of the three

augustinian

'bona', procreation, exclusivity and perpetuity. Therefore, one is not to

prescind

from considering the fact that there could be some cases in which, precisely because of the absence of faith, the good of the spouses (

bonum

coniugum

) becomes compromised and,

that

is, excluded from the consent itself. For example, in the case of

subversion

on

the part of one of them, because of an erroneous concept of the nuptial bond,

of the principle of equality

, or

in

the case of

rejection of

the

dual union

which contradistinguishes the matrimonial bond, in relation to possible coexisting exclusion of fidelity

and

of the use of intercourse performed

humano

modo

"

. Slide7

Coram Caberletti, 23 March 2013, no. 10Eastern Legal Thought, 12 (2016) 223-258 [here: 244]

the

dignity of the other spouse as a human person and as the subject of conjugal communion pertains to the essence of

bonum

coniugum

.

“These

are indeed the rights-obligations to a peculiar, that is, specific

behaviour

of the spouses, which consist in the right to intimate joining of persons and tasks, by which the spouses perfect each other or in the right to interpersonal relationship that is specifically conjugal or in the right to the

behaviour

of the partner by which the spouse can obtain his or her peculiar psycho-sexual complement of a true

spouse”

(sent.

c.

Turnaturi

, 13 May 2004, in

Periodica

,

96 [2007], p. 72, n. 8).Slide8

Coram Defilippi, 21 March 2013, no. 10Eastern Legal Thought, 12 (2016) 2259-280 [here: 269-270]

The ordination of marriage to the good of the spouses

(

bonum

coniugum

),

because it is an essential element of marriage, constitutes the

essential object of consent

. These are indeed the

rights-obligations

to a peculiar or specific

behaviour

of on the part of the spouses,

which consist in

the right to an intimate joining of persons and actions, by which the spouses mutually perfect each other both with respect to the right to interpersonal relationship specifically conjugal and with respect to the

right to

behaviour

of the partner through which the spouse would be able to attain his or her unique psycho-sexual complement of a true spouse

(

cfr

. sent.

c.

the undersigned

Ponens,

27 July 1994, in

RRT Dec.,

86 [1994], p. 417, n. 10).

(...) Therefore, one who by a positive act of the will intends not

to

recognize

the

fundamental

rights of the other excludes the good of the spouses

(

bonum

coniugum

).

Slide9

b) What is your opinion concerning the affirmations reported in the case by judges of the first and second instance courts? Slide10

c) What do you think of the way in which in the two instances the judges worked through the formulation of the doubt, and eventually took a decision?

Slide11

coram Arokiaraj, 17 October 2012, no. 4Eastern Legal Thought, 12 (2016) pp. 315-327 [here: pp. 230-232])

“

error of law concerning the good of the spouses

(

bonum

coniugum

)

has not been provided as a ground of nullity by the law we are now using, keeping before our eyes canon 1099

CIC

(...) One can conclude that

according the law we use

the ground of error concerning the good of the spouses

(

bonurn

coniugum

)

simply does not exist

. (...)

Nevertheless

, it is likewise without doubt evident that

the procedural law

, both the old and the present,

has never sanctioned

or sanctions

an error of a judge in the determination of a ground (grounds) with any penalty or nullity

. (...) Nor is there any evidence that the Supreme Tribunal of the Apostolic

Signatura

has raised or dealt with questions of nullity of a sentence pronounced on a ground of nullity which is not supported by any norm, although it has warned tribunals several times for non-observance of forensic praxis.”Slide12

d) What is your assessment regarding the declarations of the parties and testimonies? Why were these conclusions made? Slide13

Do you think the conclusions of the expert can be shared? In order to give an answer, one needs to take into account

the anthropology

underlying the

decision of

the expert, the acts of

the case

, the motivations of the

expert enabling

to get to his conclusions.

Slide14

f) Finally, if you were one of the judges of the Rotal panel, would you give an affirmative or a negative sentence? What would be the reasons

in

iure

and

in facto

of your conclusion

?Slide15

Matrimonial breakdown is not necessary due to a defect in the consent “the ends of marriage, as "ordinations of the essence"

are always present

in a true marriage,

overlooking the fact that the same may have been realized or not

and the measure by which they might have been attained. Thus, we must consider false the argument which simply concludes from the ruin of the marriage in

favour

of its nullity because the good of the spouses

(

bonum

coniugum

) as

a community of life and love was not achieved.” (coram Heredia

26 February 2013

, no.

11, in

Eastern Legal Thought

12 [2016], pp. 329-382 [here:

p.

348])

"

In relation to this exclusion [of

bonum

coniugum

],

the same danger that threatens the correct application of the norms on incapacity seems to be repeated, and that is, the search for causes of nullity in behavior that do not concern the constitution of the conjugal bond but rather its realization in life. It is necessary to resist the temptation to transform the simple shortcomings of the spouses in their conjugal existence into defects of consent. Real exclusion can occur in fact only when the ordination toward the good of the spouses is harmed, excluded by a positive act of will.

Cases in which failure to recognize the other as spouse or when the essential ordering of the community of conjugal life to the good of the other is excluded are quite exceptional

.” (Benedict XVI,

Allocution to the Roman Rota

, 22 January 2011, in

Studies in Church

Law, vol. VII [2011], p. 12

).