The Nullity Crisis in Light of Canonical Tradition, Part I
Unhappy Marriage, Invalid Marriage?
The reasons behind the rise in the number of declarations of nullity over the past half-century are manifold: a wave of antinomianism followed the Second Vatican Council, leading to laxity in the application of canon law, and a false sense of mercy—which assumes that affirmative decrees are more “pastoral”—continues to influence legal proceedings. However, there is a more fundamental problem that cannot be rectified by simply providing better formation to canonists or more strictly following procedural law. The very definition of marriage has undergone a substantial change with the promulgation of the 1983 Code of Canon Law, and this—in conjunction with the introduction of newly-worded grounds of nullity—ultimately makes it difficult to defend the validity of a marriage when it is an unhappy one, leading to an epidemic of de facto Catholic divorces.
Canon 1055 §1 defines marriage as a “covenant by which a man and a woman establish between themselves a partnership of the whole of life and which is ordered by its nature to the good of the spouses and the procreation and education of offspring”. Canon 1057 §2 defines matrimonial consent as “an act of the will by which a man and a woman mutually give and accept each other through an irrevocable covenant in order to establish marriage”. This contradicts the 1917 Code, which defines marriage as a contract (c. 1012 §1) established by a man and a woman through exchanging the exclusive and perpetual right over the body as regards the act suitable for the generation of offspring (c. 1081 §2). Further, following traditional theology, it is specified that the primary end of marriage is the procreation and education of offspring, and that the secondary end is the mutual good of spouses and the lawful remedy for concupiscence (c. 1013 §1).
Canon 1055 §1 of the 1983 Code is theologically problematic, as it defines marriage as the “partnership” between the man and woman; in reality, this partnership is a result of the contract and does not constitute the actual object of matrimonial consent. Corresponding to this error, canon 1057 §2 then defines consent as the giving and accepting of each other, rather than of the right over the body, which implicitly makes the validity of consent contingent upon the parties’ ability to live together peaceably. Certainly, the parties should strive to “mutually give and accept each other” in the resulting “covenant” between them to have a happy marriage, but this is a matter quite distinct from validity. The exclusion of secondary rights—such as “cohabitation and regular sharing of bed and table” —from one’s otherwise proper consent  thus has no impact on the validity of the marriage.
Canon 1098 states that if one party deceived the other by malice in order to obtain consent, then the marriage is null if this concerns “some quality…which by its very nature can gravely disturb the partnership of conjugal life”. The word “conjugal” specifically refers to the sexual union; thus, canon 1098 would apply if, for example, one maliciously hid his sterility from the other (cf. c. 1084 §3). However, canon 1098 does not simply speak of “conjugal life”, but of the “partnership of conjugal life”, which—in light of canons 1055 §1 and 1057 §2—can be understood as referring to the relationship between the couple . Thus, more qualities can be considered: if a man hid his gambling problem prior to the wedding, and this causes conflict when his wife finds out, a tribunal may grant a declaration of nullity. Almost anything that bothers one of the parties can be falsely construed as a potentially invalidating factor, and if it can be demonstrated that there was a malicious effort to hide some defect of character before marriage, then the nullity case is—for all intents and purposes—concluded.
In considering the examples above, there is clearly a difference between hiding one’s infertility from the other and hiding one’s gambling addiction. The conflation of these situations, however, is only the logical result of inaccurately defining marital consent as the giving of oneself instead of the exchanging of the right over the body. A woman may reflect that she never would have consented to a relationship with a man if she had known, prior to marriage, of his financial irresponsibility—she can now argue that her consent was defective if it can be demonstrated that he maliciously hid this prior to the wedding. However, none of this derogates from the fact that the primary right was exchanged, unlike the case in which a woman knows that she would have never given a man the right over her body had she been aware of his infertility beforehand.
Aggravating the issue is canon 1095, which states that “those who suffer from a grave defect of discretion of judgment concerning the essential matrimonial rights and duties mutually to be handed over and accepted” (2°) or “who are not able to assume the essential obligations of marriage for causes of a psychic nature” (3°) cannot validly consent to marriage. What are these rights and duties? Because marriage has been redefined with secondary rights being included in the object of consent itself, a case can now be made on the basis of psychological problems that a person was unable to consent to marriage due to an inability to live peaceably with the other. There is now considered to be no marriage when one party is unable or unwilling to provide some kind of mutual help to the other, even if there is nothing preventing him or her from satisfying the marital debt itself.
Having established new definitions of marriage and matrimonial consent, tribunals can now abuse canon 1095, specifically 2°, to grant dubious declarations of nullity. The term “grave defect of discretion of judgment” appears to have been borrowed from an equivalent concept in penal law and applied—rather unsatisfactorily—to marriage law. There is a certain parallel between the ability to commit a canonical delict and the ability to enter into the marriage contract because both of these acts require the use of reason. Those who habitually lack the use of reason are equivalent to infants in law (c. 99) and considered not responsible for themselves; thus, it makes sense for canon 1095 1° to declare that “those who lack the sufficient use of reason” are “incapable of contracting marriage”.
Likewise, canon 1322 states that those “who habitually lack the use of reason are considered to be incapable of a delict”. Such persons cannot be subject to a penalty when they have violated a law or precept (c. 1323 6°), while those who had the imperfect use of reason or who lacked it based on drunkenness or mental disturbance can only be subject to a tempered penalty or a penance (c. 1324 §1, 1° and 2°). Canon 1095 1° corresponds to the former scenario, while canon 1095 2° is virtually equivalent to the latter, in which case there is a “grave defect of discretion of judgment”. But while it is logical to draw a certain parallel between penal law and marriage law, this is where the similarities end. A grave defect of discretion of judgment may render someone less culpable for violating a law or precept, but consent cannot be given to a greater or lesser extent. Now that secondary rights have entered into the object of consent, contrary to canonical tradition, it becomes possible to argue that one of the parties gave “imperfect” consent by excluding a secondary right, thereby rendering the marriage invalid under canon 1095 2°.
To be continued...
 Pius XII, Acta Apostolicae Sedis (1944), 172-200.  Of course, there are other factors that can render marriage invalid even if the primary right over the body was exchanged, such as if one or both parties, by a positive act of the will, excluded another essential property of marriage, such as unity or indissolubility (c. 1099). These issues will not be addressed here; rather, the point is simply that excluding secondary rights does not invalidate marriage, provided that no other invalidating factors exist.  Canons 1128-32 of the 1917 Code establish a distinction between conjugal relations and the communion of conjugal life, the latter of which refers to the sharing of the bed, table, and dwelling between the spouses.