Sentence coram Turnaturi, 22 November 2002 (Benevento, Italy)1

Condition, Error of Quality, and Deceit

1 — The Facts

1. During winter, that is, in February 1987, Diego and Cecilia, both notaries by profession, met

each other at a conference on the function of notary at the famous place of Dolomites. Attracted

by mutual sympathy, they first began as friends and then established a real engagement

relationship.

Although the woman had told the man that she was already previously married and that marriage

had already been dissolved through a dispensation from sacramental non-consummated

marriage, the couple continued their relationship and contracted marriage on 5 December 1987 in

the city of Napoli. The man had then completed his thirty-ninth year of age and the woman was

thirty-one years old. The conjugal relationship of the parties, however, did not have a stable and

definite residence due to the woman’s behavior. The couple however got together every

weekend, generally at Padova, where the man had a dwelling and was practicing his profession

and he himself wanted to establish their conjugal home there according to the woman’s pre-

nuptial promise, because of the condition attached by the man in contracting marriage.

But, since serious wrangling arose between the parties at Easter of 1988 due to the woman’s

behavior, not only the weekly meetings ceased but serious dissociation of minds and separation

occurred even before the beginning of April of the said year.

2. After the separation was in fact finalized, the man then, desirous of recovering his full

freedom, presented a petition to the Ecclesiastical Interdiocesan Tribunal of Benevento on 13

December 1988. By this petition he accused his marriage of nullity on three grounds which were

then discussed and admitted in the concordance of doubts as follows: “a) according to canon

1098, because of deceit with which the respondent had presented her matrimonial consent; and

also subordinately: b) according to canon 1097 §2, because of error which was present in my

[namely the petitioner’s] consent concerning the quality of the respondent directly and

principally intended by me; c) according to canon 1102 §2, because of non-verification of the

condition de praesenti to which I had subordinated my matrimonial consent.”

3. After completing the most difficult instruction of the cause because of the opposition between

the parties, a definitive sentence of the first grade was pronounced on 15 January 1992, in

general favoring the petitioner, by which the judges of Benevento declared that there was proof

of nullity of marriage due to deceit perpetrated by the woman, responding evidently to the doubts

that were joined: “Affirmatively to the first; and to the second and the third already provided in

the first.”

1 Sentence c. Turnaturi, 22 November 2002 (Benevento, Italy), in RRT Dec. 94 (2002) pp. 692-

727. English trans. by Rev. Augustine Mendonça, JCD. Translated and published with

permission of the Dean of the Roman Rota.

The petitioner appealed against the above sentence to Our Tribunal, the woman however

appealed to the Tribunal of Appeal of Campania.

The preliminary question concerning the competence of Our Sacred Tribunal proposed by the

respondent through her recourse was resolved by the Rotal decree of 14 December 1992. The

same decree denied confirmation of the affirmative sentence and the cause was submitted to an

ordinary examination of the second grade.

In fact, the Rotal Fathers, to whom it seemed that the ground of nullity “is not sufficiently proven

from the acts so that the sentence of Benevento which appears not to have decided on several

issues or to have been supported by futile argumentation” (decr. c. Pompedda, 14 December

1992, in RRT Decr. 10 [1992] p. 208, n. 12), thought, particularly because of the contradictions

between the parties, that the cause needed a more profound examination in the second grade, that

is, “a more accurate investigation, above all through acquisition at least of the acts which pertain

to the legal separation and to the cause concerning rejection of the paternity of the son brought

forth by the woman” (ibid., p. 209, n. 12).

4. With the completion of the supplementary instruction of the cause and the acquisition of

documents, the threefold doubt was joined in the second instance by the decree of 26 July 1993.

And this doubt was responded to by the Rotal sentence of 22 March 1996, by which the appealed

Fathers declared: “Negatively, that is, there is no proof of nullity of marriage in the case on any

of the adduced grounds.”

The petitioner legitimately interposed an appeal against the negative decision before the

following Turnus.

After completing ex officio further instruction of the cause, without the presence of the

advocates, and after settling, by the decree of the Turnus dated 19 October 1999, the question

concerning the expert report to verify the paternity of the child brought forth by the respondent

after her separation from her husband, both the advocates of the parties and the depute defender

of the bond finally presented their defenses.

5. After the day for the decision on the cause was set for 27 July 2000, the respondent’s

advocate, by his instance of 19 July 2000, sought from the Ponens an extension of time in order

to present a brief of response and indicated that he intended to seek from the Dean an

enlargement of the Tunrus.

Thus, by the decree dated 20 July 2000, the session of the Turnus to decide on the cause was

postponed to 19 October 2000. Prior to this, however, the respondent’s advocate, through

another instance of 19 July 2000, by adducing several reasons, which really do not correspond to

the truth, had sought from the Dean of Our Tribunal enlargement of the Turnus, and after hearing

only Senior Auditors this was granted by the decree of 19 October 2000, entrusting the cause to

five Auditors.

By his decree of 26 October 2000, the Ponens therefore determined that the Turnus established

for deciding the cause must be delayed further, namely “due to enlargement of the College,

constituted by the decree of the Dean, after hearing only the instance of one advocate and

without consulting me, that is to say, in order that the newly added Fathers may be able to attend

to the study of the cause.”

6. But then the petitioner’s advocate, by his instance of 2 January 2001, insisted “that the

enlarged Turnus coram quinque consider its own absolute incompetence,” because he was

convinced that “the positive law which we are using does not allow the Dean to expand the

Turnus by increasing the number of Auditors coram quinque and that too in the middle of the

cause and without hearing the other party, in fact without hearing even the Ponens himself.”

Thus, the Ponens determined by the decree of 22 January 2001: “The issue concerning the

illegitimacy of the raising or augmentation of the Turnus coram quinque Judges shall be

admitted to discussion and be resolved through written briefs.”

7. The respondent’s advocate did not keep quiet; he presented his petition on 17 February 2001

and raised several exceptions against the decree of the Ponens. In it he noted that the

contradictorium was not legitimately established and that the decree of the Dean most certainly

could not be challenged because he thought that it has not been determined anywhere by law,

rather it was contrary to the procedural logic, and therefore the Turnus was incompetent to deal

with such a question; but he openly declared, that is, arrogantly declared that the Ponens “as

judge” is suspect to deal with the incidental question because he had expressed his mind in his

decree of 26 October 2000 and added: “therefore this act constituted a formal request that You

recuse yourself from judging if you consider this appropriate.”

That was not all, because in case the Ponens failed to recuse himself from judging the cause the

respondent’s advocate thought that the above mentioned petition must be considered “as an

exception of suspicion, and for its resolution he asked that the acts be forwarded to the Supreme

Tribunal of the Apostolic Signatura, for competence.”

As the illustrious advocate of the respondent was given ample freedom to exercise his right, he

presented to the Supreme Tribunal of the Apostolic Signatura a formal petition on 15 March

2001 by which he first raised an exception of “incompetence of the Roman Rota and of the

Turnus to decide on the legitimacy of the decree of the Dean, and in the case, of the decree of 19

October 2000, and then proposed “recusal against the Ponens, because he had already clearly

expressed his mind both on the incidental question (legitimacy of the Dean’s decree) and on the

merit (the respondent’s credibility in the cause concerning the merit).”

8. After [reviewing] the voluminous vota of the promoter of justice and substitute defender of the

bond, dated 19 and 29 September 2001 respectively, the Supreme Tribunal of the Apostolic

Signatura rejected the twofold petition of the respondent’s advocate, that is, the first and the

second question by its decrees of 19 November 2001 and 28 February 2002.

With respect to the first, that is, “incompetence of the Roman Rota and particularly of the Turnus

to judge the legitimacy of the decree of the Dean,” the Supreme Tribunal declared and decreed

that it “cannot be considered, therefore not considered,” “in view of the fact that there is in the

case no Rotal decision that can be impugned, which is mentioned in art. 122, 1° of the Apostolic

Const. Pastor bonus.”

As to the second question, that is, about the recusal of the Ponens, it decreed that “there is no

reason for recusal of the Auditor” also because the arguments proposed by the respondent’s

advocate were “not at all convincing” to the Fathers assembled in Congresso on 28 February

2002.

9. Once these issues were resolved, the petitioner’s advocate, by his instance of 15 March 2002,

requested that the Turnus consider its own competence together with the merit of the cause in

accord with the norm of canon 1589 §2.

After carefully considering the above petition and having received in advance the opinions both

of the promoter of justice, dated 8 April 2002, and of the defender of the bond, dated 7 May

2002, who thought that “In order to avoid any useless delay, the practical solution proposed by

the illustrious advocate of the petitioner could be allowed,” it was determined by the decree of 8

May 2002 that the frequently raised question concerning the competence of the Turnus must be

remitted to and considered on the day the principal cause would be decided.

10. Having properly explained everything said above, now the Undersigned [Auditors] have to

respond, first to the proposed preliminary question: Whether the Turnus enlarged to coram

quinque is legitimate, and if the response is affirmative, in the third grade of trial, to the doubt

determined by the decree of 9 October 1997: Whether the Rotal sentence of 22 March 1996

should be confirmed or overturned in the case, that is, whether there is proof of nullity of

marriage in the case: 1) on the ground of condition attached by the man and not verified; 2)

because of error in the man; 3) because of deceit caused in the man.

I – Competence of the Turnus enlarged to coram quinque

2 — The Law and the Argument

11. The Fathers thought and decided that the Rotal norms now in force, as they have been

approved in forma specifica, not only have the faculty to derogate from the prescripts of the

Code of Canon Law but also grant to the Dean ample faculties, especially with regard to the

constitution of Turni according to the mind of art. 18 §3, which, as the new law acknowledges to

the same Dean the discretionary faculty, including free choice of motives (from the good of souls

to the benefit of the parties or to resolve personal difficulties of the Auditors), either to constitute

Turni over and above three Judges or to change Turni already constituted, that is to say, to

enlarge or lessen them, by observing what should be observed.

It would have been illegitimate to limit the term “constitute,” mentioned in the above said art. 18,

to the initial constitution of the Turni, when the expression should be understood in a general and

proper sense and not subjected to any limitation.

The Dean in fact constitutes the Turnus either when he sets up a tribunal of three Auditors or

increases or diminishes the number of Auditors when the cause is pending.

The Fathers therefore decided to respond to the proposed question as they respond: Affirmatively,

that is, the enlargement of the Turnus coram quinque is legitimate.

I – De Turni competentia coram quinque aucti

2 — In iure et in facto

11. Censuerunt atque statuerunt Patres vigentes normas rotales, utpote forma specifica

adprobatas, nedum facultate gaudere derogandi Codicis luris Canonici praescriptis verum

peramplas facultates Exc.mo Decano tribuere, praesertim Turnorum constitutionem quod attinet

ad mentem art. 18, §3, qui, utpote nova lex agnoscit eidem Decano facultatem discretivam,

inclusa libera electione motivorum (a bono animarum usque ad commodum partium vel ad

personales difficultates Auditorum solvendas) sive constituendi Turnos praeter numerum trium

Iudicum sive immutandi Turnos iam constitutos scilicet istos augendi vel minuendi, servatis

servandis.

Illegitimum esset restringere terminum «constituere,» de quo in praefato art. 18, ad initialem

constitutionern Turni, cum terminus sumendus est sensu generali atque proprio nec limitationi

subiiciendus est.

Decanus enim Turnum constituit sive cum tribunal trium Auditorium erigit sive cum pendente

causa Auditorum numerum auget vel minuit.

Propositae quaestioni ideo Patres respondendum esse statuerunt uti respondent: Aftirmative, seu

legitimum esse Turnum coram quinque auctum.

II – The Merit of the Cause

A) Deceit

2 — The Law

12. The matrimonial 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 (cf. can. 1055 §1), is born of the parties’ consent.

Canon 1057 in fact determines, “The consent of the parties, legitimately manifested between

persons habiles by law, makes marriage; no human power is able to supply this consent” (§1).

“Matrimonial consent is 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” (§2).

A true and genuine self-giving and acceptance of the other can exist only when it proceeds from

the sincerity of both parties and by this it settles in choosing and contracting marriage and in

constituting and living out a conjugal communion of life and love.

The Second Vatican Council teaches: “Intimate community of life and conjugal love [...] is

established by the personal consent. Thus the institution which is confirmed by the divine law

comes into being through a human act, by which the spouses mutually give and accept each

other. [...]; for the good of the spouses, of the children, and of society this sacred bond no longer

depends on the human decision alone” (Second Vatican Council, Pastoral Constitution on the

Church in the Modern World, Gaudium et spes, n. 48).

13. Marriage is indeed, among all human relationships, the most distinguished and most sublime

form and species of interpersonal relationship, which is generally brought about between persons

inasmuch as they themselves, mutually, discover and approve of special qualities, which they

consider necessary and useful to establish and gradually foster an intimate conjugal relationship

marked by common understanding and affection.

A true and sincere gifting is necessary for establishing conjugal partnership so that the spouses

mutually give and accept each other by means of an irrevocable covenant in order to constitute

marriage.

14. The Magisterium of the Church also commends the sincere giving which is demanded in

marriage: “The Council—recalls John Paul II—saw marriage as a covenant of love” (John Paul

II, Allocution to the Roman Rota, 28 January 1982: AAS 74 [1982] p. 450, n. 3), in which “the

marriage consent is an act of the will which signifies and involves a mutual giving which unites

the spouses between themselves and at the same time binds them to the children which they may

eventually have, with whom they constitute one family, one single home, a ‘domestic Church’

(LG n. 11)” (ibid., pp. 450-451, n. 4).

Under this aspect, that is, in their mutual giving, marriage consent “is a commitment in a bond of

love, where in the same gift there is expressed the agreement of wills and hearts to realize all that

marriage is and signifies for the world and for the Church” (ibid., p. 451, n. 4).

In such a giving, “One who gives oneself does it with the awareness of obliging oneself to live

one’s giving of oneself to the other. If one grants to the other person a right, it is because one

wishes to give oneself; and one gives oneself with the intention of obliging oneself to carry out

what is required by the total giving one has freely made. If from the juridical point of view these

obligations are more easily defined, if they are expressed more as a right one gives than an

obligation one assumes, it is also true that the giving is only symbolized by the obligations

arising from a contract, which expresses on the human level the obligations inherent in every true

and sincere marriage consent. It is in this way that one is able to understand the teaching of the

Council and also to rediscover the traditional teaching by seeing it in a deeper and at the same

time more Christian light” (ibid., pp. 451-452, n. 6).

15. A sentence coram Defilippi of 4 December 1997 appropriately and very elegantly explains

this. It maintains that the efficient cause of marriage, that is, the conjugal consent cannot be

separated from the genuine self-giving, which “to be really conjugal, requires that both

contracting parties present to each other an adequate image of self corresponding to the reality.

Otherwise, if one were to present an image of self that is really substantially different from the

truth, the object of consent of the other party, which would not correspond to the reality, would

be vitiated; the consent would indeed be inadequate and defective particularly on the part of the

one who presents an image of self that is substantially different from reality, because this manner

of acting would contradict genuine conjugal self-giving” (sent. c. Defilippi, 4 December 1997:

RRT Dec. 89 [1997] p. 855, n. 3), and he adds, “Deceit must be counted among the causes which

can provoke defect of consent because of a more or less grave defect of genuine conjugal self-

giving” (ibid.).

For, deceit “concerning some serious personal defect invalidates the authenticity of such a giving

of oneself proper to marriage (cf. decr. c. Serrano Ruiz, 2 June 1989, Umuahiaen., n. 8)” (sent. c.

Burke, 18 July 1996: RRT Dec. 88 [1996] p. 540, n. 21), which pointedly adds: “Therefore the

cause of invalidity is not the disturbance exerted on the partnership of conjugal life, but the

original deception about the defect that causes the disturbance. The juridic reason is quite clear:

there is no right to conjugal life free of disturbance; however, there certainly is the right to one’s

not being induced into marriage by concealing some notable negative quality which the other

party possesses. In other words, although no one has a right to find a husband or a wife without

defects, all have the right so that the matrimonial consent given by the other party represents a

gift, in fact sincere and without deceit, of the person as he or she really is (cf. sent. c. the

undersigned Ponens, 26 November 1992: RRT Dec. 84 [1992] p. 585, n. 17)” (ibid.; cf. sent. c.

the same undersigned Ponens, 26 November 1992: ibid. p. 585, n. 17).

16. One can invalidate the marital self-giving through conscious and deliberate denial of some

essential property or element pertaining to the nature and integrity of marriage.

All agree that the distinguished example of a voluntary and substantial defect of sincerity in

conjugal self-giving depends on simulation.

In fact, the defect of sincerity is evident in simulation, therefore a constitutional defect of trust

for effecting conjugal giving.

This is however more serious in deceit perpetrated for the purpose of obtaining consent.

“Matrimonial consent—it is appropriately stated in a sentence coram Burke—is that act by

which each spouse gives self as spouse to the other [...]. One who does not make a true conjugal

self-giving does not really consent. This happens in a case of simulation, because the contractant

excludes from his or her consent marriage itself or one of its aspects (can. 1101 §2), and thus that

consent turns out to be ‘non-conjugal.’ It can also happen when someone, although he or she

may decide to accept the essential elements and properties of marriage, offers some ‘self’ giving

of oneself which does not correspond to reality, because it is falsified by deliberate deceit” (sent.

c. Burke, 25 October 1990: RRT Dec. 82 [1990] p. 723, n. 4).

17. Such a defect or vice or falsification of conjugal self-giving due to defect of sincerity

becomes more serious in deceit or due to deceit both on the part of the one who deceives and on

the part of the one deceived, because due to the defect of correct knowledge of the other party,

caused by deceit, a genuine and connatural self-giving is impeded and a serious wound is

inflicted on the freedom of choice, through which the one marrying acquires the right to the use

[of self-gift].

According to canon 1098: “A person contracts invalidly who enters into a marriage deceived by

malice, perpetrated to obtain consent, concerning some quality of the other partner which by its

very nature can gravely disturb the partnership of conjugal life.”

In the above-cited canon, which is now included in the positive law, three things must be

considered according to the Legislator’s mind, in order for a marriage to be regarded as invalid

due to fraudulent error: 1) One who marries must be deceived by fraud perpetrated in order to

obtain consent; 2) deceit must concern a quality of the party; 3) and this quality by its very nature

can disturb the partnership of conjugal life, that is, communion of the whole of life.

“For the disturbance to be relevant according to the norm of canon 1098, it is necessary that it

substantially affects the marital partnership, that is to say, with respect to its essence, properties

or ends” (sent. c. Burke, 25 October 1990: RRT Dec. 82 [1990] p. 726, n. 16).

And the same Ponens observes in the sentence of 26 November 1992: “It is necessary to note

that the invalidity of consent is rooted not in the negative quality considered in itself, not even its

gravity, but in the deceit through which the consent was obtained” (sent. c. Burke, 26 November

1992: ibid. 84 [1992] p. 585, n. 17).

And in fact, “It is really a third party—the deceiving party—who, through deceit, falsifies the

cognoscitive perception of the eventual candidate and manipulates, with this, the decisional

process of the contracting party for the purpose of determining his or her choice of the spouse.

Therefore, behind deceit there is a substitution of the true protagonist, let alone the master, of the

voluntary nature of the matrimonial consent, in that this contains the personal choice of the

spouse, which pertains to the contracting party. This base and unacceptable manipulative

intervention on the part of a third person is an attempt directed at the real character of the

decisional process which by its nature pertains exclusively to the mastery of the contractant

him/her self” (P.J. Viladrich, Il consenso matrimoniale, trad. it. [Milano: Giuffrè, 2001] p. 216).

18. Although everyone who is deceived errs, error and deceit are not to be confused. Indeed,

while in error the subject makes an erroneous judgment concerning the object of consent and he

or she must be considered as the author of the defect in the conformity or agreement between his

or her idea and reality, which is different or concealed, in deceit there is another or a third person

who by means of deceit fabricates or represents a false reality so that it gives rise in the subject

deceived by fraud an apparently ‘true’ perception of an object that is considered in and of itself

false.

“Even though any person who is deceived errs, error and deceit are not to be confused. While in

error the subject makes a false judgment concerning the object and is the author of the lack of

correspondence between his or her idea and reality, in deceit it is a third person who, through

fraud, fabricates a false reality which gives rise in the subject to an apparently ‘true’ perception

of an object that is in itself false” (P.J. Viladrich, Commentary on canon 1098, in Code de droit

canonigue, Édition francaise bilingue e annotée, ed. by E. Caparros, M. Theriault, J. Thorn

[Montréal: Wilson & Lafleur, 1990] p. 635).

“While in error the subject makes a false judgment concerning the object, but the same subject is

the author and the one responsible for the lack of conformity between his or her idea and reality,

in deceit, on the contrary, there is a third party who fabricates, through fraud, a false reality for

the purpose of producing in the deceived party an apparently true perception of an object that is

in itself false” (Viladrich, Il consenso matrimoniale, p. 214).

One must likewise keep in mind the distinction between error and condition, in view of the fact

that, as Rotal jurisprudence teaches, “The difference appears also in the origin: for, doubt which

bears down on the mind with respect to the existence of the quality gives rise to condition,

against which one sets up self-protection by attaching a condition (cfr. Acta Sanctae Sedis, vol.

XIV, p. 154, III, cit. in una Nullitatis matrimonii coram Solieri, 19 February 1924); and on the

contrary, error dans causam is produced by the conviction in which one erroneously is or led into

concerning the existence of the quality” (sent. c. Mannucci, 13 July 1926: RRT Dec. 18 [1926],

p. 230, n. 2; cf. sent. c. Palestro, 17 December 1986: ibid. 78 [1986] p. 730, n. 5).

“One who is in error wants because he or she does not know, one who places a condition knows

he or she does not know and, therefore, wants the conditioned event subordinately to the

conditioning event; the one in error is convinced of the existence of a fact which does not exist,

whereas one who conditions is in doubt about the existence of a fact” (M. Ferraboschi, Il

matrimonio sotto condizione [Padova: 1937] p. 43; cf. sent. c. Funghini, 24 February 1988: RRT

Dec. 80 [1988] p. 145, n. 10; sent. c. Defilippi, 28 March 1995: ibid. 87 [1995] p. 224, n. 8).

19. As to the validity of consent in a hypothesis of deceit, it can happen in two ways, either

because in deceit perpetrated by the other party there is malice and therefore “the violation [...]

of right causes the consent of the contractant to move toward the object that is completely

different from the one he or she thinks of choosing; hence it happens that the freedom and

authenticity of his or her consent are vitiated” (sent. c. Burke, 25 October 1990: RRT Dec. 82

[1990] p. 724, n. 5), or because on the deceiver’s part there lacks a genuine giving, since it is

evident in either hypothesis that the contractant who deceives or due to the deception perpetrated

by a third person “offers some semblance of self, which really differs substantially from the

reality of his or her person. The object of his or her consent, in the case, is vitiated; therefore,

when the consent of that person is deficient, the invalidity of consent of the other party also

follows. Thus, according to this analysis, the reason for invalidity should be found in the

inadequate and vitiated consent of the one who possesses the quality concealed through deceit”

(ibid., n. 6).

20. But deceit should be considered also on the part of the one deceived because deceit causes

the nullity of consent not only on the part of the deceiver but also on the part of the one deceived.

Under the first aspect it is seen as machination, trickery and cunning of another in order to

deceive; and this deception is said to be “either positive, by doing or saying something by which

the other is led into error, or negative by simulating or concealing something in order have the

fortuitous error of another confirmed and used for personal end” (G. Michiels, Principia

generalia de personis in Ecclesia [Parisiis-Tornaci-Romae: 1955] p. 660).

On the part of the person deceived however, deceit is understood as an event of deception,

subsisting in deceptive, that is, fraudulent error.

“The key point in every case, in the prospective of how the deceit was carried out by the

deceiving party, is that there is an objectivity of the deceitful action, whatever may be its

modality, and [there is] the link of causality between this deceitful action and the presentation of

consent” (Viladrich, Il consenso matrimoniale, p. 222).

21. Consequently, there is in the deceit that has been perpetrated an appropriate manipulation

carried out by the other party or by some other person to create a completely false act of

knowledge in the subject who is and who becomes a victim of a fraudulent action.

Under this aspect, that is, on the part of the one deceived, deceit is distinguished into “deceit that

causes, that is, determines” and “incidental deceit”: “the former occurs when deceit determines

the will in such a way that without the error aroused through deceit of another, the contract

would never have been posited; the latter however occurs when it influences the very

determination of the agent, although perhaps it exerts influence on the secondary aspects of the

contract, so that the contract would have been entered upon even without the error caused

through the deceit of another person, although perhaps under different conditions less onerous to

the agent” (Michiels, Principia generalia de personis in Ecclesia, pp. 661-662).

Whether it is substantial or accidental deceit or error provoked by deceit does not change the

effects.

22. “For, in accidental deceit also, which provokes accidental error, not only canonical equity,

but also justice itself demands that the injustice inflicted by deceit be repaired” (sent. c.

Stankiewicz, 27 January 1994: RRT Dec. 86 [1994] p. 63, n. 13).

According to the mind of canon 125 §2, “An act placed [...] out of malice is valid unless the law

provides otherwise. It can be rescinded, however, through the sentence of a judge, either at the

instance of the injured party or of the party’s successors in law, or ex officio.”

“But, in the case of marriage, because we are dealing with a juridic act which cannot be

rescinded through the sentence of a judge or because of its indissolubility, the above-mentioned

norm of the Code stated in canon 1098 offers relief, and this norm seems to be “of ecclesiastical

law, and not of natural law, as certain authors and some decisions of Our Tribunal, which are

indeed quite rare, have affirmed, and this norm does not seem applicable to marriages celebrated

prior to the promulgation of the new Code.

“For, the influence of deceit on marriage consent flows directly and immediately from motivated

error and only indirectly from the deceitful action” (sent. c. Bruno, 19 November 1993: ibid. 85

[1993] p. 674, n. 3).

As the above-cited decision coram Stankiewicz observes, “If in fact it is a matter of marriage,

which is indissoluble by divine law (cf. cann. 1056, 1141), rescissory action on the ground of

deceit cannot be admitted. However, in order to safeguard against serious injustice and also

serious violation of internal freedom, which might be caused by the machination of the other

person that induces the deceptive error for the purpose of extorting consent, if no remedy were

given against the deliberately perpetrated deception, the ecclesial law founded on natural equity

sanctions the action of nullity of marriage celebrated because of fraudulent deceit in these words:

‘A person contracts invalidly who enters into a marriage deceived by malice, perpetrated to

obtain consent, concerning some quality of the other partner which by its very nature can gravely

disturb the partnership of conjugal life’ (can. 1098)” (sent. c. Stankiewicz, 27 January 1994: p.

63, n. 15).

The question has not been raised in the case, because we are dealing with a marriage celebrated

during the regime of the new Code of Canon Law, nevertheless one cannot apodictically exclude

the fact that deceit flows from the violation of natural right, particularly when it is a matter of

substantial error.

23. Anyway, the act of knowledge necessary to consent in both contractants must be genuine,

since it must by its very nature correspond to self-determination and indeed to self-giving of the

contracting parties.

Therefore, attempts or means used to impede or limit the cognitive process of the other party,

since it is a prerequisite of the act of the will, and indeed a deception that can hardly be

reconciled with the dignity of the sacrament, constitute in themselves grave elements of deceit,

which, according to the Legislator’s mind become the cause of the nullity of marriage.

The conjugal self-giving, which is the object of matrimonial consent, must be authentic.

“Finally, the decree corm Serrano wisely notes that deceit robs the sacred covenant of marriage

itself of the sincerity of minds and objective (although remaining unaffected about persons and

between persons) truth, which render it substantially ineffective” (decr. confirm. c. Serrano, 28

May 1982: RRT Dec. 74 [1982] p. 324, n. 27).

Deceit in fact disturbs in matrimonial matter, “the very substance of consent, stripping it not only

of true mutual giving and accepting of both spouses through an adequate intentional image of

each other, but also of the truth which pertains as such to the consent itself” (decr. confirm. c.

Serrano, 2 June 1989: in Monitor ecclesiasticus 115 [1990] p. 237, n. 8).

24. Now fraudulent deception must concern particularly the quality of the other party, whom the

person deceived decides to marry, “which by its very nature can gravely disturb the partnership

of conjugal life” (can. 1098), that is to say, leaving aside the qualities which are perhaps of great

importance to the deceived party and which nevertheless do not or cannot substantially affect the

nature of conjugal partnership.

“However—the above-cited decision coram Defilippi rightly and appropriately notes—if ‘the

objective criterion’ prevails in establishing the suitability of a quality to cause grave disturbance

of marriage, also the ‘subjective criterion’ of the person deceived by fraud must be weighed. We

are in fact dealing with a quality ‘which not only objectively—as one can think of addiction,

questionable wealth in the matter under consideration, ‘by its nature’—but also and especially in

the subjective estimation of the other party must have relevance, so that it gravely disturbs the

communion of conjugal life” (I.M. Serrano Ruiz, Commentary on can. 1098, in Commento al

Codice di diritto canonico [Roma: PUU, 1985] p. 646). For, “to a quality, which one may

consider as of no or little value, someone else may attach great importance, in view of the

peculiar mental disposition, culture and customs of the society in which he or she lives. The

distinguished Luigi Chiappetta appropriately notes: ‘It is the judge who evaluates the concrete

gravity, without however attending exclusively to the objective criteria and by taking into

consideration the circumstances of the milieu and culture and common sense, which provide

even to them a character of relative objectivity’ (L. Chiappetta, Il matrimonio nella nuova

legislazione canonica e concordataria [Roma: Edizioni Dehoniane, 1990] p. 221, n. 636)’ (sent.

c. Bruno, 19 November 1993: RRT Dec. 85 [1993] p. 675, n. 4c)” (sent. c. Defilippi, 4 December

1997: RRT Dec. 89 [1997] pp. 858-859, n. 6).

In other words, in the case of grave disturbance of marriage, not only the objective gravity is to

be considered, which is undoubtedly prevalent, but also the subjective gravity, this is the

importance which the deceived party, because of his or her constitution or judgment, attributes to

a determined quality must be weighed.

II – De causae merito

A) De dolo

2 — In iure

12. Matrimoniale foedus, quo vir et mulier inter se totius vitae consortium constituunt, quodque

indole sua naturali ad bonum coniugum atque ad prolis generationem et educationem ordinatur

(cf. can. 1055, §1), e partium consensu enascitur.

Statuente enim can. 1057 «Matrimonium facit partium consensus inter personas iure habiles

legitime manifestatus, qui nulla humana potestate suppleri valet» (§1).

«Consensus matrimonialis est actus voluntatis, quo vir et mulier foedere irrevocabili sese mutuo

tradunt et accipiunt ad constituendum matrimoniurn» (§2).

Vera germanaque traditio suiipsius atque acceptatio alterius exsistere potest tantum cum a

sinceritate utriusque partis procedat hacque considat in eligendis vel ineundis nuptiis atque in

constituenda atque ducenda coniugali communione vitae et amoris.

Docente Synodo Vaticana II «intima communitas vitae et amoris coniugalis [...] irrevocabili

consensu personali instauratur. Ita actu humano, quo coniuges sese mutuo tradunt et accipiunt,

institutum ordinatione divina firmum oritur [...] hoc vinculum sacrum intuitu boni tum

coniugum, tum prolis, tum societatis, non a humano arbitrio pendet» (Const. past. Gaudium et

spes, n. 48).

13. Matrimonium etenim est inter omnes humanas relationes eminentissima altissimaque forma

speciesque interpersonalis relationis, quae generatim efficitur inter personas quandoquidem

ipsaemet, ad invicem, peculiares qualitates inveniunt probantque, quas necessarias utilesque

existimant ad constituendam atque fovendam in dies intimam relationem coniugalem communi

aestimatione atque affectione insignitam.

Oportet adsit in coniugali consortione instauranda vera sinceraque donatio adeo ut vere coniuges

foedere irrevocabili sese mutuo tradant et accipiant ad constituendum matrimonium.

14. Sinceram donationem, quae exigitur in matrimonio, commendat quoque Ecclesiae

Magisterium: «Il Concilio – commemorat Ioannes Paulus II – ha visto il matrimonio come patto

d’amore» (Ioannes Paulus II, Allocutio ad Rotam Romanam, diei 28 ianuarii 1982, in AAS, 74

[1982], p. 450, n. 3) in quo «il consenso nuziale è un atto di volontà che significa e comporta un

dono mutuo, che unisce gli sposi tra di loro e insieme li lega ai loro eventuali figli, con i quali

essi costituiscono una sola famiglia, un solo focolare, una ‘chiesa domestica’» (ibid., pp. 450-

451, n. 4).

Hoc sub adspectu seu in mutua donatione consensus matrimonialis «è un impegno in un vincolo

di amore dove, nello stesso dono, si esprime l’accordo delle volontà e dei cuori per realizzare

tutto quello che è e significa il matrimonio per il mondo e per la Chiesa» (ibid., p. 451, n. 4).

In eiusmodi donatione, «colui che si dona, lo fa con la consapevolezza d’obbligarsi a vivere il

suo dono all’altro; se egli all’altro concede un diritto, è perché ha la volontà di donarsi; e si dona

con l’intenzione di obbligarsi a realizzare le esigenze del dono totale, che liberamente ha fatto.

Se sotto il profilo giuridico questi obblighi sono più facilmente definiti, se vengono espressi più

come un diritto che si cede, che come un obbligo che si assume, è pur vero che il dono non è che

simbolizzato dagli impegni di un contratto, il quale esprime sul piano umano gli impegni inerenti

ad ogni consenso nuziale vero e sincero. È così che si giunge a comprendere la dottrina

conciliare, cosi da consentirle di recuperare la dottrina tradizionale per collocarla in una

prospettiva più profonda ed insieme più cristiana» (ibid., pp. 451-452, n. 6).

15. Congrue perbelleque edicit una coram Defilippi, quae tenet causam efficientem matrimonii

seu coniugalem consensum seiungi non posse a germana autodonatione, quae «ut reapse

coniugalis sit, requirit ut uterque contrahens adaequatam imaginem sui alteri praebeat, quae

realitati correspondeat. Secus si aliquis aliquam speciem suiipsius donaret, quae revera

substantialiter differt a veritate, vitiaretur obiectum consensus alterius partis, quod realitati non

corresponderet; immo consensus inadaequatus vitiatusque esset praesertim ex parte illius, qui de

se imaginem subslantialiter diversam a realitate praeberet, cum haec agendi ratio contradiceret

genuinae autodonationi coniugali» (sent. c. Defilippi, diei 4 decembris 1997, in RRT Dec., 89

[1997], p. 855, n. 3), quique addit: «Inter causas, quae provocare possunt vitium consensus ob

plus minusve gravem defectum genuinae autodonationis coniugalis, annumerandus est dolus»

(ibid.).

Etenim dolus «circa aliquem gravem defecturn personalem infirmat authenticitatem illius

donationis suiipsius matrimonio propriae (cf. decr. c. Serrano Ruiz, diei 2 iunii 1989,

Umuahiaen., n. 8)» (sent. c. Burke, diei 18 iulii 1996, in ibid., 88 [1996], p. 540, n. 21), qui acute

addit: «Causa ergo invaliditatis non est perturbatio consortio vitae coniugalis reapse causata, sed

illa primigenia deceptio circa perturbantem defectum. Ratio iuridica sane patet: non datur ius ad

vitam coniugalem a turbatione expertem; utique tamen datur ius ne quis in matrimonium

inducatur per occultationem alicuius notabilis negativae qualitatis quam altera pars possidet.

Aliis verbis, quamvis nemo gaudet iure inveniendi maritum vel uxorem sine defectibus, omnes

ius habent ut consensus matrimonialis ab altera parte datus repraesentet donum, sincerum

quidem ac sine dolo, istius personae sicut realiter est (cf. sent. c. infrascripto Ponente, diei 26

novembris 1992, in RRT Dec., 84 [1992], p. 585, n. 17)» (ibid.; cf. sent. c. eodem Ponente, diei

26 novembris 1992, in ibid., 84 [1992], p. 585, n. 17).

16. Maritalem auto-donationem quis inficere potest per consciam deliberatamque denegationem

alicuius proprietatis vel elementi essentialis ad naturam vel integritatem matrimonii pertinentis.

Inter omnes constat eximium exemplum voluntarii ac substantialis defectus sinceritatis in

coniugali auto-donatione pendere a simulatione.

In simulatione etenim patet defectus sinceritatis ideoque constitutionalis defectus fidei pro

efficienda coniugali donatione.

Gravius autem evenit in dolo patrato consensum obtinendi gratia. «Consensus matrimonialis –

congrue edicitur in una coram Burke – ille actus est quo unusquisque coniux seipsum alteri

coniugaliter tradit [...]. Qui veram autodonationem coniugalem non facit, in matrimonium reapse

non consentit. Hoc accidit in casu simulationis, cum contrahens ipsum matrimonium vel aliquem

eius aspectum a suo consensu excludit (can. 1101, §2), qui ita consensus ‘non-coniugalis’ fit.

Accidere quoque potest cum quis, quamvis essentialia elementa proprietatesque matrimonii

accipere constituat, proferat quandam ‘auto’ donationem suiipsius realitati non correspondentem,

quia ob dolum deliberatum falsificata est» (sent. c. Burke, diei 25 octobris 1990, in RRT Dec., 82

[1990], p. 723, n. 4).

17. Eiusmodi defectus seu vitium seu falsificatio coniugalis autodonationis ob defectum

sinceritatis gravius fit in dolo vel ob dolum sive ex parte dcceptoris sive ex parte decepti, quia ob

defectum rectae alterius partis cognitionis, ex dolo ortum, germana ac connaturalis auto-donatio

impeditur ac vulnus grave in libertatem eligendi, qua ius habet utendi nubens, infertur.

Ad mentem can. 1098 «Qui matrimonium init deceptus dolo, ad obtinendum consensum patrato,

circa aliquam alterius partis qualitatem, quae suapte natura consortium vitae coniugalis graviter

perturbare potest, invalide contrahit».

In praecitato canone, qui nunc iuris positivi habetur, tria spectanda veniunt, iuxta Legislatoris

mentem, ut matrimonium invalidum agnoscatur ob errorem dolosum: 1. qui matrimonium init

oportet deceptus sit dolo ad obtinendurn consensum patrato; 2. deceptio vertere debet circa

qualitatem alterius partis; 3. quae qualitas suapte natura consortium vitae coniugalis seu

communionern totius vitae perturbare possit.

«Ut perturbatio relevans sit ad normam can. 1098, oportet ut maritale consortium substantialiter

tangat, quoad scilicet eius essentiam, proprietates vel fines» (sent. c. Burke, diei 25 octobris

1990, p. 726, n. 16).

Qui Ponens in sententia diei 26 novembris 1992, animadvertit: «Notetur oportet quod invaliditas

consensus radicatur non in illa negativa qualitate in se considerata, immo neque in eius gravitate,

sed in dolo quo consensus obtentus fuit» (sent. c. Burke, diei 26 novembris 1992, in ibid., 84

[1992], p. 585, n. 17).

Etenim «è proprio un terzo – la pars decipiens – che, mediante l’inganno, sta falsando la

percezione conoscitiva dell’eventuale candidato e sta manipolando, con ciò, il processo

decisionale del contraente al fine di determinare la sua scelta del coniuge. Dietro il dolo c’è,

quindi, una sostituzione del vero protagonista, nonché padrone, della volontarietà del consenso

matrimoniale, in ciò che questo contiene di propria scelta coniugale, la quale spetta al

contraente. Questo indegno ed inaccettabile intervento manipolante da parte di un terzo, è un

attentato diretto al carattere proprio del processo decisorio che spetta natura sua esclusivamente

alla padronanza del contraente stesso» (P.J. Viladrich, Il consenso matrimoniale, trad. it.,

Milano, Giuffrè, 2001, p. 216).

18. Quamvis quisque dolo deceptus erret, error et dolus confundendi non sunt. Dum in errore

etenim subiectum erroneum iudicium circa consensus obiectum facit et ipsum auctor habendum

defectus congruentiae vel consensionis eiusdem ideam inter et realitatem, quae diversa est vel

celata, in dolo est alia vel tertia persona quae ope doli fabricat vel repraesentat falsam realitatem

adeo ut suscitet in subiecto dolo decepto apparenter «veram» perceptionem obiecti, quod in se et

per se habetur falsum.

«Bien que celui qui est trompé fasse erreur, il ne faut pas confondre erreur et dol. Alors que, dans

l’erreur, le sujet fait un jugement faux de l’objet et est 1’auteur du manque d’adéquation entre

son idée et la réalité, dans le dol, par contre, c’est un tiers qui, par le biais d’une tromperie,

élabore une fausse réalité, provoquant ainsi chez le sujet la perception apparemment ‘vraie’ d’un

objet faux en lui-même» (P.J. Viladrich, Ad can. 1098, in Code de droit canonique, Édition

francaise bilingue e annotée, cura E. Caparros, M. Thériault, J. Thorn, Montréal, Wilson &

Lafleur, 1990, p. 635).

«Mentre nel’errore il soggetto si crea un giudizio falso dell’oggetto, ma è lo stesso soggetto

l’autore e il responsabile della mancanza di conformità fra la sua idea e la realtà; nel dolo,

invece, vi è un terzo che crea, attraverso l’inganno, una falsa realtà, al fine di produrre nella pars

decepta la percezione in apparenza vera di un oggetto in se stesso falso» (Viladrich, Il consenso

matrimoniale, p. 214).

Pariter prae oculis habenda distinctio errorem inter et condicionem, attento quod, docente rotali

iurisprudentia «Discrimen tamen apparet vel in origine: nam condicioni dat originem dubium

quod mentem opprimit de exsistentia qualitatis, adversus quod quis in tuto se collocat apposita

condicione (cfr. Acta Sanctae Sedis, vol. XIV, p. 154, III, cit. in una Nullitatis matrimonii coram

Solieri, 19 februarii 1924); e contrario error dans causam gignitur persuasione in qua quis falso

sit aut ponatur de qualitatis exsistentia» (sent. c. Mannucci, diei 13 iulii 1926, in RRT Dec., 18

[1926], p. 230, n. 2; cf. sent. c. Palestro, diei 17 decembris 1986, in ibid., 78 [1986], p. 730, n. 5).

«Chi erra vuole perché non sa, chi pone una condizione sa di non sapere e perciò vuole l’evento

conditionato subordinatamente all’evento condizionante; l’errante è persuaso della esistenza di

un fatto che non esiste, colui il quale condiziona è in dubbio sulla esistenza di un fatto» (M.

Ferraboschi, Il matrimonio sotto condizione, Padova, 1937, p. 43; cf. sent. c. Funghini, diei 24

februarii 1988, in RRT Dec., 80 [1988], p. 145, n. 10; sent. c. Defilippi, diei 28 martii 1995, in

ibid., 87 [1995], p. 224, n. 8).

19. Quoad consensus invaliditatern in hypothesi doli, id dupliciter accidere potest, vel quia in

dolo ab altera parte patrato exstat malitia ideoque «violatio [...] iuris secum fert ut consensus

nupturientis dirigatur in obiectum prorsus dissimile ab eo quod eligere censeat; exinde fit ut

libertas necnon authenticitas consensus eius vitientur» (sent. c. Burke, diei 25 octobris 1990, in

RRT Dec., 82 [1990], p. 724, n. 5) vel quia ex parte deceptoris deficit genuina traditio, cum

pateat in alterutra hypothesi nubentem deceptorem vel ob deceptionem a tertia persona

commissam «aliquam speciem suiipsius donare, quae revera a realitate suae personae

substantialiter differt. Obiectum eius consensus, in casu, vitiatur; ideoque, deficiente illius

consensu, invaliditas consensus alterius quoque partis insequitur. Proinde, iuxta hanc analysim,

ratio invaliditatis inveniri debet in consensu inadaequato vitiatoque illius qui qualitatem dolose

celatam possidet» (ibid., n. 6).

20. At dolus consideretur oportet ex parte decepti quoque vel quia nedum dolus ex parte

deceptoris verum et ex parte decepti consensus nullitatem secumfert.

Sub primo adspectu inspicitur tamquam machinatio, fallacia et calliditas alterius decipiendi

causa; quae deceptio dicitur «sive positiva, faciendo aliquid vel dicendo quo alter in errorem

inducitur, sive negativa simulando aliquid vel reticendo, ut confirmetur et ad finem proprium

utilisetur alterius error fortuitus» (G. Michiels, Principia generalia de personis in Ecclesia,

Parisiis-Tornaci-Romae, 19552, p. 660).

Ex parte autem decepti dolus sumitur tamquam eventus deceptionis, in errore deceptivo seu

doloso subsistens.

«Il punto chiave, nella prospettiva di quanto messo in atto dalla pars decipiens, in ogni caso è che

ci sia una oggettività dell’actio dolosa, qualunque sia la sua modalità, e il nesso di causalità tra

questa azione dolosa e la prestazione del consenso» (Viladrich, Il consenso matrimoniale, p.

222).

21. Consequenter, habetur in patrato dolo apta manipulatio ab altera parte vel ab alia persona

effecta constituendi actum cognitionis omnino falsum in subiecto quod est fitque victima actionis

dolosae.

Sub hoc adspectu seu ex parte decepti, dolus distinguitur in «dolum causam dantem seu

determinantem» et «dolum incidentem»: «prior tunc habetur, quando dolus ita determinat

voluntatem agentis ut sine errore per dolum alterius excitato negotium nullatenus fuisset

positum; alter vero, quando non influit in ipsam determinationem agentis, etsi forsan influit in

secundaria negotii momenta, ita ut negotium etiam sine errore per dolum alterius excitato

positum fuisset, etsi forsan sub aliis conditionibus agenti minus onerosis» (Michiels, Principia

generalia de personis in Ecclesia, pp. 661-662).

Sit substantialis vel accidentalis dolus vel error ex dolo provocatus effectus non mutat.

22. «Nam in dolo accidentali quoque, qui errorem accidentalem provocat, nedum aequitas

canonica, sed et ipsa iustitia exigit ut iniustitia dolo illata resarciatur» (sent. c. Stankiewicz, diei

27 ianuarii 1994, in RRT Dec., 86 [1994], p. 63, n. 13).

Ad mentem canonis 125, §2, «Actus positus [...] ex dolo, valet, nisi aliud iure caveaur; sed potest

per sententiam iudicis rescindi, sive ad instantiam partis laesae eiusve in iure successorum sive

ex officio.»

At in casu matrimonii, cum agatur de actu iuridico qui per sententiam iudicis rescindi nequit vel

attenta eiusdem indissolubilitate, subvenit commemorata norma codicialis in can. 1098 statuta,

quae videtur «iuris ecclesiastici, non vero iuris naturalis, uti quidam auctores et quaedam

decisiones Nostri Fori, perrarae quidem, affirmarunt, quae matrimoniis ante novi Codicis

promulgationem initis non videtur applicari posse.

«Nam influxus doli in matrimonialem consensum directe et immediate ex errore motivato

promanat et tantum indirecte ex actione dolosa» (sent. c. Bruno, diei 19 novembris 1993, in ibid.,

85 [1993], p. 674, n. 3).

Uti denotat praecitata decisio coram Stankiewicz, «Si enim de matrimonio agatur, quod ex iure

divino est indissolubile (cf. cann. 1056; 1141), actio rcscissoria ex dolo admitti nequit, sed ad

praecavendam gravem iniustitiam et libertatis internae gravem quoque laesionem, quae ex

machinatione alterius errorem deceptorium inducente exsurgerent in ordine ad extorquendum

consensum, si nullum daretur remedium contra deceptionem deliberate commissam, lex

ecclesialis in aequitate naturali fundata actionem nullitatis matrimonii ex deceptione dolosa

celebrati his verbis sancit: ‘Qui matrimonium init deceptus dolo, ad obtinendum consensum

patrato, circa aliquam alterius partis qualitatem, quae suapte natura consortium vitae coniugalis

graviter perturbare potest, invalide contrahit (can. 1098)» (sent. c. Stankiewicz, diei 27 ianuarii

1994, p. 63, n. 15).

Quaestio non ponitur in casu, cum agatur de matrimonio celebrato vigente novo Codice Iuris

Canonici, at excludi non potest apodictice dolum descendere ex violatione iuris naturalis,

praesertim quando agitur de errore substantiali.

23. Utcumque, actus cognitionis necessarius ad consentiendum in utroque nubente oportet sit

germanus, quatenus natura sua correspondere debet autodeterminationi quia immo auto-

donationi contrahentium.

Conatus igitur vel adhibita opera ad impediendum vel circumscribendum cognitionis processum

alterius partis, utpote praerequisitum actus voluntatis, quin immo deceptio quae minime componi

potest cum sacramenti dignitate, constituunt gravia doli elementa in seipsis, quae ad mentem

Legislatoris causam coniugii nullitatis evadunt.

Coniugalis donatio suiipsius, quod est obiectum matrimonialis consensus, debet esse authentica.

«Dolus denique scite animadvertit decretum coram Serrano Ruiz ipsummet sacrum matrimonii

foedus illa animorum sinceritate et obiectiva (etsi de personis et intra personas exsistente)

veritate destituit, quae illud substantialiter infectum facerent» (decr. confirm. c. Serrano, diei 28

maii 1982, in RRT Dec., 74 [1982], p. 324, n. 27).

Dolus etenim in re matrimoniali perturbat «substantiam ipsissimam consensus, illum exuans non

modo de vera utriusque coniugis ad invicem traditione et acceptatione per adaequatam alterius

utriusque imaginem intentionalem, sed etiam de veritate quae ipsimet consensui competit ut talis

sit» (decr. confirm. c. Serrano, diei 2 iunii 1989, in Monitor ecclesiasticus, 115 [1990], p. 237, n.

8).

24. Nunc deceptio dolosa oportet respiciat praeprimis qualitatem alterius partis, quam deceptus

ducere constituit, «quae suapte natura consortium vitae coniugalis graviter perturbare potest»

(can. 1098), praetermissis scilicet qualitatibus, quae forsan magni momenti pro parte decepta

sunt quaeque tamen natura sua substantialitcr naturam coniugalis consortii non tangunt vel

afficere non valent.

«Attamen – iure congrueque animadvertit iam citata decisio coram Defilippi – si ad statuendam

aptitudinem qualitatis ad inducendam gravem perturbationem coniugii, praevalens est ‘criterium

obiectivum’, etiam ‘criterium subiectivum’ decepti dolo perpendendum est. Agitur scilicet de

qualitate ‘che non solo oggettivamente – come potrebbe far pensare la addizione, di dubbia

fortuna in subiecta materia, ‘suapte natura’ –, ma anche e specialmente nella stima soggettiva

dell’altra parte deve aver rilevanza, in modo da turbare gravemente la comunione di vita

coniugale’ (I.M. Serrano Ruiz, Ad can. 1098, in Commento al Codice di diritto canonico, Roma,

PUU, 1985, p. 646). Nam ‘qualitati, quam alter nullius vel parvi momenti habet, alter, attentis

peculiare mente, cultura et moribus societatis in qua degit, magnum pondus affere potest.

Congruenter animadvertit Cl.mus Aloisius Chiappetta: “Spetta al giudice la valutazione concreta

della gravità, senza peraltro attenersi esclusivamente ai criteri oggettivi e tenendo conto delle

circostanze di ambiente e di cultura e del sentire comune, che rivestono anch’essi un carattere di

oggettività relativa” (L. Chiappetta, Il matrimonio nella nuova legislazione canonica e

concordataria, Roma, Edizioni Dehoniane, 1990, p. 221, n. 636)’ (sent. c. Bruno, diei 19

novembris 1993, in RRT Dec., 85 [1993], p. 675, n. 4c)» (sent. c. Defilippi, diei 4 decembris

1997, in RRT Dec., 89 [1997], pp. 858-859, n. 6).

Vel aliis verbis, non solum gravitas obiectiva, in casu gravis perturbationis matrimonii,

consideranda venit, quae indubie praevalens est, sed etiam gravitas subiectiva, hoc est

momentum quod pars decepta ob suam constitutionem vel sententiam tribuit determinatae

qualitati, perpendenda est.

B) Error of quality

2 — The Law

25. As to the error of quality of the woman on the part of the man, it is sufficient to recall canon

1097 §2, according to which: “Error concerning a quality of the person does not render a

marriage invalid even if it is the cause for the contract, unless this quality is directly and

principally intended.”

But since the nullity of marriage is accused both on the ground of deceit and of error of quality

of the person directly and principally intended, both grounds of nullity must be proved by

conclusive arguments.

First of all, the existence of error, whether spontaneous or fraudulent, of a quality of the partner

directly and principally required or of a quality which by its very nature is able to gravely disturb

the conjugal partnership, must be proven in the person in error at the time when the consent was

presented.

Hence, one must consider the subjective estimation of the quality on the part of the one in error,

that is to say, what importance he or she might have given to it before the celebration of the

wedding and how he or she had behaved when the defect of the required quality was detected,

and in the case of fraudulent deception one must weigh the fraudulent machination on the part of

the deceiver to induce the other party into error concerning a quality which gravely disturbs

conjugal life.

Thus, the direct proof is had from the confession, either judicial or extra-judicial, of the one in

error or of the one deceived and of the deceiver, confirmed through trustworthy witnesses.

Indirect proof flows from the reaction of the person in error or of the one deceived toward the

partner or the marriage after he or she had discovered the truth about the desired quality or the

defect of the quality, which by its very nature had caused the disturbance in the conjugal

partnership.

B) De errore qualitatis

2 — In iure

25. Quoad errorem qualitatis mulieris ex parte viri sufficiat recolere can. 1097, §2 praescriptum,

penes quod «Error in qualitate personae, etsi det causam contractui, matrimonium irritum non

reddit, nisi haec qualitas directe et principaliter intendatur.»

At, quandoquidem matrimonii nullitas accusatur tum ob dolum tum ob errorem in qualitate

personae directe et principaliter intenta, utrumque nullitatis caput oportet comprobetur

concludentibus argumentis.

Praeprimis comprobari debet in errante tempore praestiti consensus exsistentia erroris sive

spontanei sive dolosi qualitatis compartis directe et principaliter requisitae vel de qualitate quae

natura sua consortium iugale graviter perturbare valet.

Hinc consideranda est subiectiva existimatio qualitatis ex parte errantis, scilicet quanti eam ipse

habuerit ante celebrationem nuptiarum et quomodo ipsemet se gesserit detecto qualitatis

requisitae defectu, et in deceptione dolosa perpendenda est machinatio dolosa ex parte deceptoris

ad inducendam alteram partem in errorem de qualitate graviter perturbante vitam coniugalem.

Ita probatio directa habetur ex confessione sive iudiciali sive extraiudiciali errantis vel decepti et

deceptoris per testes fide dignos confirmata.

Indirecte probatio scatet ex agendi ratione errantis vel decepti erga compartem vel matrimonium

postquam ipsemet veritatem detexerit circa optatam qualitatem vel qualitatis defectum, quae

natura sua conturbationem attulerit in coniugalem consortionem.

C) Condition

2 — The Law

26. As to the ground of condition, it is sufficient to recall the notion of condition found in canon

1102 §2, both insofar as we must use this law now and in this case, according to which, “A

marriage entered into subject to a condition about the past or present is valid or no insofar as that

which is subject to the condition exists or not.”

As everyone knows, condition is an external circumstance attached to an act, on which (by its

very nature) that act depends (cf. P. Gasparri, Tractatus canonicus de matrimonio, vol. I, in

Civitate Vaticana, 19329, p. 56, n. 79).

There should be no surprise if someone were to attach a certain circumstance to his or her

consent in deciding or contracting marriage on which the validity of the matrimonial contract

should depend.

One who really so decides, is said to contract under condition, but the condition must concern the

very matrimonial consent.

“When the subject, in fact, places a condition to marriage which requires fulfillment, in the sense

that he or she makes the marriage dependent on a future and uncertain event (a proper condition)

or on a circumstance that has already occurred or which is yet to be verified (an improper

condition) the validity of marriage itself, he or she wants that marriage only if the said event is

verified or if that circumstance exists” (O. Giacchi, Il consenso nel matrimonio canonico

[Milano: 1968] p. 266).

In this hypothesis, “the prevalence of the existence of a certain circumstance is set over the

matrimonial consent determined by a positive act of the will in such a way that, if the desired

thing is lacking, the very consent to contract marriage is deficient” (sent. c. Di Felice, 19 June

1984: RRT Dec. 76 [1984] p. 348, n. 3).

Thus the contractant “does not choose marriage simply but rather a marriage with a person

endowed with this quality only, or only when this circumstance is verified. Therefore, a

relationship is set between the marriage and the quality or circumstance by which the latter

antecedes the former according to the opinion of the contractant” (sent. c. Boccafola, 25 June

1990: ibid. 82 [1990] p. 553, n. 6).

If the desired quality is present or the circumstance exists or is verified, the consent is valid and

so is the marriage, but the story different in the absence of either one, as in case the consent must

be considered as non-existent and the marriage as invalid.

27. And therefore the validity of the same consent depends rather on the circumstance attached to

the consent than on the awareness of the will which adds the circumstance: and in this case, if

one were to decide that he or she would consider him or her self free from the bond if the desired

circumstance was not verified, then the consent of such a contractant would be invalid and the

marriage null due to exclusion of the indissolubility of the bond, depending whether or not the

circumstance attached to the consent by the same contractant has been verified.

If, however, you restrict the matter to the circumstance as such, once it is accurately

distinguished from a mode and a cause and a prerequisite, and all these have nothing in common

with a proper circumstance; and if the consent in contracting marriage is itself lacking “if the

desired object is lacking” (sent. c. Di Felice, 19 June 1984: ibid. p. 348, n. 3), and if “a marriage

entered upon under a condition about a past or present condition is valid or not, as what lies

underneath the condition, exists or not” (can. 1102 §2), then it is clear that one must attend rather

to the circumstance attached under condition than to the subjective will attaching it, which will

can be passed over, and this is not to be confused with a proper condition. Nor should one

confuse in estimating the strength of the proof, which however pertains both to the importance

and objective seriousness of the circumstance and to the gravity and subjective importance of the

same circumstance, essential or not, according to the contractant in contracting marriage willed

and doubtlessly intended.

28. Although the conditioned consent deviates “from the ideal type of consent which the Church

teaches should be present in giving life to the matrimonial bond” (Giacchi, Il consenso nel

matrimonio canonico, p. 265), it is certainly regarded as “a consent not wanted but tolerated by

the law which per se rejects it insofar as it is different from the normal type or model” (J. M.

Serrano Ruiz, “Il consenso matrimoniale condizionato,” in Aa.Vv., La nuova legislazione

matrimorniale canonica, Studi giuridici 10 [Città del Vaticano: 1986] p. 161), the same is

applied to the canonical community.

And it is stated in very clear words in a sentence coram Grazioli that: “The Church regularly

does not permit attachment of conditions in contracting marriages, but it is equally true that it

does not prohibit it, from proving the existence of some condition, if it had been attached by the

contractant, because when the condition is lacking the matrimonial consent itself is lacking,

therefore the marriage is null” the existence of some condition is proved, if it is attached by the

contractant, with a deficient condition the matrimonial consent itself becomes deficient, therefore

the marriage is null”(sent. c. Grazioli, 26 February 1940: RRT Dec. 32 [1940] p. 167, n. 4).

Thus conditions attached to a consent are tolerated rather than commended.

29. However, setting aside the remaining the questions, it is of great interest to us to keep the law

before our eyes with respect to the said condition which denotes power (conditio potestativa)

whose fulfillment rests in the power, that is, in the faculty of the contractant who is promising.

Rotal jurisprudence constantly, at least in praxis, considered and supposed it to be understood as

a condition de praesenti at least about the sincerity of the one promising at the time of its

placement. As in fact everyone knows that during the regime of the old Code of Canon Law,

according to canon 1092, whenever something was presented or attached in eliciting matrimonial

consent as a condition to be given or omitted, or to be carried out gradually, there used to be a

discussion according to the praxis concerning the condition which denotes power (condicio

potestativa) about the future, which, according to the consolidated and constant jurisprudence “is

resolved in condition de praesenti, whose object is a sincere promise and one to be presented

from the heart of the partner, about something to be done, given, omitted, etc.” (sent. c. Pinna, 27

February 1969: ibid. 61 [1969] p. 220, n. 4; cf. sent. c. De Jorio, 21 February 1979: ibid. 71

[1979] pp. 68-69, n. 4; sent. c. Stankiewicz, 13 December 2001: ibid. 93 [2001] p. 790, n. 14),

lest “the validity of marriage, with the condition pending perpetually, [remains] perpetually

uncertain” (sent. c. Massimi, 23 July 1923: ibid. 15 [1923] p. 176, n. 6).

30. However, with the new Code now in force, the discussion happens to be different concerning

a future condition also because according to canon 1102 §1, “A marriage subject to a condition

about the future cannot be contracted validly.”

“Nevertheless, this prohibition—it is pointedly stated in the above-cited sentence coram

Stankiewicz—not only threatens the conditional clause with nullity, as some demonstrate, this is

the invalidity of every condition de futuro (cf. sent. c. Palestro, 17 December 1986: ibid. 78

[1986] p. 730, n. 5; sent. c. Boccafola, 27 May 1987: ibid. 79 [1987] p. 321, n. 3), but also

renders the very declaration of a conditioned will, that is, a consent conditioned to a future and

uncertain event as well as a marriage contracted under a condition de futuro. In fact both

common doctrine and jurisprudence agree on this view (sent. c. Stankiewicz, 13 December 2001:

ibid. 93 [2001] p. 791, n. 16).

And he adds: “In the present situation, therefore, that is, under the regime of the new Code,

whenever a condition de futuro is added to consent, the marriage thus celebrated is totally

vitiated by law itself, that is, becomes null, independently of the verification of the condition.

For, this nullity is produced by the simple fact of attaching a condition de futuro, as it happened

with the legitimate acts in the Roman juridic experience (D. 50, 17, 77)” (ibid. p. 792, n. 17).

“But because—the above said sentence continues—the prescript of canon 1102 §1 considers the

condition de futuro in a general way, without making in this matter any further distinction, one

can rightly admit that the new formula of the law comprises also the condition de futuro

potestativa, positive or negative, which invalidates marriage with the same effect (cf. J. Prader, Il

matrimonio in Oriente e Occidente [Roma: 1992] p. 187; R. Colantonio, La «condicio de

futuro,» p. 52; sent. c. the undersigned Ponens, 30 January 1992: RRT Dec. 84 [1992] p. 14, n.

6)» (ibid., p. 792, n. 18).

31. As far as the proof is concerned, it is necessary to establish through judicial and extra-judicial

confession of the parties confirmed by trustworthy witnesses that the condition was attached by

the contractant to the matrimonial consent at the time of contracting marriage and it had not been

revoked nor fulfilled, that is, verified.

The placement of a condition is discerned indirectly by two well-known criteria: the first of these

concerns the appraisement of the event or the circumstance, which the contractant had in mind

before the wedding and to whose existence he or she had linked his or her consent and the

validity of marriage; the second, however, concerns the reaction by which he or she conducted

self as soon as he or she learned that the attached condition had not been verified. The more the

contractant valued the future event deduced into a condition, and the quicker, after contracting

marriage when the non-fulfillment of the condition was known, he or she terminated common

life, the easier the way is smoothed over to acknowledge the addition of the condition (cf. sent. c.

Wynen, 2 July 1949: ibid. 41 [1949] p. 339, n. 2; sent. c. De Jorio, 12 March 1969: ibid. 61

[1969] p. 270, n. 5; sent. c. Ferraro, 23 May 1972: ibid. 64 [1972] p. 324, n. 16; sent. c.

Stankiewicz, 30 January 1992: ibid. 84 [1992] p. 18, n. 14; sent. c. Defilippi, 28 March 1995:

ibid. 87 [1995] p. 228, n. 13).

32. Finally, “what might have been the true and positive will (which always holds the first place

in conditions), is not to be derived from the shell of the words used, but rather the substance of

the disposition and mind of the one eliciting it must be considered.

“The judges are to subject to correct appraisement both the words that are expressed by

comparing them among themselves—taking into consideration the credibility of the parties and

of witnesses—and the very facts which pertain to the substance of the matter to be defined, as

these facts become decisively apparent from the statements of trustworthy witnesses [...]” (sent.

c. Bejan, 5 May 1973: ibid. 65 [1973] pp. 396-397, n. 6).

Thus, in proving the attached condition, the criteria to be used do not substantially differ from

the criteria which are generally used, although the condition of the contracting party is

psychologically different, in proving error of quality directly and principally intended or deceit.

In these hypotheses one who marries “does not simply choose marriage but rather a marriage

only with a person endowed with this particular quality, or only when this particular

circumstance is verified. Therefore, a relationship between marriage and a quality or a

circumstance is established by which the latter [quality or circumstance] antecedes the former

[marriage] according to the judgment of the contractant” (sent. c. Boccafola, 25 June 1990: ibid.

82 [1990] p. 553, n. 6).

In brief, if the desired quality is present or the circumstance exists, that is, verified, the consent is

valid, and therefore the marriage also is valid; it is however different if either one is lacking, in

which case the consent is to be considered as being not elicited and the marriage as null.

C) De condicione

2 — In iure

26. Condicionis caput quod attinet sufficiat recolere eiusdem condicionis notionem immo can.

1102, §2, vel quatenus hac lege nunc vel in casu uti debemus, iuxta quam «Matrimonium sub

condicione de praeterito vel de praesenti initum est validum vel non, prout id quod sub

condicione subest, exsistit vel non.»

Condicio, uti omnes norunt, est circumstantia actui adiecta ad extra, ex qua (suapte natura) ipse

actus pendet (cf. P. Gasparri, Tractatus canonicus de matrimonio, vol. I, In Civitate Vaticana,

19329, p. 56, n. 79).

Nihil mirum si quis in statuendis vel ineundis nuptiis suo consensui adiciat aliquam

circumstantiam, ex qua contractus matrimonialis valor pendere debeat.

Qui ita re statuit, sub condicione dicitur contrahere, at oportet condicio spectet ipsummet

matrimonialem consensum.

«Quando il soggetto, infatti, pone una condizione al matrimonio che sta per compiere, nel senso

che fa dipendere da un avvenimento futuro ed incerto (condizione propria) o da una circostanza

già verificatasi o che si sta verificando (condizione impropria) il valore del matrimonio stesso,

egli vuole quel matrimonio soltanto se quell'evento si verificherà o se quella circostanza esiste»

(O. Giacchi, Il consenso nel matrimonio canonico, Milano, 19683, p. 266).

Hac in hypothesi, «constituitur [...] praevalentia exsistentiae alicuius circumstantiae super

matrimoniali consensu positivo voluntatis actu ita determinata, ut, si res optata deficiat, ipse

consensus in matrimonio ineundo deficiat» (sent. c. Di Felice, diei 19 iunii 1984, in RRT Dec.,

76 [1984], p. 348, n. 3).

Ita nubens «non matrimonium sic et simpliciter eligit sed potius matrimonium tantum cum

persona hac qualitate praedita, vel tantum hac circumstantia verificata. Quare, inter matrimonium

et qualitatem circumstantiamve statuitur relatio qua haec illi antecedit secundum existimationem

contrahentis» (sent. c. Boccafola, diei 25 iunii 1990, in ibid., 82 [1990], p. 553, n. 6).

Si qualitas optata exstat vel circumstantia exsistit seu verificatur valet consensus ideoque

matrimonium, diversimode deficiente alterutra pro infecto habendus consensus irritumque

matrimonium.

27. Et propterea potius e circumstantia consensui adposita pendet eiusdem consensus validitas

quam e voluntatis conscientia circumstantiam apponentis: quo in casu, si quis statueret se

liberum a vinculo esse habiturum si circumstantia optata non verificaretur, tunc consensus

nupturientis talis esset irritus et matrimonium nullum ob exclusam indissolubilitatem vinculi,

verificata vel non circumstantia ab eodem nupturiente consensui adposita.

Si, vero, rem restringas circumstantiae qua tali, semel facta accurata distinctione a modo et a

causa et a praerequisito etc., quae omnia nihil commune habent cum condicione propria; et si

ipse consensus in matrimonio ineundo deficit «si res optata deficiat» (sent. c. Di Felice, diei 19

iunii 1984, p. 348, n. 3), et si «matrimonium sub condicione de praeterito vel de praesenti initum

est validum vel non, prout id quod sub condicione subest, exsistit vel non» (can. 1102, §2), tunc

patet ad circumstantiam sub condicione adpositam esse potius attendendum quam ad subiectivam

voluntatem eam apponentis, quae voluntas ultra praetergredi potest nec cum condicione proprie

dicta est confundenda. Nec autem confundenda in aestimanda eius vi probationis, quae vero

pertinet tum ad momentum et serietatem obiectivam circumstantiae tum ad gravitatem et

momentum subiectivum eiusdem circumstantiae, essentialis vel non, iuxta nupturientem in

ineundo matrimonio volitae et indubie intentae.

28. Quamvis consensus condicionatus declinet «da quel tipo ideale del consenso che la Chiesa

insegna debba essere presente nel dare vita al vincolo matrimoniale» (Giacchi, Il consenso nel

matrimonio canonico, p. 265), quippe ita habetur «un consenso non voluto ma tollerato dalla

legge, che per se lo respinge in quanto discostato dal tipo o modello normale» (J. M. Serrano

Ruiz, “Il consenso matrimoniale condizionato,” in Aa.Vv., La nuova legislazione matrimorniale

canonica, Studi giuridici - 10, Città del Vaticano, 1986, p. 161), idem in civitatem canonicam

adscribitur.

Idque perlucidis verbis edicitur in una coram Exc.mo Grazioli: «Ecclesiam regulariter non

permittere condicionum appositionem ineundis coniugiis, sed verum pariter est eam non

prohibere, quominus exsistentia alicuius conditionis probetur, si qua fuerit a nupturiente

apposita, quum deficiente conditione ipse deficiat matrimonialis consensus, ideoque nullum sit

matrimonium» (sent. c. Grazioli, diei 26 februarii 1940, in RRT Dec., 32 [1940], p. 167, n. 4).

Ita condiciones consensui appositae potius tolerantur quam commendantur.

29. Utcumque, vel praetermissis ceteris quaestionibus, quam maxime interest prae oculis legem

habere quoad assertam condicionem potestativam, cuius adimpletio in potestate id est in facultate

nubentis promittentis exstat, quam rotalis iurisprudentia constanter, saltem praxi, habuit

existimavitque tamquam condicionem de praesenti quidem intelligendam de sinceritate vel

minus promittentis tempore eiusdem praestationis. Uti enim neminem latet vetere vigente Codice

Iuris Canonici ex can. 1092 quoties in eliciendo consensu matrimoniali ponebatur seu adiciebatur

in conditionem aliquid a comparte praestandum vel omittendum, vel tractu successivo

perficiendum, sermo ex praxi fieri assolebat de condicione potestativa de fuluro, quae iuxta

receptam vel constantem iurisprudentiam «resolvitur in condicionem de praesenti, cuius

obiectum est promissio sincere et ex animo a comparte praestanda, de aliqua re facienda, danda,

omittenda etc.» (sent. c. Pinna, diei 27 februarii 1969, in ibid., 61 [1969], p. 220, n. 4; cf. sent. c.

De Jorio, diei 21 februarii 1979, in ibid., 71 [1979], pp. 68-69, n. 4; sent. c. Stankiewicz, diei 13

decembris 2001, in ibid., 93 [2001], p. 790, n. l4), ne «matrimonii valor, condicione perpetuo

pendente, perpetuo incertus» maneret (sent. c. Massimi, diei 23 iulii 1923, in ibid., 15 [1923], p.

176, n. 6).

30. Nunc autem novo vigente Codice diversimode sermo fit de condicione de futuro vel quia ad

mentem can. 1102, §1: «Matrimonium sub condicione de futuro valide contrahi nequit.»

«Haec tamen interdictio – acute edicitur in praecitata sententia coram Stankiewicz – non solum

nullitatem comminatur clausulae condicionali, sicut quidam probant, hoc est invaliditatem omnis

condicionis de futuro (cf. sent. c. Palestro, diei 17 decembris 1986, in ibid., 78 [1986], p. 730, n.

5; sent. c. Boccafola, diei 27 maii 1987, in ibid., 79 [1987], p. 321, n. 3), verum etiam nullam

reddit ipsam voluntatis condicionatae declarationem, id est consensum condicionatum eventui

futuro ac incerto necnon matrimonium sub condicione de futuro initum. Ita enim communis

doctrina et iurisprudentia concorditer tenent» (sent. c. Stankiewicz, diei 13 decembris 2001, p.

791, n. 16).

Qui addit: «In praesentiarum, igitur, seu vigente iam novo Codice, quoties condicio de futuro

consensui apponatur, matrimonium ita celebratum ipso iure in totum vitiatur, seu nullum evadit,

independenter a condicionis verificatione. Haec enim nullitas simplici facto adiectae condicionis

de futuro producitur, sicut obvenit penes actus legitimos in experientia iuridica romana (D. 50,

17, 77)» (ibid., p. 792, n. 17).

«Cum vero – pergit praelaudata sententia – praescriptum can. 1102, §1 condicionem de futuro

modo generali volutet, nullam hac in re faciens ulteriorem distinctionem, iure igitur admitti

potest novam legis formulam complecti etiam condicionem de futuro potestativam, positivam vel

negativam, cum eodem effectu matrimonium invalidantem (cf. J. Prader, Il matrimonio in

Oriente e Occidente, Roma, 1992, p. 187; R. Colantonio, La «condicio de futuro,» p. 52; sent. c.

infrascripto Ponente, diei. 30 ianuarii 1992, in RRT Dec., 84 [1992], p. 14, n. 6)” (ibid., p. 792, n.

18).

31. Probationem quod spectat, per confessionem iudicialem ac extraiudicialem partium a testibus

fide dignis confirmatam, oportet constet condicionem a nubente tempore initi matrimonii

consensui adiectam fuisse eandemque nec revocatam nec impletam seu vcrificatam fuisse.

Indirecte condicionis appositio duobus pernotis criteriis dignoscitur, quorum prius ad

aestimationem eventus vel circumstantiae spectat, quam nupturiens ante nuptias habuerit et cuius

exsistentiae consensum suum ac matrimonii valorem alligaverit; alterum vero agendi modum

respicit, quo ipse post nuptias se gesserit, ut primum cognovit condicionem appositam non esse

purificatam. Quo pluris enim nupturiens eventum futurum in condicionem deductam ante nuptias

aestimaverit, et quo celerius, initis nuptiis, cognita condicionis non adimpletione, convictum

coniugalem abruperit, eo facilius sternitur via ad agnoscendam condicionis appositionem (cf.

sent. c. Wynen, diei 2 iulii 1949, in ibid., 41 [1949], p. 339, n. 2; sent. c. De Jorio, diei 12 martii

1969, in ibid., 61 [1969], p. 270, n. 5; sent. c. Ferraro, diei 23 maii 1972, in ibid., 64 [1972], p.

324, n. 16; sent. c. Stankiewicz, diei 30 ianuarii 1992, in ibid., 84 [1992], p. 18, n. 14; sent. c.

Defilippi, diei 28 martii 1995, in ibid., 87 [1995], p. 228, n. 13).

32. Demum, «quaenam fuerit vera et positiva voluntas (quae in conditionibus primum locum

semper obtinet), eruendum non est ex cortice verborum adhibitorum, sed inspicienda potius est

substantia dispositionis et mens disponentis [...].

«Iudicum est rectae aestimationi subicere tum verba prolata ea inter se componendo – ratione

habita partium testiumque credibilitatis – tum ipsa facta quae substantiam rei definiendae

spectant, prout haec facta peremptorie ex dictis testium fide dignorum [...] eluceant» (sent. c.

Bejan, diei 5 maii 1973, in ibid., 65 [1973], pp. 396-397, n. 6).

Ita, in probanda apposita condicione haud substantialiter differunt criteria adhibenda a criteriis

quae generatim adhiberi solent, etsi psychologice diversa sit nubentis condicio, in comprobando

errore qualitatis directe et principaliter intentae vel dolo.

Hisce in hypothesibus nubens «non matrimonium sic et simpliciter eligit sed potius matrimonium

tantum cum persona hac qualitate praedita, vel tantum hac circumstantia verificata. Quare, inter

matrimonium et qualitatem circumstantiamve statuitur relatio qua haec illi antccedit secundum

existimationem contrahentis» (sent. c. Boccafola, diei 25 iunii 1990, in ibid., 82 [1990], p. 553,

n. 6).

Paucis, si qualitas optata exstat vel circumstantia exsistit seu verificatur valet consensus ideoque

matrimonium, diversimode deficiente alterutra pro infecto habendus consensus irritumque

matrimonium.

3 — The Argument

33. It is obvious to anyone, as it was already evident to the sentence of the first grade, that there

existed a very great and serious antagonism between the parties as the judicial controversy

gradually unfolded in pursuing or defending the cause according to the thesis or vindication of

both, that is to say, after the pre-nuptial and post-nuptial circumstances were explained in detail,

if one may use the words of the above said sentence, there was “a bitter and irreducible contrast

between the positions of the parties with respect to the doubt that was formulated,” especially

with regard to deceit perpetrated by the respondent and admitted by the above-said sentence.

Such a dispute or hostility of the man toward the respondent, and of the respondent toward the

man persists even now; and the declarations of the parties concerning the circumstances which

preceded the celebration of marriage and the vindications of both presented in the trial are indeed

diametrically opposed.

The Fathers of the Benevento tribunal therefore rightly observed “that in this process the entire

game is played over the success of a laborious search for a litigant to whom firm credibility can

be attributed,” in order to clarify the truth.

34. On the other hand, the acts really seem to provide the basis for a lack of credibility and

honesty on the part of the woman, and yet she still tries, in the face of documents, to contradict

the petitioner’s thesis, and which the above-said sentence, after carefully examining the acts of

the first instance and having weighed the objective circumstances, determined to have

constituted the foundation of the alleged deceit, certainly convinced that “a true and qualified

deceit with harm to the petitioner” had been perpetrated by the respondent.

“The respondent in fact—the cited sentence concludes—behaved before the wedding in an

alluring and enticing manner, lavish in her irresistible amorous tenderness and making one to

believe to be fully ready to establish in Veneto their conjugal residence, to carry out her plan for

marriage with the petitioner; after the wedding she shed her mask and revealed her true face of a

skillful schemer, satisfied in having achieved her objective, and she tried to make of the marriage

an empty sham reduced to pendular weekly encounters, without any serious future and suitable

to the ideals expressed by the petitioner.”

The recently recalled conclusion, although denied hastily by the appealed Rotal sentence, is

further strengthened and widened in this instance, in view of both the documents already

presented in the second instance, which do not seem to have been properly evaluated by the

above-mentioned Rotal sentence, and the ones most recently obtained, which will be specifically

discussed below.

Because it is not necessary to recall the contradictory narratives of the parties and witnesses, it is

sufficient to note that both parties have confirmed their respective thesis in the latest instruction

of the cause carried out ex officio without the presence of their advocates.

It is of interest to us, in resolving the complex and old question, to determine whether the

petitioner and the respondent could be trusted in narrating the facts or in sustaining their

respective assumption, that is to say, whether the petitioner’s claim has any valid and reasonable

foundation in the acts and facts or the respondent’s opposing thesis is reasonable and consonant

with the truth.

We must immediately note that, while the petitioner proves his accusations against the

respondent with appropriate documents, the woman persists in contradicting the man’s thesis

without being able to shake the strength of the documents by valid or convincing arguments.

35. This indeed is the petitioner’s thesis: from the time he had presented the libellus, because of

the disclosures made by Cecilia, he has maintained that he demanded on the part of his spouse

sincerity and honesty in order to establish in the region of Veneto a healthy and genuine conjugal

partnership: “In our conversations I clearly stressed, without any negative reaction from Cecilia,

the fact that our life together and our residence would be established in Padova where, thanks to

the great affection they had for me, my paternal uncles, who had settled there, called me, after

my father’s death, to stay with them and continue my studies there [...]. I could not, with the

marriage, leave Padova because all my interests were by then converging there, as well as my

prospects for success in my professional work. And Cecilia readily and fully considered this to

the extent that one day, when she was in C. in the notary office of my uncle and mine and

pointing to my desk, said to the one who was working at the time: ‘This will be my work desk.’

My uncle was in fact going to retire and this would have allowed Cecilia the possibility of taking

over his business.”

36. The witnesses, who had seen and heard all this, namely the above-said paternal uncle and Dr.

Paolo, who was then trying out his notary skills at the above mentioned notary office, confirm

the latest circumstance against the woman’s thesis or more correctly against her sincerity in

manifesting her truly admirable intention to comply with the man’s decision, who had no

intention of leaving the Veneto region.

According to the witness Paolo, the petitioner “wanted to establish a family, to have children,

where the role of the woman would be primarily directed toward the communion of life and love

between the two and toward the children, and only secondarily toward the exercise of the

profession of notary in which the future wife could assist her husband,” and he adds: “I was

personally convinced that Cecilia, once married, would have transferred to Veneto and she

seemed to be in complete agreement to do so [...] for example, one time Cecilia seeing the desk

in the office used previously by Diego, said in my presence: ‘tomorrow this will be my work

desk.’”

When explicitly asked, the petitioner’s uncle confirms the circumstance reported by the above-

mentioned witness, and he says: “I confirm the fact because I was present at the conversation.”

37. More recently, that is, in this instance the petitioner confirms: “Between the two of us there

was a formal agreement that Cecilia would seek transfer to Padova where we would establish our

conjugal residence. Cecilia made me believe that this was also her wish and I, on my part, had no

reason to doubt.”

“On the contrary, as I have said several times, Cecilia in fact behaved differently: she did not

bring her wedding dress, did not bring the photograph of our wedding; did not bring any gift she

had received.

“As I have already said previously it was my firm wish that Cecilia follow her husband by

transferring herself to Padova and we had discussed this amply before the marriage and we were

in agreement on this point.”

After the wedding, the woman in fact not only cared little to honor the pact entered into between

the parties, that is, “a mode of living totally provisional hoping that Cecilia would consider the

transfer to Veneto: that is, she would come to Padova on Saturday, staying until Monday of

every weekend,” but she never intended to establish a stable residence with her legitimate

husband in Padova.

“The mode of living—complains the man—while waiting for her transfer, Cecilia did not

conform to our arrangements, and, instead of a regular systematic pendularity, she started

making sporadic appearances in a disorderly manner and at her own selfish convenience,” and he

adds: “The transfer procedure did not happen in a speedy manner as they had agreed prior to the

marriage.”

The respondent says the following against the petitioner: “We had already discussed prior to

marriage, in light of our situation, that we would alternate the location of our encounters. So after

our marriage I demanded of him to keep his word. I never refused to conform to what had been

established. In fact our agreements could never be realized because he did not come after the

marriage.”

But the lack of the woman’s sincerity does not flow forth directly from her failure to establish

conjugal residence in Padova, or because wrangling and altercations between the spouses

emerged quickly, which prevented them from having a stable conjugal relationship, but from the

way of being and acting of the woman, who did not keep her promises and failed to honor the

man’s decision she had orally accepted.

38. The petitioner had confirmed his conclusions briefly in his libellus:

“a) Cecilia came to Padova only a few weekends and not always (that is, not every

weekend), and it was I who had to insist on her coming;

b) Cecilia never regarded Padova as her real home. She never brought along anything to

Padova: neither the wedding dress, nor linen, nor, I repeat, the wedding gifts;

c) Cecilia was never concerned about our home in Padova, the furnishing and our settling

down in it;

d) Cecilia would come to my house in Padova, which was also her house, like one would

go to a hotel, to stay for a few days and then leave. The few times she came she brought with her

a small suitcase with minimum of personal clothes. Her disregard for my well-being is such that

I could not even see the official photographs taken during the wedding ceremony;

e) Cecilia’s mother, aware of the crises that were occurring between us, one day said to

me: ‘Diego, you should be a modern couple. You two are professionals, think of the job’;

f) Cecilia never worried about the way I was living in Padova and how her continuous

and prolonged absences could put me in danger of accepting other women;

g) Cecilia never applied—as I also repeat—for the promised transfer to Veneto. In the

last few months a competition was announced for three offices at Venezia, one at Chioggia, and

one at Padova. The competition was declared void and if Cecilia had participated, she would

have certainly won.”

In a few words, he maintains that his efforts “to make the marriage work according to my pre-

nuptial plans, shared with Cecilia, were unfortunately frustrated by her insincerity and

selfishness.”

39. In view of the grounds of nullity determined in this instance, insofar as we are dealing with

the question whether or not the Rotal sentence should be confirmed, which considered the above-

said grounds after concordance of the doubts and dismissed with a negative decision, the

petitioner’s advocate maintains that “it is sufficient to examine the grounds adduced by the

appealed sentence so that one may see and be certain that the objectivity of matters concerning

condition, error, deceit, very clearly supports the petitioner.”

The respondent’s advocate clearly acknowledges that the three grounds of nullity had received

an affirmative response by the sentence of the first grade, who in his recourse of 15 March 2001

to the Supreme Tribunal of the Apostolic Signatura wrote the following: “On 15 January 1992,

the Tribunal of Benevento pronounced an affirmative sentence in the above cause on the grounds

accused by the petitioner, namely error concerning a quality directly and principally intended in

the woman (can. 1097 §2), deceit of the woman (can. 1098), and condition attached by him (can.

1102).”

After properly determining these grounds, the appealed Rotal sentence responded negatively.

But, if proof with respect to the first ground of nullity accused by the petitioner, that is, with

regard to error of quality of the woman, seems weak or it is very difficult to prove the basis of

deceit, that is, the quality concealed by the woman in view of contracting the marriage, one

cannot deny that there is valid foundation in the acts in support of the condition attached by the

man, and the undersigned Fathers acknowledge that there are valid reasons proving this ground

of nullity.

40. The main question therefore does not concern the lack of honesty of the woman, who did not

reveal the whole truth about her prior pre-nuptial and conjugal condition, but her lack of sincerity

because she herself was not sincere with respect to the man’s demands and requests in promising

her transfer to the city of Padova.

The woman in fact promised without a sincere heart that she would establish stable partnership

with her legitimate husband in Padova, as the sentence of the first grade amply acknowledges,

and displayed a nature contrary to conjugal rights and obligations after contracting the marriage,

that is, a way of life and manners not that commendable.

But it seemed to the Fathers, who decided that the above-said sentence was not to be confirmed

but the cause must be submitted to an ordinary examination of the second grade, that the ground

of deceit would appear not to have been “sufficiently proven from the acts so that the sentence of

Benevento did not decide on several issues or was supported only by futile argumentation” (decr.

14 December 1992: RRT Decr. 10 [1992] p. 208, n. 12).

And the appealed Fathers decided this not only because they thought that the contradiction

between the parties required a more in-depth clarification in an ordinary examination, so that the

credibility of the parties may be clearly established from certain facts, but convinced that the

instruction of the cause carried out in the first instance needed “a more accurate investigation,

especially through acquisition at least of the acts pertaining to the legal separation and to the

cause concerning the rejection of paternity of the son brought forth by the woman” (ibid. p. 209,

n. 12).

41. A supplementary instruction of the cause was carried out in second instance through a new

hearing of the parties and examination of witnesses. Also the acts of civil separation between the

parties and of the denial of paternity were partly acquired. But the Rotal sentence, which seems

to have hastily dismissed negatively all accused grounds of nullity, discharged the threefold

question that was already outlined, which in light of the civil acts stands opposed to the woman,

through a brief discussion or without carefully examining the documents that were presented,

and arrived at these conclusions: a) with regard to the non-consummation of the first marriage

only the fact is of interest: “It is of no importance if married life lasted 15 days or 6 months.

Because we are dealing only with a circumstance and not an essential quality”; b) as to the

transfer to Veneto region promised by the woman: “The method of transferring to a determined

place is not a quality in the strict sense but only a circumstance”; c) as far as the post-nuptial

conception and birth of the son are concerned: “The civil case of rejection of the son is pending

before the civil court and we do not know when it might be resolved” (sent. c. Monier, 22 March

1996: RRT Dec. 88 [1992] pp. 307-308, nn. 21-23).

42. With regard to the first, the appealed sentence maintains that there is no “information on the

difficulties during the preceding marriage and on the impossibility of consummation” (ibid. p.

307, n. 22).

This is indeed surprising!

Really, the respondent at the end of her recent deposition says: “Diego knew about my first

marriage and knew that it was sacramental (ratum) and non-consummated (non consummatum)

and he had the proof of it in our intimate relationships. He was in fact my first and only man.”

But the petitioner acknowledges that he had learned from the respondent “toward the end of two

months of meeting [...] that she was married and that the marriage was dissolved through ratum

et non-consummatum [rescript].”

Moreover, the petitioner raises several objections concerning the above-said pre-nuptial

confession of the woman made to him, as is evident from the depositions of the same, more

recently however from the letter sent on 2 November 1998.

“Here—the petitioner says first—I stand not to question the dispensation from the bond obtained

by the respondent nor to have recourse to its relative presuppositions, even if as regards the

existence of these last I stay with my doubts. I stand here to point out the lie of the respondent

concerning a fundamental fact of my matrimonial consent.”

And the petitioner maintains this because the woman, seeing that she had spoken about obtaining

the dispensation from sacramental and non-consummated marriage, told him only her first

husband’s weird behavior in their conjugal partnership and his untrue impotence: “The entire

story of the respondent was aimed at proving the completely exceptional nature of the events of

which she was a victim, and, as a consequence, her credibility.”

The respondent recalls the circumstance or the mere fact, who, hardly a month had passed after

she had met the man for first time, declared to her husband that she had contracted a marriage

which, as sacramental but non-consummated, was dissolved through a dispensation granted by

the Supreme Pontiff.

According to the petitioner, the things happened differently, that is to say, “The reality was quite

different. It happened that the respondent had lied to me concerning a fact of fundamental

importance. The insincerity of the respondent and her failure to stand for the truth came out.”

According to the respondent’s advocate, who relied solely on the words of the appealed sentence,

“the woman informed the petitioner of this status of her before the wedding, as he and all his

witnesses admit.”

43. As his advocate writes, even setting aside the fact that the petitioner was not that keen on the

woman’s virginity as he was on his wife’s sincerity, it is evident from the documents found in

the acts, which were not available to the appealed sentence, that the woman respondent had

concealed many things from her husband. However, according to the opinion of the Fathers,

those things do not constitute the foundation of deceit for that reason or, when the woman’s

insincerity is admitted and proven with regard to several circumstances pertaining to the

preceding marriage of the same woman, the defect constitutes only something generic and it does

not give rise to any juridic consequence in the absence of proof of a determined quality, which

was concealed for the purpose of obtaining consent.

But, the juridic consequence cannot flow here from the mere communication of the wife about

the dispensation that was obtained on the ground of the alleged impotence of the first husband,

but it would flow from the concealed circumstances, more accurately from the failure to reveal

the main cause of the admitted non-consummation, which, when the civil documents are

carefully considered, does not seem could be ascribed to the true impotence of the woman’s first

husband, but must be attributed to the gynecological condition of the woman herself, that is, to

her alleged vaginism.

In fact, as it is abundantly clear from the above mentioned civil documents, the cause of non-

consummation of the previous marriage cannot be attributed to the impotence of the woman’s

first husband.

“In fact—writes the respondent’s advocate in his recourse to obtain divorce—although both

Cecilia and her husband were anatomically perfect, the marriage was not consummated in spite

of the availability and desire of the couple to consummate it.”

When asked during the divorce proceedings, the woman insists in the recourse, “As to my living

with my husband, it is absolutely impossible, because he himself cannot specify precisely what

sexual deviation is preventing him from consummating the marriage with me.”

The respondent in the divorce case acknowledges the non-consummation of the marriage but

denies his impotence, “As for reasons that I do not know how to explain, that is to say, whether it

concerns a particular structure of her (namely of the respondent’s) sexual organs, the penetration

was only partial contrary to what had happened to me with other women in my pre-marital

relationships.”

The man’s lawyer in the above-mentioned cause of divorce moreover accuses the woman of

subverting the truth in asserting non-consummation “when she spoke of perfection on the

physical level. She could have been in fact affected by vaginism and/or infantile uterus, which is

the reason for the absence of rupture of the hymen, but this does not prevent the intercourse from

taking place.”

44. Finally, the parties in the civil cause consented only to obtain the divorce more easily and

more quickly and therefore admitted that the marriage was not consummated: “With common

agreement both declared that, after mature reflection on the situation that came upon following

the marriage, they had to make sure and confirm the lack of all agreement so much so that, both

being integral and anatomically perfect, the marriage was not consummated due to insuperable

interpersonal tension and consequent loss of all sentimental motive.”

The decree of divorce was then, that is, on 28 February 1985, issued “according to the meaning

of art. 3 N. 2 lett. F. of the law of 1 December 1970,” in fact on the ground of proven non-

consummation of the marriage contracted by Cecilia and her previous husband, but it is not

evident from the acts of the civil court that the cause of the non-consummation is to be attributed

to the man’s impotence, but the contrary is evident, namely the spouses finally admitted non-

consummation, that is, they mutually agreed about this in order to expedite the divorce

proceedings, the above said insuperable interpersonal tension between them having been

invented by the lawyers and accepted by both parties.

In other words, as the petitioner’s advocate in this cause notes, “By that declaration, both parties

(in the divorce case) with mutual agreement excluded impotence of the man as the cause of non-

consummation and they conceded to each other ‘a full declaration of respect without mutually

making any charge or recrimination.’”

The petitioner’s advocate argues to the contrary that there was evidence in the acts of the civil

court concerning the integrity of the woman’s hymen, determined through the expert report,

“carried out on the respondent by the Istituto di Medicina e delle Assicurazioni, Prima Facoltà

del Policlinico Universitario di Napoli, in which it is confirmed that the hymenal membrane of

the petitioner is anatomically integral,” but there is also evidence in the acts on the capacity of

the man respondent in the divorce cause, admitted by the woman “in minutes of 30 January

1985.”

45. Wherefore, the conclusion of the petitioner in this canonical cause must be admitted, who

after examining the above said acts notes: “It is disconcerting, therefore, as opponents on 30

January 1985, from what appears from the acts of the civil court on the divorce case, both

declare with common agreement that, after mature reflection on the situation that came upon

following the marriage, they had to make sure and confirm the lack of all agreement so much so

that, both being integral and anatomically perfect, the marriage was not consummated due to

insuperable interpersonal tension and consequent loss of all sentimental motive.”

Therefore, the petitioner’s advocate does not deviate from the truth when he complains that “the

appealed sentence—which had admitted the respondent’s sincerity so lightly—unfortunately,

either did not examine the acts related to the respondent’s divorce from her previous husband or

did not consider the same as they might have deserved.”

And the same is to be said with respect to the respondent’s advocate, who is erroneously

convinced that “the first husband was impotent with Cecilia, for reasons we do not know, during

the brief (of fifteen or forty days) conjugal common living.”

Also once relative impotence of the first husband of the respondent is admitted, one certainly

cannot speak of true impotence of the same man, who contracted a new marriage after the

divorce from his first or legitimate wife and generated two children with the new wife.”

Anyway, if the insincerity of the woman remains proven, this regards the concomitant

circumstances and not the fact of the dispensation from the sacramental and non-consummated

marriage that was sought and obtained, even if the causes of the alleged non-consummation may

be uncertain or doubtful, and as they must be regarded as uncertain, they are not to be invoked as

the foundation of deceit in this marriage.

46. As to the second, the appealed sentence maintains that “The manner of transfer to a

determined place in a strict sense is not a quality but only a circumstance” (sent. c. Monier, 22

March 1996, p. 307, n. 21).

But the request of the man to constitute conjugal partnership in Padova through the transfer of

the woman to the city demanded by the same man must be considered as a circumstance. And if

this is proven to have been attached to the consent, it assumes the true name and significance of a

condition. But the above-said sentence does not realize that the foundation of the condition that

has not been verified exists not in the mere circumstance or in the prerequisite, but in the lack of

sincerity of the woman, who promised without sincerity, in order to celebrate the wedding, her

transfer to the man’s native place, where the petitioner had decided to establish conjugal

dwelling with his wife.

The insincerity of the woman, who did not fulfill the condition attached by the man, not only

could disturb the establishment and living out the conjugal partnership, but it did not allow even

its commencement or stable establishment.

47. Hence, the petitioner’s advocate rightly notes concerning this matter, that is, objects to the

appealed sentence, that as far as the sincerity of the woman is concerned, which is certainly

necessary in contracting marriage, that is to say, “the sincerity—desired by the other party as

essential in the determined person, and even made precise by that person that it was desired—, is

by its nature a quality, indeed of the quality of the highest moral degree, which for that reason

qualifies the person.”

One’s self-giving indeed means to hand over oneself as a person “with all the natural qualities

which form and inform that person. And among these qualities excel sincerity: trust is united

with sincerity and honesty and religion itself by such an intimate relationship that the very giving

or giving of oneself without obligation of natural sincerity—the obligation owed naturally as a

manifestation of a natural human quality—would be void and would empty out the very person

of his or her natural significance. In other words, when the matter is considered also under the

natural aspect, the person ceases to be as such once his or her constitutive sincerity is taken

away, that is completely removed. It ceases, and in matrimonial matters one it does not become a

spouse, because insincerity either willed for oneself or fabricated with cunning necessarily

becomes a deception of the other, which, therefore amounts to a negation of total self-giving as

essentially required in a conjugal partnership.”

Certainly with Horace stating: “Unless the vessel is sincere, anything you pour into it will turn

sour” (Epist. I, 2, 54).

48. With respect to the third, according to the appealed sentence “it is difficult to understand

where the deceit is,” for these reasons: “The man states that he was deceived by the respondent

because she married in order that the son conceived with another man after the marriage might

be considered as the legitimate son of the petitioner. The civil case of his rejection of the son is

still pending before the civil court and we do not know when it will be resolved. Nor does it

seem possible to prove the adultery of the woman by the birth of the child, because there is no

certain proof that the parties, after the official rupture of their relationship, had no longer met

each other” (sent. c. Monier, 22 March 1996, p. 308, n. 23).

The above-mentioned sentence seems to confuse the times also because the son was conceived

and born after the wedding and the direct object of the deceit is not the woman’s pregnancy or

the birth of the son.

The post-nuptial circumstances, however, are to be considered as clear confirmation of the

persistent insincerity of the woman, who bashfully but shamefully attempted to attribute her

son’s paternity to the petitioner, who was separated from his wife for over nine months.

The sentence of the civil court of 18 April 1995, which was acquired in the canonical cause on

13 November 1995, denies, for valid reasons, particularly due to the strange behavior of the

respondent during the process, the petitioner’s paternity of the son brought forth by the

respondent and sanctions the separation of the parties because of the woman’s fault, that is,

adultery. Leaving aside the fact that this sentence was before the appealed Fathers, the most

recent documents presented by the man in this instance, that is, the decision of the Supreme

Court of Italy, which we shall specifically discuss later, because they definitely deny the

petitioner’s paternity of the boy, brought forth by the woman after the marriage, clearly overturn

the above-mentioned conclusions of the appealed sentence or, if you prefer, confirm the

woman’s adultery, and, in light of the previous acts, perhaps the sentence itself, which was based

on the words of the parish priest of the place of the respondent’s domicile, could not safely

reckon this to be the woman’s fault.

We are certainly dealing with post-nuptial circumstances, but indirectly, as we have pointed out,

the woman’s lack of honesty is more abundantly proven from her post-nuptial behavior, more so

because the respondent, contrary to the public documents, still attempts by whatever means to

attribute the paternity of the little boy to the petitioner.

If the appealed sentence therefore hastily convinced itself that “the issue here does not concern

those things that occurred after the marriage” (ibid.), it is evident that the above mentioned or the

most recent documents favor the petitioner and not the respondent.

49. It is necessary that the narration of facts and circumstances which led the parties to celebrate

the marriage is carefully reviewed again in light of the acts and the proofs. It is clear to anyone

who carefully reads the acts that each party together with their witnesses present totally differing

stories, that is, they support the opposing thesis.

But, when those things reported by both parties are diligently weighed according to sound logic

or are compared with the documents, it will be clear that the petitioner’s thesis, with respect to

the condition attached, is supported by valid and reasonable foundation, while the one invented

by the respondent lacks logical reason, mainly because there is no complete agreement among

her witnesses.

Certainly, as we indicated, the parties disagree between themselves, but such a discord, although

it may make the function of judges very difficult in defining the cause, cannot conceal the truth

also to the extent as the sentence of the first grade rightly observes: “The reasons backing the

version sustained by each one, could have a certain validity in the dialectical order, but certainly

not in the practical order, because it cannot be true at the same time that the respondent had

pledged to transfer herself to Veneto (as the petitioner says) and that on the other hand the

petitioner had intended to transfer himself to Benevento, as the respondent maintains.”

And so, besides the dialectic used by the parties in defending the cause, one must determine

whom do the facts narrated by both parties, according to sound logic and objectivity of the

matters, serve or favor. Moreover, one must indeed see whether the petitioner’s narration or that

of the respondent obtains confirmation, that is, is more concordant.

50. The petitioner insists that during the engagement period he had indicated to his fiancee a

certain plan and that he had expressed himself in this certain sentence, namely of establishing

conjugal life, that is, a true family, in the Veneto region, more precisely in Padova, where the

man had worked as a notary for a long time and had taken trouble to purchase the conjugal home

there: “I explained to Cecilia during the engagement that it was my firm intention to establish

myself definitively in Veneto and I excluded in an absolute manner my transfer to anywhere else.

Cecilia not only took into consideration the plan proposed by me, but also fully accepted it and

she said to me that she would not demand my transfer.”

Moreover, the petitioner reveals his mind and intention in deciding and contracting marriage as

follows: “By marrying Cecilia I intended to realize the following essential needs: to have a

companion of an authentic life, possibly so much in love that she would subordinate her

professional interests to those of the family, who would live an authentic religious life, who

would be ready to transfer definitively to Veneto, where she would not lack space to exercise her

profession. I expressed before marriage in various ways to Cecilia my conditions relative to our

future married life and she made me believe that she was in agreement. Therefore I had no

reason to doubt the sincerity of Cecilia’s intention.”

Because of his advanced age, the petitioner was desirous of establishing a family and made this

pact with the woman. He considered this as essential inasmuch as an annex and positively

attached to the intimate structure of consent so that the original circumstance regarding the

qualities of the respondent would be verified, and if it is not verified, consent itself and the

marriage would be voided.

51. The respondent, along with her witnesses, maintains the contrary, that is, tries to contradict

the petitioner; according to her, her spouse “said that he wanted to transfer to Benevento also

because he felt uneasy due to racism, which he said he was subjected to being a Sicilian. He was

enthusiastic about the idea of transferring himself to Benevento, where I exercised my profession

from 24 October 1987. To be precise, the decree of appointment to Benevento was announced in

preceding July; therefore he knew that my office was in Benevento.”

The woman also denies both the agreement between the spouses to constitute “the conjugal

residence in Padova, where he was exercising his profession of notary” and her promise to seek

transfer to the region of Veneto.

“He said to me—reports the respondent—that he was living upstairs with his mother and uncles,

and they all constituted one nuclear family, but in different homes; at the same time he declared

to me that he did not feel comfortable for reasons already explained and considered it a luck to

transfer himself to Benevento where he would have found a totally different climate, certainly

more suited to his original formation.”

52. When asked about the life-style until she would have obtained the transfer claimed or

demanded by the man, the woman considers such a question absurd “because I—she says—

never thought of transferring myself to Veneto.”

“Furthermore—adds the woman—the agreement that we entered into consisted in this: since

before the marriage it was always he who was to come every weekend, I wanted to alleviate his

fatigue and we thought of alternating the shifts every weekend to stay together; and so some

weeks he would come to me and other weeks I would go to him.

“After the marriage, I kept up this pledge we had agreed upon in the manner and in the spirit

indicated by me.

“But Diego did not keep his part of the pledge to come to Benevento on times agreed upon

previously and for this reason I went more frequently to stay with my husband.”

After hearing these things from the respondent, that is to say, when the conflicting agreement

decided between the spouses is admitted or when the opposite intention or the impossibility on

the part of the woman to move to the city of Padova is taken into consideration, the said visits by

the woman to the place where the man was living without he himself satisfying the different

agreement, that is, the one promised by himself, prove the contrary. Moreover, if such visits on

the woman’s part were indeed more frequent, one cannot understand why, in less than three

months had passed after the marriage, there arose serious disputes between the spouses.

Certainly, the respondent, who presented the attestation of transfer for exercising the office of

notary from the city of Napoli to the city of Benevento, maintains that according to the law it is

impossible to obtain a new transfer before three years of stay in the latest assignment.

However, the law prescribed this taxatively, but only after the first assignment and it is to be

observed generally for successive instances, but the woman knows very well that the law does

not demand strict observance in case of marriage or when in determined places there are no

petitions from candidates, after the celebration of the marriage, as it happened in the region of

Veneto.

And by using the norms of law the petitioner explains in his brief of 31 July 1994: “As I

explained in my interrogatory both by producing a copy of the law and the certificate of the

Ministero di Grazia e Giustizia, in virtue of the art. 2, paragraph 3, Law 30.4.1976, n. 197 [...] it

is possible to take part in a competition for transfer to another office even immediately after

having obtained a previous transfer.”

53. The witnesses of both parties respectively confirm on the one hand the petitioner’s thesis and

on the other agree with that of the respondent. But lest the statements of the witnesses are

overlooked, it is necessary to note immediately that the petitioner had presented objective and

valid reasons in support of his assumption, particularly with respect to the condition he had

attached, namely, if we may use the words of the sentence of the first grade, “having adopted a

totally valid motive in support of his conditions required relative to the future married life,” the

respondent persisted in holding on to her assumption, which can be reconciled or brought

together with difficulty with the condition both professional and existential or psychological of

the petitioner himself.

Thus, while the reasons adduced by the petitioner appear valid and logical to anyone, the

contrary explanations of the woman seem like counsels or fabrications cunningly invented and in

themselves contradictory, namely they appear to be contrary to sound logic, nor do they have any

confirmation in the acts.

54. “I first have to state that—the petitioner confesses—even though I was the head of the notary

office in P., I preferred to transfer to C., where there was an empty office and where my uncle

was practicing the profession, who was also a notary, and with whom I am professionally

associated; for this reason I even made arrangements for all members of my family to move to

Veneto, by purchasing for them a very nice apartment.”

The petitioner had not left Sicily alone but he lived with his family, above all with his mother, in

Veneto for a long time and he had taken the trouble to purchase the conjugal home distinct from

the one for the family members.

The contrary explanation given by the respondent therefore seems to smack of a tale since, as the

sentence of the first grade notes, she tries “to evoke the phantasms of racism,” which might have

affected the Sicilian man who was then living with unease in the region of Veneto.

When questioned most recently, the petitioner denies in clear words the subsidiary condition of

the man for his possible transfer to the city of Benevento alleged by the respondent: “It is

absolutely false that I had planned my transfer to Benevento. I say that after lyceum in Sicily, I

completed all my university studies in Veneto, obtaining a doctorate in jurisprudence in Ferrara.

I completed my internship as a notary in Veneto in my uncle’s office [...]. When an office of

notary became open in C., I participated in the related competition, and I won it. It was after this

that I transferred to Veneto where I still live. After I settled down definitively in Veneto, I

transferred my entire family.”

Also the petitioner’s advocate observes rightly to the point: “Indeed, how could the man think—

who had lived and was living his whole life with his mother in Padova, who, after completing his

university studies in the region of Veneto, was for years already practicing his function of public

notary with his uncle, who was close to retirement age. And, in one word, he had all his both

affective and social and professional interests in the city of Veneto. With what reason then

should we be led to believe that the man wanted to transfer and should have transferred himself

to the city of Benevento? Such a tale craftily invented is so embellished that it does not seem to

correspond even to the beginnings of sound logic and psychology. But, if the woman had

recourse to such a huge story in order to build her defense, it is the most evident sign that it

lacked arguments opposed to the truth. Anyway, the story contrived by her or by her advocate of

the first instance crumbled miserably because it is based on no valid and efficacious foundation.”

55. It appears from her complaints, that is, from the circumstance which she came to know after

the celebration of the marriage, that the woman’s thesis must be considered contradictory seeing

that the petitioner’s mother, who lived in A. with her son who was already married, left for

Sicily: “When his mother left the Napoli station, my husband began to cry his eyes out and told

me that it was because of marriage that he had to stay with me and was not able to follow his

mother. Practically he made me believe that he preferred his mother to me. This episode

confirms the psychological dependence of my husband in relationship to his mother and his

family members.”

The petitioner’s advocate notes again, and in fact rightly, “It is she who wants to accuse this

marriage of nullity on the ground of incapacity of the man inasmuch as he is dependent on his

mother! And the man himself absolutely denies this [...]. But, if logical reason has some sense,

one who affirms such a form of incapacity cannot fabricate with impunity a story about the

transfer of the same man from the region of Veneto into the province of Benevento, because, if

he was inseparable from his mother, he himself could not even think of his transfer to any other

place!”

56. That the petitioner had imposed on the fiancee the necessity of establishing the conjugal

residence in the city of Veneto is evident also from the recourse of the same petitioner, dated 11

February 1989, presented to the civil tribunal of Benevento both to obtain the separation because

of the fault of the woman and for denying the paternity of the boy that was born [but] “conceived

with a person different from him,” after the de facto separation of the spouses or if you prefer, to

obtain the separation due to the woman’s fault after the wife had given birth to the son from

another man.

As is evident from the sentence of 18 April 1995 by the above-said tribunal, the petitioner

complained through the above recourse “that immediately after the marriage, and contrary to the

agreements previously entered into, Dr. Cecilia, who practiced the same profession of Notary

which the petitioner was practicing in C., refused to contribute to the preparation of the conjugal

home which, with common accord, was fixed in Padova, and while she was awaiting her transfer

from A., to an office close to Padova; that such a solution would have allowed both spouses to

continue to practice their profession, the husband retaining the office in C.; that, not only Dr.

Cecilia refused to bring along to Padova the gifts received by both spouses on the occasion of

their wedding, leaving them instead at her paternal home in A., but she had not arranged even to

bring into the conjugal home her personal effects, so much so that for her brief stays in Padova,

which occurred only a few times and on some weekends, she brought with her only a small

suitcase containing some minimum of necessary personal clothing, as if she would be staying in

some hotel, as a proof of her refusal to establish a true conjugal relationship, Dr. Cecilia had

never requested, as she had promised to do even before the marriage, the transfer to Veneto,

abstaining even from participating in the competitions announced for three offices in Venezia,

one in Chioggia and one even in Padova; all these competitions were declared void and that she

would have certainly won only if she had presented the prescribed application.”

From what has been reported or from what would be said below, everyone knows that there is

agreement between the petitioner’s statements made in this process and the documents presented

in the civil court proceedings.

57. In the session held on 25 November 1990, “a meeting for the process of rejecting the

paternity which was related to the cause of separation of the spouses” was set up, and an expert

report was ordered in order “to have the genetic and hematological examinations done in order to

ascertain the irreconcilable circumstances with the paternity of the petitioner with respect to the

minor R.” The sentence of 18 April 1995, which in fact decided on the separation between the

parties because of the woman’s fault, namely because the man denied his paternity, which will

be discussed below, also noted that “Dr. Cecilia refused, without a just reason, to establish with

her husband a stable conjugal home.”

The woman, however, did not raise any objection during the above-said proceedings to the man’s

complaints concerning the failure on the woman’s part to transfer herself to the city of Veneto or

her refusal to establish conjugal partnership with the man.

We must keep before our eyes and must note that the procedural chronology in the first grade

from which it is proved that the respondent had told lies in this instance in order to justify her

absence in having the expert report completed in the civil court, and this was the reason for her

being barred from presenting proofs.

But this circumstance must be interpreted in accord with the acts and the proofs in the civil court

and not however according to the unjust conditions explained by the respondent’s advocate.

One can read in the above said document: “The testimonial proof requested by the parties was

admitted and completed [...]. C.T.U. was ready to have the genetic and hematological tests done

in order to ascertain the circumstances irreconcilable with the paternity of the petitioner with

respect to the minor R. The formal interrogatory of the respondent also was ready.”

Then the civil Magistrate vainly sang to the deaf ears of the respondent!

58. The above-said sentence of the civil court of 18 April 1995 rejected the petitioner’s paternity

of the son given birth by the respondent and, for this reason, besides other reasons, attributed to

the woman the blame for the decision on and declaration of the separation of the spouses. And

this sentence was confirmed by the sentence of the Civil Appeal Court of Napoli, dated 31 May

1996, which declared that “the challenge against the ground of the sentence [of the first grade]

relative to the denial of paternity is unsustainable and it rejected the rest,” certainly with respect

to the instance of the woman “that the separation was pronounced making the husband

responsible for the potential consequences.”

Certainly, the Tribunal of Appeal did not admit the appeal against the man’s paternity that was

rejected, since “apart from the form used (recourse instead of citation),” the act of appeal was

placed or notified outside the legal time-limits.

But, in the appeal grade, as one reads in the sentence of the Supreme Court of Italy, the blame for

the separation was attributed to the woman not only because of the rejection of paternity that had

already been established, “from which it inferred that the pregnancy was the result of a behavior

opposed to the duties flowing from the quality of a spouse,” but because there was proof “also

from other negative behaviors, and to these was joined the proof on the grounds of failure on the

woman’s part to present herself in order to return the formal interrogatory submitted to her and

on the basis of the outcome of the testimonial proof.”

The Sentence of the Supreme Court, which cannot consider the merit of the cause, observes

however that the Tribunal of Appeal, that is, of Napoli, had adequately fortified its sentence with

reasons for its decision to attribute the blame to the woman, “basing it on the rejection of

paternity of the son born when the marriage was firm, which caused a behavior unbecoming of a

spouse, as well as on the probatory results, such as the lack of response to the formal

interrogatory on the part of the same person.”

59. When the recourse of the woman was definitively dismissed by the decision of the Supreme

Court of Italy issued on 31 March 1998, the respondent’s advocate insisted, by his petition of 14

May 1999, that an expert be designated ex officio who, “after submitting the respondent and the

minor (in fact, even the petitioner, should he request this) ‘to the assessments which would

vouch for the actual state of knowledge the maximum degree of a priori certainty of the

exclusion of paternity—including however the HLA system and eventually, should it become

necessary, the study of hypervariable minisatellites of DNA,’” should respond to this question:

“Whether or not the minor [son] presents the genetic hematic characteristics incompatible with

those of Dr. Diego.”

And the respondent’s advocate asked this not because he was certain that a new expert report

could overturn the conclusions of the civil court decisions, but because he thought that “as a

foundation of the canonical decision, we cannot render a decision based solely on the forfeiture

of the right to propose the proofs; a decision should be based on objective truth.”

Really the esteemed advocate does not imply that in canon law or in the administration of

canonical justice certitude can exist without truth, because he himself and others certainly know

that pronouncing a judgment or the administration of justice depends only on truth according to

moral certitude, which according to the teaching of the Magisterium of the Church is “that

certain knowledge which ‘is based on the constancy of the laws and usage that govern human

life’ (Pio XII, Allocution to the Roman Rota, 1 October 1942: AAS 34 [1942] 339, n. 1). This

moral certainty is a guarantee for the judge that he has found the truth about the fact to be

judged, that is, the truth which is the foundation, mother and law of justice, and so makes him

sure that he is—from this aspect—able to pronounce a just judgment. This is precisely the reason

why the law demands this certainty of the judge, to enable him to proclaim a just judgment”

(John Paul II, Allocution to the Roman Rota, 4 February 1980: AAS 72 [1980] pp. 175-176, n. 6).

Therefore the respondent’s advocate incorrectly states that in our law “the principle of truth

prevails over the principle of certitude,” and also invokes the tale of the respondent being

prevented from introducing proofs in the civil court for acknowledging the petitioner’s paternity

of the boy conceived and given birth by the respondent herself.

That the alleged prevention from introducing proofs by the respondent or by the advocate in the

civil process smacks of a tale is already sufficiently evident from everything that has been said

and it will stand out more completely from what will be said below.

60. The decree of the Turnus of 14 October 1999 did not admit the instance of the respondent’s

advocate, as the Fathers stated that “proof of paternity is not the direct object of the issue to be

resolved in this instance nor does it directly correspond to the question concerning the alleged

conditioned matrimonial consent or the one erroneously or fraudulently presented, or because the

circumstance of legitimacy or illegitimacy of the child generated over which the expert proof is

requested existed during the post-nuptial period” (decr. c. the undersigned Ponens, 14 October

1999, Cerretana-Thelesina-Sanctae Agathae Gothorum, B. 87/99, n. 18).

But the decree of the Turnus, which notes that it is not the task of the Undersigned [Auditors] “to

directly investigate the disputed paternity which has already been dismissed by two conforming

decisions and therefore it directly enters into this question” (ibid., n. 14), could not but point out

the inconsistency on the part of the woman herself and her advocate either because, in light of

the decisions already pronounced by the civil courts, it did not seem “the denial of paternity on

the petitioner’s part was established only afterwards, or because the woman was prevented from

presenting proofs” (ibid.).

61. In fact, the above-mentioned technical tests requested in this instance by the respondent’s

advocate on the minor son, the petitioner and the respondent were already fixed for 21 November

1990 by the civil court judge, and these were performed on the petitioner but were

contumaciously refused by the respondent.

Actually, besides the chronology of the procedural course of the first grade in the civil trial, from

which it is clearly evident that proof through witnesses of both parties had preceded in the first

instance, as one reads through the first sentence, the respondent not only refused “to respond to

the interrogatory submitted to her concerning the facts of the cause,” but “first she was opposed

to the admission of hematological consultation, then she caused the delay in the starting of it and

finally she refused to submit herself and her son to the testing, as it was emphasized by the

consultants in their negative report.

“And still she failed to cite the witnesses who were indicated, thus allowing herself to be

declared to have forfeited the proof.”

The respondent totally disregarded the second recourse of the man for the separation of the

spouses, as the first judgment of the civil court notes: “The said recourse was notified to Dr.

Cecilia on 21 March 1989 and, despite the seriousness of the statements contained in it, Dr.

Cecilia persisted in her silence, by not recognizing the need to inform her husband in writing of

the birth that had taken place.”

The expert designated by the civil court in fact reports that on the day fixed for conducting the

tests only the man appeared, but “he did not provide any justification regarding the absence of

Dr. Cecilia and of her son.”

The second session was set for 8 February 1991 for the woman and the boy. But, “Even on that

date no one showed up. Subsequently, however, a telegram dated 7 February 1991 arrived and

with the signature of Dr. Cecilia, which announced her absence at the meeting of February 8

because she would be away from her office due to previous commitments.” “Having taken note

of the justification sent by Dr. Cecilia, we decided to reschedule both her and her minor son for 4

March 1991. But, once again no one showed up on that date, nor did they send any justification.”

62. Therefore, the respondent’s advocate inappropriately invokes or takes refuge in the so-called

forfeiture of the right to present proofs in support of the woman’s thesis contrary to the denial of

the paternity of the boy in the civil court. In fact, when the defect of paternity of the petitioner

was proven or when one considers carefully the behavior of the woman, one cannot fail to see

the lack of credibility of the woman herself.

And the Procurator of the Republic also noted this in the first instance, who concluded: “At the

conclusion of the judicial inquiry there emerged presumptive elements that were univocal, after

considering also the behavior of the respondent during the procedure,” and he added:

“Particularly the repeated and unmotivated refusal to submit herself to immuno-hematological

examinations, the completed testimonial proofs, the refusal to return the formal interrogatory, let

alone the name [namely the family name of the woman] given to the minor by the woman, at the

time of his birth, constitute a complex of precise and concordant indications to justify the

admission of the recourse for denying the paternity.”

The woman appealed against the sentence and asked for “the dismissal of the application for

rejection [of paternity] and that the separation be declared with debit to the husband with the

consequent precautions,” but the Curator of the boy “remained contumacious” in the grade of

appeal.

63. It is, therefore, very difficult, one may even say rationally impossible, to attribute any trust to

the woman respondent, who even today pointlessly maintains that she had not criticized the

sentence of the appeal tribunal, “because I was not informed by my lawyer of this possibility,”

and she denies, contrary to the objective circumstances and the truth of facts, her refusal to

provide technical proofs determined by the civil judge: “I never refused to carry out the

hematological test by means of DNA whether on me or on my son, because according to my

lawyers’ counsel, who relied on a decision of the Court of Cassation of the time, it was necessary

first to hear the witnesses and then carry out the technical proofs. Therefore when I was

summoned by the doctors for the hematological tests I did not appear. Because of this I am a

victim of a procedural error committed by my legal advisors, as I was subsequently declared to

have forfeited the proof whether hematological or testimonial. Nor was I granted a deferment to

present proofs requested by lawyer C., who succeeded advocate B., who passed away suddenly.”

Certainly, there is evidence of the absence of the woman and the son for the determined blood

tests, but nowhere is there evidence in the acts concerning the reasons now indicated by the

respondent. In fact, the respondent decided on her own not to appear either before the judge,

because she had refused “to respond to the interrogatory submitted to her concerning the facts of

the cause,” namely concerning the trial which was dealing conjunctively with the separation of

spouses and the denial of the son’s paternity, or before the expert, as it is noted twice in the

sentence of the civil court of the first grade.

Nor is it evident from the acts that the expert examination was set aside because of the requested

testimonial proof.

Trust is the foundation of justice, that is to say, constancy and truth of statements and

agreements” (Cicero, De off., I, 7, 23). The respondent promised and did nothing and so she lost

the trust: “One who loses trust, can lose nothing further. Trust, as the soul, whence it leaves,

thither it never returns” (P. Syrus, 160, p. 271).

64. Nor it is evident from the acts of the civil court that new lawyers had insisted on introducing

or presenting new proofs.

The contrary emerges from the acts, that is to say, there was no proof through witnesses on the

respondent’s part not because they were not heard before the technical examinations but because

the respondent herself “had failed to cite the witnesses that were indicated” through her lawyers.

Therefore if ever the right of the woman to adduce proofs was affected, it depended solely on her

deliberate conduct.

Anyway it is evident from the first sentence that the examination of witnesses was set up first

and then the technical proof and during the first phase the witnesses of both parties were heard.

The above-mentioned sentence in fact observes “that, while the testimonial proof formulated by

the petitioner was said to be precise and to the point concerning the circumstance that Dr. Diego

had not seen or met the woman after 3 April 1988 [...], the witnesses of the respondent [...] have

not been able to state that they had ascertained by sight the eventual meetings between Diego and

Cecilia after 3 April 1988, but they had learned from Cecilia herself that there might have been

encounters between her and her husband after that date.”

The declaration made by the appealed Fathers, that is, “there is no certain proof that the parties,

after the official rupture of their relationship, had no longer met each other” (sent. c. Monier, 22

March 1996, p. 308, n. 23), appears to merit consideration, because there should be evidence to

the contrary, that is, the positive fact that the parties indeed might have met should be evident.

And this is completely lacking, nor has the respondent ever offered any proof except, and in fact

in the civil court before the technical examination, the witnesses instructed by her and not from

sight.

After the respondent refused “to return the formal interrogatory submitted to her by the

petitioner,” or in view of the discord in the testimonial arguments that had been gathered, the

judge therefore rightly decided to have a technical examination performed.

For the rest, it is sufficient to read the sentence of the Supreme Court, which charged the woman

of “the lack of response to the formal interrogation.”

65. The tenacious advocate of the respondent more recently, that is, in his brief on the legal and

argument aspects, as we indicated in the description of the facts, maintains that the above-said

decree of the Turnus “constitutes a very grave violation of the right of defence,” therefore, — “as

it is re-affirmed with a separate instance”? —asks the same Turnus, that is, Our Turnus, that the

same decree be revoked, “by admitting the requested expert report.”

In other words, in view of art. 77 of NRRT, the esteemed advocate would agree with the

hypothesis foreseen by the said article, according to which, after the resolution of the question

through the decision of the Turnus “there is no appeal,” the same “incidental question [...] can be

proposed again before the same Turnus together with the principal cause.”

In fact, Prof. Sebastianus Villeggiante writes: “Art. 77 determines that ‘there is no appeal against

the decision of the Turnus’; before stating this precept, the norm premises: ‘Without prejudice to

the prescripts of canons 1629, 4° et 1618,’ and completes with a caution that the same incidental

question can be proposed again before the same Turnus together ‘with the principal cause.’ Now,

canon 1629, 4° sanctions that there is no appeal from a decree of a judge or from an interlocutory

sentence’ which does not have the force of a definitive sentence,’ and canon 1618 clearly

determines when an interlocutory sentence or a decree has the force of definitive sentence: ‘if it

prevents a trial or puts an end to a trial or some grade of a trial with respect to at least some party

in the case.’ If the decree of the Turnus or the interlocutory sentence has the force of a definitive

sentence in the sense established by canon 1618 and constitutes grave harm, it does not seem that

they can sustain any doubt with respect to the possibility of an appeal against them: it is the

definitive nature of the decision above all that counts, and the fact that the same incidental

question, already decided upon, can be re-proposed before the Turnus together with the decision

on the principal cause, is further confirmation of the relevance of the above-said definitive

nature, given the fact that only one problem prevents the definitive decision from being proposed

again” (S. Villeggiante, “Le questioni incidentali presso il Tribunale della Rota Romana,” in Le

«Normae» del Tribunale della Rota Romana, a cura di P.A. Bonnet et C. Gullo, Studi giuridici

42 [Città del Vaticano: Libreria editrice Vaticana, 1997] pp. 245-246).

66. A. Stankiewicz holds the same opinion. According to him, in light of art. 77 of NRRT, “The

incidental question can be proposed again before the same Turnus together with the principal

cause. As a consequence, therefore, after discussing the incidental question again together with

the merit of the principal cause, it is possible to propose the challenge in the presence of the new

decision made by the same Turnus together with the appeal against the definitive sentence,” and

he observes: “Nevertheless, the following important clause has been added to the proposed

challenge to the incidental decisions of the Turnus, at the beginning of the text of art. 77:

“Without prejudice to the prescripts of cann. 1629, 4° and 1618,” and because of this, the non-

possibility of a challenge reaffirmed there should concern only those decisions which do not

express the efficacy of the definitive sentence” (A. Stankiewicz, “Le impugnazioni delle

decisioni rotali,” in Le «Normae» del Tribunale della Rota Romana, pp. 265-266).

And, in light of Rotal norms or Rotal praxis, he reports, for example, cases decided perhaps by

decrees of the Turni to which one could attribute “the force of a definitive sentence” (ibid., p.

266) and uses analogy for interposing recourses, because “through the proposition of a recourse

against the decree of the Turnus and through its prosecution before the superior Turnus, having

taken into consideration the proper meaning of the term ‘decision’ in art. 102, or of the

devolutive effect of such a recourse, similar to appeal (cr. art. 98 §2), the terms can be analogous

as for the appeal itself (cf. art. 104)” (ibid., p. 267).

No time period is established for the proposal of the same incidental question already decided

before the Turnus together with the principal cause.

But in such a case, that is, in a case an incidental question is resolved, one is dealing with a

question to be resolved as promptly as possible (expeditissime) (can. 1527 §2), which does not

admit an appeal (can. 1629, n. 5), as the respondent’s advocate himself acknowledges.

The respondent’s advocate therefore writes incorrectly, that is, seems to complain, that the

decree of the Turnus of 14 October 1999 was notified to him on 13 January 2000 and that by his

decree of 20 January 2000, the Ponens had set the time period for the advocates to present their

defences within the month of March of the same year.

As to the revocation of the decrees of the Turnus, the above cited A. Stankiewicz writes: “The

preceding Norms of 1934 permitted their revocation (as well as of an interlocutory sentence)”

either of themselves, after hearing the parties, or at the instance of one party, after hearing the

other party” (art. 114 §2). One can argue that such a faculty of the Turnus, which is consonant

with the common law (can. 1591), founded also in the ‘stylus’ of the Rota, remains in force also

in virtue of art. 120 of the new Norms. In fact the prohibition to revoke and to correct explicitly

concerns only the definitive sentence, except obviously the correction of material error (art. 98

§1)” (ibid., p. 267).

After reconsidering all these matters, the undersigned Fathers maintain that both the feigned re-

proposition of the incidental question, which has already been decided, and the expected

revocation of the decree of the Turnus dated 14 October 1999, which on the other hand the

respondent’s advocate has until now not proposed through a formal instance to Our Turnus,

against the Rotal decree the respondent’s advocate in fact petitioned and obtained only an

enlargement of the Turnus by the Dean.

67. Anyway, the respondent’s advocate, relying on the conclusion of the above-said Rotal decree

by which “the Fathers maintain that the proof of paternity is not the direct object of the question

to be resolved in this instance nor is it directly consonant with the question about the alleged

conditioned or erroneous or deceitfully presented consent” (decr. c. the undersigned Ponens, 14

October 1999, n. 18), notes in the statement of facts of his brief that he did not want to speak

about or discuss this question, in light of the fact that “the Turnus has clearly said that the denial

of paternity does not directly concern our cause.”

But, the Turnus first arrived at this decision, that is, determined that further proof of the disputed

paternity is not the object of the question of nullity of marriage, because the controversy of the

man’s paternity or its denial, and both these happened after the wedding, have been resolved and

determined through public documents in favor of the petitioner, then noted that the same

question of clarifying the paternity “was not directly consonant with the question of the alleged

conditioned or erroneous or deceitfully presented consent,” insofar as the woman’s pregnancy

and the birth of the son, which followed the wedding and which was attributed by the respondent

to the petitioner, who was totally unaware of it, as the post-nuptial circumstances, according to

the threefold hypothesis of nullity, could hardly have had any direct force on or importance to

the conjugal consent to be presented or the one already presented.

We said directly, but no one prohibits from undertaking now a discussion on the above-said

circumstances, that is, on the woman’s pregnancy and the birth of the son and on those things

which occurred thereafter, especially in the civil court, in order to indirectly prove the

constitutional lack of probity of the respondent, evidently both because of her reaction toward

the petitioner seeing that the pregnancy had occurred and because of her behavior during the

process in the cause of separation and of denial of paternity instituted by the man.

68. It is now necessary for us to discuss the first question, that is, the post-nuptial behavior of the

woman toward the petitioner when she, after the conception from someone else and the birth of

her son, cunningly attributed to the petitioner the child’s paternity, but in a surprising manner

decided on her own to give the child that was born the surname whether of the man or her own.

The petitioner blames to this day his wife because the child that was born constituted the final

attack on the woman’s insincerity: “The attribution to me the paternity of the child whom Cecilia

had given birth is the greatest deceit and contempt of Cecilia in my confrontations.”

Everyone can see that such a circumstance as such and the post-nuptial [circumstance] militate

against the respondent, favoring however the petitioner, who complains thus: “Cecilia gave birth

to the child on 11 March 1989. Evidently she had conceived him with a person other than

myself, because I had the last sexual relationship with her on 13 March 1988, while 2 April 1988

was the last time that I saw her but only to definitively terminate our union.”

The advocate of the respondent also acknowledges that the separation between the spouses had

occurred on 2 April 1988, when, relying on the petitioner’s words, he speaks of the impossibility

of participating in the competition for notary on the part of the woman: “In fact the decree which

put up such offices for competition bears the date 31 January 1988 and was published on 9 April

following [i.e., according to the man, after they had separated, which happened on 2 April!].”

Hence, no one can contest the logical deduction of the petitioner’s advocate, who notes thus:

“Furthermore: the woman gave birth to her son on 13 March 1989, and it is evident from the

woman’s own declaration that she had her last menstruation on 12 June 1988: indeed the easy

way may be to have a DNA test or some other similar tests, because in the natural order it is

evident that pregnancy can last only through nine months, with an accurate calculation, the

adversary can provide an answer about himself. This would in fact be consonant with the

declaration made by the respondent as to when the pregnancy began from 11-12 June 1988! The

spouses were in fact already definitively separated.”

69. Thus, after carefully considering the matter, the petitioner asks and draws this conclusion:

“If, hardly three months after we had been separated, she had the courage to go and conceive a

child, it seems to me that she already had relationship with another man before my marriage,

because one cannot conceive a child with the first man she comes upon by chance.”

As we indicated, the public documents, which “are to be trusted concerning everything which

they directly and principally affirm (can. 1541),” support the petitioner and not the respondent.

Besides what we have said above, the appealed sentence is to be subjected again to a critical

evaluation: “because there is no certain proof that the parties, after the official rupture of their

relationship, had no longer met each other” (sent. c. Monier, 22 March 1996: RRT Dec. 88

[1996] p. 308, n. 23).

We do not say it is false, as the petitioner’s advocate writes against the above-said sentence, but

we are compelled to agree with the same advocate either because the woman, who after the

separation, “concealed from the man both the inception of the pregnancy and progress of the

pregnancy itself and the birth,” was not able to indicate, just as the civil sentence has already

noted, the time of the meeting or sexual relationship with her husband.

“The respondent—the petitioner’s advocate continues—did not indicate any name of the inn and

presented no receipt which could have proved the presence of the parties in a certain inn! Where,

I ask, did the parties meet each other?”

The woman however dared to fraudulently ascribe the paternity of her son to the man petitioner.

70. Having considered these things carefully, that is to say, having before our eyes on the one

hand the documents, which definitely deny the petitioner’s paternity of the respondent’s son, on

the other hand however the woman’s counter thesis, we recently, ex officio, insisted or we

requested the respondent to offer a sound and reasonable cause according to which the paternity

of the child should be attributed to the petitioner and not to an unknown father.

“If the judge—if one may use the recent words of the petitioner’s advocate—were to entreat her

to present ‘one plausible reason [...], at least one convincing reason which may lead us to

believe’ that the son must be attributed to the petitioner, evidently the door was open in favor of

the woman herself [...] so that she might present a persuasive reason; but at the time prior to the

inception of the pregnancy the woman was not able to indicate any meeting with the husband

who was separated or any convincing reason.”

71. Nor did the Major Officials of the Supreme Tribunal of the Apostolic Signatura think

differently, as is understood from the decision issued by the same Supreme Tribunal which we

will soon consider below.

The respondent’s advocate complained, at least unbecomingly, or rather overlooking his own

hostile and threatening disposition toward the recent instruction of the cause which was ordered

and carried out ex officio, that is, toward “the manner of questioning the respondent on the part

of the judge [...], which might have made the exception of suspicion legitimate (not proposed

only in deference to his reverence).”

And this was solely a creation of the advocate’s imagination, as the above said Major Officials of

the Supreme Tribunal have demonstrated.

Anyway, the woman both when questioned recently, without bringing forward any valid reasons

concerning the disputed paternity, stood firm in her mere assumption, but contrary to the

decisions of the civil courts: “The legitimate and natural father of my son is Diego,” and when

asked again according to the questions of the petitioner’s advocate on the circumstance that had

already been clarified, “that the son brought forth by you is today definitively proven to have

been conceived by another man, other than Diego,” again, without producing probable contrary

motives, she sought refuge in the forum of her conscience: “It is not true according to my

conscience to ascribe my son to another person, except Diego.”

The documents favor the petitioner, who constantly denied his paternity, and who says: “Three

sentences clearly speak on the merit, and these are: the one by the Tribunal of Benevento and the

second by the Court of Appeal of Napoli (sentences on the merit), [...] and the third by the Court

of Cassation (on legitimacy).”

And he concludes: “As to the merit of the said event I do not believe anything more can be

added.”

For the rest, the depute defender of the bond reviews without a critical analysis of the acts only

the opposing positions of the parties and witnesses nor is he able to counter the solid

observations or conclusions against the petitioner’s thesis.

72. The suspicion about the Ponens or the recusal of the Ponens by the respondent’s advocate,

using his right, was then really and properly presented, but it was rejected by the competent

Institution, as we indicated in the section on facts.

Furthermore, while the recourse was still pending before the Tribunal of the Apostolic Signatura,

the renowned and diligent advocate dared to write, through his instance of 13 July 2001, that the

recusal of the Ponens by him “was proposed only as an extreme act against the incredible series

of violations of the respondent’s rights, which cannot be explained away except in terms of a

gratuitous accusation [...] on the part of the judge against the woman.”

But, before definitively rejecting the petition, the above-cited major Officials of the Supreme

Tribunal noted that all the accusations of the respondent’s advocate lacked any juridic foundation

both in fact and in law in accord with the norm of canon 1448 §1.

73. In conclusion, it is clearly evident from the acts that the man had intended the pre-nuptial

pact entered into with the respondent about her transfer to the city of Padova as a circumstance,

that is, a condition placed in contracting marriage so that everything pertaining to a true conjugal

partnership would have to be verified, and this [condition] was intended as essential.

And therefore it is evident that the petitioner had intended the equation between this essentiality

and the pact itself as essential, which depended solely on the sincerity of the respondent.

On the contrary, the behavior of the woman totally denied to the man, from the beginning of

marriage, what he intended to be essential. And because of this reason on the wife’s part on the

one hand and because of the pleadings on the man’s part on the other hand that the woman really

give up the office of notary in Benevento as soon as possible and gradually fulfill her family

duties in the place where he had his residence and was very eager to live out their conjugal

partnership, serious altercations arose between the spouses, and as a result definitive separation

occurred barely four months after the celebration of the wedding.

74. Having weighed carefully everything said in law and in fact, We the undersigned Fathers

Auditors of the Turnus declare and definitively sentence, responding to the proposed doubt:

AFFIRMATIVELY, THAT IS, THERE IS PROOF OF NULLITY OF MARRIAGE IN THE CASE

ONLY ON THE GROUND OF CONDITION ATTACHED BY THE MAN BUT NOT FULFILLED.

THE UNDERSIGNED FATHERS DECLARE THIS SENTENCE TO EQUIVALENTLY CONFORM

WITH THE AFFIRMATIVE DECISION OF THE FIRST GRADE, THEREFORE EXECUTIVE,

BECAUSE THE FIRST AND THE SECOND DECISIONS ARE BASED ON THE SAME JURIDIC

FACTS ALTHOUGH CONSIDERED UNDER DIFFERENT LIGHT.

Given in Rome, at the seat of the Tribunal of the Roman Rota, on 22 November 2002.

Iosephus Huber

Ioannes Baptista Defilippi

Aegidius Turnaturi, Ponens

Pius Vitus Pinto

Ioannes G. Alwan

With the interposition of a recourse against the conformity of sentences, a decree dated 14

December 2007 was issued.