Monsignor Cormac Burke, Auditor (Judge) of the Roman Rota, Biography
    A Professor of Modern Languages and Doctor in Canon Law, as well as a civil lawyer and member of the Irish Bar, Cormac Burke was ordained in 1955. After twenty years of pastoral and teaching work in Europe and North America, and ten in Africa, Pope John Paul II appointed him a Judge of the Roman Rota, the High Court of the Church. Since 1986 he resides in Rome, where he is also Professor of Anthropology at the Studium Rotale, and of Canon Law at the Pontifical University of the Holy Cross. In the past, he has taught at Maynooth College, Trinity College, Dublin, and The Catholic University of America.
     Author of many works in moral theology, ecclesiology and canon law, he has lectured extensively in the five continents. His most recent books are Authority and Freedom in the Church and Covenanted Happiness. For his writings in the field of marriage and sexual morality, he was the 1995 recipient of the Linacre Award of the National Federation of Catholic Physicians of the United States.  (from Catholic Dossier, 1999)

Les fins du mariage (c. 1055, § 1) restent tin ideal, mais ne constituent pas des obligations essentielles. Qu'en est-il alors du consortium totius vitar? Nest-il pas, selon la sentence d'Annd de f6vrier 1969, tine autre obligation essentielle et donc tine nouvelle source de nullit6? Selon l'A., cette formule n'ajoute rien A la notion de mariage consid6r6 comme partage de sa procr6ativit6; de plus, elle reste vague, comme le d6montre les listes d'didments essentiels qu'on voudrait y inclure. Tout, en somme, revient aux trois 616ments essentiels: procr6ativit6,
exclusivit6 et permanence et toute sentence devrait pr6ciser stir quelle obligation essentielle porte 1'incapacitd. L'interpersonnalit6, qu'on invoque si souvent aujourd'hui, ne constitue pas tin 616ment essentiel autre que la conjugalit6. Pas plus d'ailleurs que la compatibilit6 des caract~res, qui se r6duirait h tine incapacitd relative et non absolue. De la sorte, I'A. s'en prend aux Wes d6fendues par Serrano, lequel accepte I'incapacitd de personne k personne singulibre, tandis que, selon lui, seule compte 1'incapacit6 de personneA institution et 'h ses objets essentiels, que sons seuls la procrAativit6, 1'exclusivitd, et 1'indissolubilit6 du lien conjugal.
1- Rules of Interpretation

"There is no handy rule of thumb," a judge observed in a sentence that came before me recently, "for determining which type of lack of discretion or of incapacity invalidates marital consent." He was of course referring to c. 1095, but I felt he seemed unduly at sea about its interpretation. Canon

This is surely a clear rule for the interpretation and application of the canon.' What the judge in question could more reasonably have complained about is the fact that while the canon speaks of the "essential" [rights and] duties or obligations of matrimony, it does not specify which matrimonial duties are actually to be considered essential. This lacuna is evidently meant to be filled in by doctrine and in particular by jurisprudence. As Pope John Paul II said to the Rota shortly after the promulgation of the new Code: "In the new Code [...] there are canons of special importance for matrimonial law which have of necessity been formulated in a generic way and await further determination, to which solid Rotal jurisprudence above all can validly contribute. I am thinking, for example, of the determination of the defectus gravis discretionis itulicii, of the off cia matrimonialia essentialia, of the obligationes matrimonii essentiales to which c. 1095 refers."z

It would be premature to say that an overall consensus on the matter has emerged (even on the Rotal level), and this article simply seeks to be one further contribution to an on-going process and study.

It should scarcely be necessary to point out that the canon is not concerned with merely moral rights,3 i.e., rights to which a person has a moral claim in conscience, but to which the law gives no special recognition or protection (for instance, the rights and obligations of love and respect between parents and children). Its concern is juridical rights and

Further, not all the juridical rights or obligations of marriage, even if important, are necessarily essential in the sense envisaged by the canon. Property rights are certainly important, and could be the object of a lawsuit between the spouses; but they are not among the essential rights that c. 1095 refers to. In our context, the essential rights and obligations must be those which so fundamentally touch the essence of marriage that, if the capacity of grasping them rationally or of assuming them in a minimal way is lacking, effective consent is impossible and marriage can absolutely not be constituted or brought into existence. Since these rights and obligations are those which are necessarily undertaken by whoever gives proper matrimonial consent, it should be possible to establish their nature from a consideration of the object of consent itself.

2 -Essential Obligations
Must Derive from the Object of Consent

Now here again we run into some difficulties, for the 1983 Code of Canon Law, in c. 1057, § 2, offers us a new formula of the object of consent, one which is not only very different from the corresponding formula of the 1917 Code (c. 1081, § 2), but whose meaning or content is

not yet adequately or univocally established in doctrine or jurisprudence.'

Matrimonial consent according to the old Code was "an act of the will by which each party gives and accepts a perpetual and exclusive right over the body, for acts which are of themselves suitable for the generation of children" (c. 1081, § 2). Here consent had as its object the gift of a concrete right - the ius in corpus. Canon 1057, § 2, of the new Code describes consent in very different terms: "an act of the will by which a man and a woman, through an irrevocable covenant, mutually give and accept each other in order to establish marriage." Here, so it seems, the object of consent is the parties themselves: their giving and accepting of each other.

Therefore in the 1917 Code, consent involved a traditio iuris. In the 1983 Code, consent involves rather a traditio suiipsius: the object is now the gift of one's self. Now a true gift implies the transfer, from the giver to the receiver, of a proprietary right or ownership of what is given. But it is obvious that each spouse does not transfer ownership of his or her person to the other. So it is clear that the concept of "gift of self' cannot be understood

Working within the terms of the law in force up to 1983, jurisprudence was careful not to speak of a traditio corporis - a handing over of the body -,but of a traditio iuris - a handing over a right, specifically of a ius in corpus, a right over the body. If marriage consent does not make one spouse owner of the body of the other, still less does it give him or her ownership of the other's person. It would therefore seem that the notion of the traditio personarum needs to be juridically refined into that of the handing over of a ius in personam: a right over some personal element so proper to the individual, so representative of him or her, that its traditio et acceptatio constitutes the conjugal gift of self measurable in juridical terms.

If we follow St. Thomas's teaching that the object of the wife's matrimonial consent is not so much her husband, as conjugal union with her husband (and similarly the husband's consent is to conjugal union with his wife)," we can suggest that the right exchanged in consent is a right over the conjugal aspects or attributes of the person, i.e., over his or her conjugal and complementary sexuality. However, we evidently need to go further if we are to establish what is really specific to the gift of conjugal sexuality, and identifies it as such, and why it can legitimately represent a gift of self.

Statements like "I give you my masculinity [...j I give you my femininity" are scarcely concrete enough for juridical analysis. They remain on the level of mere metaphor or poetry. There is a statement however - "I give you my procreative power" - that has nothing merely metaphorical about it. To give to another a right over one's procreativity has a totally concrete

character to it: one that is indeed subject to juridical appraisal or measurement. The gift of procreativity has, in particular, a unique capacity to express the gift of self and the desire for union with one's spouse. It is in fact the first element that truly specifies and distinguishes the object of matrimonial consent. While a personalist analysis is specifically called for here, space permits only a brief reference to a thesis that I have more fully developed elsewhere.5

A couple in love not only regard their love as unique, but wish to give unique expression to it. Nothing can so singularly express their marital love and union as their child, and the act by which, in virtue precisely of its procreative orientation, they become one flesh. Procreativity therefore, far from being a matter of mere biology, as is maintained at times, pertains to the most intimate aspirations of human love and the desire for spousal union, and as a result is eminently personalist. In fact, in a truly human understanding of conjugality, the personalist and the procreative view are not in opposition but are rather inseparably linked. The readiness to share one's procreative power personalizes the marital relationship in a way that no other act can. It shows that each spouse is truly unique in the other's eyes, for each is prepared to share with the other, and with no one else, the unique power which is actualized in the union of procreative complementarities.

"What makes marital intercourse express a unique relationship and union is not the sharing of a sensation but the sharing of a power, of an extraordinary life-related, creative physical sexual power. In a true conjugal relationship, each spouse says to the other: "I accept you as somebody like no one else in my life. You will be unique to me and I to you. You and you alone will be my husband; you alone will be my wife. And the proof of your uniqueness to me is the fact that with you - and with you alone - am I prepared to share this God-given life-oriented power."

Thus the bonum prolis can and should be reinterpreted in a personalist key, so that the reciprocal gift of conjugal procreativity is seen to uniquely express the mutual self-gift power to marital consent. A brief consideration of the bonum fidei and the bonum sacramenti can illustrate how these other ,, . traditional bona are also essential elements of the conjugal self-gift, object of matrimonial consent.

What is implied in the marital sese tradere is the gift of the fullness of spousal sexuality; and this cannot be full unless, besides being open to life, it is exclusive and permanent. In other words, if the gift of sexuality is to be truly human and conjugal, it must be characterized by the further elements or properties of uniqueness and indissolubility.?

There is in fact no middle term between permanent and transient. There is no middle choice between the lasting and unbreakable relationship of marriage, and what is no more than a temporary sexual liaison; between a spouse, to whom one gives oneself for life, and a sexual partner, changeable at will, If the norm for the human sexual partnership is that it can be not only entered upon but also broken as one or other partner wishes, then "marriage" has no particular meaning. It is a form that confers "legality" on transient alliances; but there is no reason - beyond social convention -why people should respect it, or why they should not prefer to remain in a non-formalised relationship.

Conjugal unity or exclusiveness derives from the same logic, and equally corresponds to the nature of human love. One's self is indivisible and unrepeatable. It therefore cannot be given to several persons at the same time; it can only be given to one. "I give you my self' is the affirmation that characterizes conjugality. But if one spouse intends to make the same gift of his conjugal self also to other persons - if he proposes to divide his conjugality -,then it is at the most apart of his conjugal self that he gives to each one.

We could synthesize these considerations by saying: the distinctive self-gift which is the object of matrimonial consent, consists in the gift of conjugal sexuality; and this gift: a) in order to be sexual - i.e., in order to actualize shared and complementary sexuality -, must be open to life; and, b) in order to be conjugal, must be exclusive and permanent. So, the marital self-gift - the traditio coniugalis - is the donation of one's sexuality, in its concretely procreative aspect, made in a permanent and exclusive way.

 Our analysis therefore, applying the personalism of the Second Vatican Council and of Pope John Paul 11, marks a line of continuity with tradition. Procreativity, exclusivity, permanence - the Augustinian bona - define the essence of the conjugal commitment. And the oqbLept of m_ arital consen - self-gift of the spouses - is therefore specified by these t ee essential characteristics or properties of marriage.  If the essential obligations of matrimony must derive from the (juridical) object of matrimonial consent - i.e., from what the spouses necessar ily and constitutively consent to-, we would now seem to have attained a more certain position from which to state (at least as a first approximation) what these obligations are: they are those that necessarily derive from the Augustinian bona, which are "inter essentialia matrimonii."

 We appear to be on sure ground here, for it is clear that matrimony cannot come into existence without basic understanding and free acceptance of what is fundamentally implied in these three bona, or without the ability to assume it. As we read in a sentence coram Pinto, of 8 July 1974, "[i]t must be borne in mind that not every defect is sufficient for a decla ration of nullity, but it must be so great that it renders the contracting party incapable of making a free choice or of assuming the essential duties of the `three bona" 10 and in another of 3 July 1979, coram Pompedda: "Not every defect of balance or maturity is enough to induce the nullity of matrimonial consent; this can only be brought about by a defect such that it makes the . '. contracting party incapable of a free choice or of assuming the essential obligations and in particular the three bona of marriage.""

 A psychosis is normally considered grave in itself. But it must be proved not only that the psychotic condition was present at the time of the wedding, but also that it produced an incapacity in relation to some essential matrimonial obligation. If one is dealing with satyriasis or nymphoma nia (however classified), and the alleged condition is shown to have been truly present, then the incapacity can be considered established. In the case of a paranoid personality, however, the same would not necessarily seem to follow. A man might have a deep paranoid sense of being harmed or exploited by persons totally unconnected with married or family life (e.g., y professional associates or business rivals). No doubt this can be upsetting for his wife, insofar as he manifests his fears to her. But it is not evident how this particular condition relates to, and less still how it incapacitates for, any essential obligation of marriage.12 Much the same would seem to apply to other frequent personality disorders: histrionic, narcissistic, dependent con ditions, etc.

This is all the more true if one is dealing with milder psychic conditions, such as neuroses frequently are. Symptoms of moderate neurosis, as often found in persons suffering from a certain degree of hysteria, obsessive ideas, compulsive behavior, etc., cannot reasonably be taken as a basis for a sentence of nullity. They fail both on the count of lack of gravity, as well `s as on that of irrelevance to some essential obligation of marriage.

 5 - Essential Obligations and the Ends of Marriage

 Without going further into this, we proceed to another important point which must be pondered. Essential rights and obligations derive from the essence of matrimony, and from everything necessarily connected with the essence, such as the essential properties, but, as I see it, they do not derive

Since the ends of marriage fall outside its essence, I do not think it is `. correct to wish to determine essential rights and obligations in function of those ends; they must be determined rather in function of the essence, and its essential properties (which do enter the essence, inasmuch as they' describe aspects of the essence). This is why I think one cannot properly individuate juridically essential rights and obligations in reference to the bonum coniugum. Marriage is ordered in fact both to the good of the spouses and to the procreation and education of children (c.1055, § 1). But if, as Raad points out, an incapacity to effectively generate does not invalidate marriage, neither, it would seem, does an incapacity to achieve the bonum coniugum.16 One has the right to what must be given by the, other; not to what marriage itself may or may not give, for this latter gift depends not just on the spouses but ultimately on God. Sometimes God's plan for the good of the spouses involves a childless marriage; and it not infrequently seems to involve a union where personality differences create tensions between the spouses that can pull the marriage apart - unless they have recourse to prayer and sacrifice so as to learn to get on together. The solution of this point (which space does not permit us to pursue here) necessarily depends on how one understands the bonum coniugum, a; subject to which I have devoted consideration elsewhere."  ~-

6 -- "Consortium-communio vitee"

I understand the view that would wish to find a broader source than merely the three bona, for the essential rights and obligations contemplated in c. 1095. And I sympathize too with the desire to find such a source in the consortium totius vine or the communio vitro et amoris. But it seems to me that once one tries to establish juridically how these latter concepts, of themselves, originate essential rights and obligations, one runs into grave difficulties.

Can we not say that an incapacity for establishing the consortium totius vitro invalidates consent? I think we can; but I am not sure that we have an i autonomous ground here, i.e., one that covers anything really different to what is embraced in the three bona. The consortium totius vitro, however traditional as a description of marriage, offers little by way of defining it, unless one qualifies the consortium or the "life" in question with the adjec tive "conjugal." A homosexual consortium for the whole of life could exist,  and yet would not constitute marriage. What is essential in the consortium is conjugality; and what is essential in conjugality is covered by the bona.

Is capacity for the acceptance of the consortium torius vitro [coniugalis] not essential for the valid establishment of matrimony? Of

The personalistic value of the bona has unfortunately become obscured in canonical usage over the centuries; which makes its rediscovery all the more urgent. In order to resee these goods in a personalist light, one must overcome the tendency to regard the institutional and the personalist aspects of matrimony as being necessarily in opposition.2° The bona, as we have sought to show earlier, relate to singular expressions of personal and mutual commitment. They are in fact the first elements that personalize the institution of marriage. Nothing, we insist, so underlines the uniqueness and extent of the conjugal self-donation as the fact that it is the gift of personal procreative power made to another in an exclusive and life-long union.

This can help us to examine the suggestion that a further source of essential rights and obligations can be derived from the concept of the communio vitae.

The Rotal decision coram Ann of 25 February 1969 suggested that the object of matrimonial consent should include not only the ius in corpus (he of course was writing under the old Code), but also a further essential right - the ius ad vitae communitatem vel communionem.zl The proposal, subjected to proper analysis, appears to lack substance, for the very reason just given in speaking of the consortium. A right to communion of life, in our context, can only mean a right to the communion of conjugal life. Then, however, Ann's proposal simply signifies that consent to marriage originates a right to married life, which is obvious and adds nothing to our knowledge. It is hard to discover any autonomous entity to the proposed

The subsequent history of the right, as proposed by Annd, would seem to bear this out. Especially in the 70s and early 80s, certain jurisprudential and canonical trends strongly proposed the right to communion of life or to the intimate communion of persons, as a new and essential right of matrimony, and pressed vigorously for its incorporation into the revised Code of Canon Law. The debate was marked by the notable sentence of the Apostolica Signatura of 29 November 1975. The special panel of five I cardinals (with Cardinal Staffa as ponens) went into a lengthy examination of the notion of the ius ad communionem vitas, and concluded that it essentially signifies the ius ad individuam unitatem vitae sexualis,zz i.e., the right to exclusiveness in the unitive aspect of sexual life. Thus it adds nothing to the rights involved in the bona, particularly the bonum fidei and the bonum prolis.

Despite the Signatura sentence, the proposed right was at one stage actually included in a draft canon for the revised Code. Nevertheless, it was finally dropped because, as appears from the minutes of the Pontifical Commission charged with the revision, it was considered to be equivalent to matrimonium ipsum and therefore redundant.2' In other words, the ius adj communionem vitae simply means a ius ad matrimonium.2° Jurists appear to be accepting the logic of this, for it is rarer nowadays to find the right seriously put forward as having any independent entity.

A right to a communion of life is as appealing as it is broad and vague. For practical juridical purposes, it appears pointless to propose such a right as essential or constitutive to matrimony, unless one clearly specifies its content. This has always been the trouble. The undoubted attractiveness of the concept could never make up for its equally undoubted vagueness. In practice all attempts to give it solid juridical body seem to have ended in failure.

This point was later taken up in a decision of the Apostolic Signatura of 17 October 1972. Having expressed serious doubts whether the ius ad communionem vita could be regarded as constitutive of marriage independently of the rights involved in the three bona, the decision went on: "But even if the right and duty regarding communion of life were proper to marriage - as a right and duty different to those represented by the three matrimonial goods - a very precise definition would be required of the elements that constitute this right and duty; and this is something that has not yet been achieved by doctrine or jurisprudence.""

It is true that some authors, undismayed by this difficillimum task, have not hesitated to make a list of the elements which they consider essential for the communion vita, suggesting that matrimonial consent gives a strict right to each of these in such a way that the person incapable of living or giving any of them is incapable of true and valid consent. Elements suggested include: "oblatory love," "responsibility in establishing conjugal friendship," "maturity of personal conduct throughout the ordinary events of daily life," "stability of conduct and capability of adapting to circumstances,'.' "gentleness and kindness of character and manners in mutual relationships," etc.27

It is clear that elements such as these are highly desirable in married life, and their presence contributes greatly to its success and happiness, just as their absence can lead to married unhappiness and failure It is also clear that the person who is in stable possession of these qualities

Any true anthropological view of matrimony (and not just a Christian view alone) surely sees marriage more as a point of departure than as a point of arrival. The maturity required for valid consent is properly that of those who are setting out on adult life, not of those who have already reached the ideal term of human growth. As we read in the sentence coram Pompedda of 3 July 1979, quoted earlier: "Marriage cannot be considered as the crowning of maturity already acquired, but rather as a step in the process by which fuller maturity is to be attained."29 Canon 1095 speaks of (grave) lack of discretion, not of (simple) lack of maturity; and I feel we should carefully note the difference.

In any case, and to conclude with the ius ad communionern vita', it seems that twenty years after the Signatura decision quoted above, neither doctrine nor jurisprudence have managed to give any acceptable explanation of how this right has an autonomous entity of its own, or to show how it includes some element essential to matrimony which is not already covered by the three bona.

7 -A Sentence Must Specify the Essential Obligations in Question

The marital relationship certainly involves many other [moral] obligations which are important to the fullness of conjugal life, but are not essential to its [juridical] constitution or coming into existence. Great difficulty, or even what seems to be radical inability, to live up to these obligations (such for instance, as an irascible person's inherent incapacity to control his or her temper) does not render a marriage null. As we read in

The juridical imprecision of the phrase "community of life," or even of "conjugal community of life," means that its use in cases related to c. 1095 is not helpful unless the context has already clearly analysed or specified the essential elements of conjugality. One should reject, as too vague and therefore inadequate for grounding a judgement of nullity, a simple conclusion that "some" disorder was present which "prevented the very possibility of the coming into being of the conjugal community of life." 1n cases of alleged incapacity judges should require, and advocates should state, the specific nature of the essential matrimonial obligation to which the asserted incapacity is referred. "Lest marriage nullity sentences on grounds of incapacity for fulfilling conjugal obligations by reason of some psychic illness or abnormality, become so vague as to embrace all marriages that have turned out unhappily, they must clearly state the obligation that is in question and, once this is clear, why the alleged illness or abnormality is, judged to have made it impossible to fulfil that obligation.""

One frequently enough comes across phrases like: "The Court is morally certain that the respondent did not exercise sufficient discretion of  ' i judgement when he gave consent." This again is not specific enough to ground a judgement of nullity, which must always designate the essential obligation to which the grave lack of discretion or the inability to assume  related.

 To be essential it would seem that the rights and obligations must necessarily be common or reciprocal (as those deriving from unity, procreativity, and permanence undoubtedly are). It is therefore question able if an obligation such as household administration - paying bills, etc. - can be held essential. It is no doubt important to conjugal life, but there are serious difficulties to regarding it as an essential obligation, within the terms of c. 1095; above all because it is not of itself a common obligation, there being nothing to prevent it being the responsibility of the husband in
one marriage, or of the wife in another.

8 -- Interpersonality

Grave lack of discretion and incapacitas assumendi are both referred by c. 1095 to the essential obligations of matrimony. They are to be measured, therefore, in relation to the institution of marriage, and not to the particular spouse whom a person chooses. Some acceptable juridical stand- ards can be established for measuring capacity to appreciate or to assume ., . the per se obligations of marriage. None can be established for measuring the capacity of one person to make a wise choice of a particular partner, or to be able to live married life successfully with him or her. Tribunals can reasonably be asked to judge person-to-institution capacity for, although ?. the task is certainly delicate, the points which mainly guide their considera-

While I hold that the personalist understanding of marriage offered especially by Vatican II and the present Pope is immensely enriching (also for the canonist), I am not so sure to what extent interpersonal theories enable us to make a deeper juridical analysis of the matrimonial institution.

Interpersonal relations are constant and habitual in human society. When they are characterized by affection or love, as in the case of purely human friendship or also, on a more supernatural plane, or religious life, they allow for many degrees of union or communion of life. Marriage offers a unique form of such communion. However, it is evidently not interpersonality so much as conjugality which characterizes matrimony, and which must be taken as the criterion for the specification of essential matrimonial rights. Therefore when one states that marriage is by definition an interpersonal relationship, one is stating the obvious, but not the specific. Moreover, one may be in danger of subordinating conjugality to interpersonal ity, and of thus being led to adopt mistaken criteria for determining what a person who marries is essentially bound to. It is not so much the interpersonal ity but the conjugality of the relationship that has to be subjected to juridical analysis. If this is not adequately done, a phrase such as "the right to an essential interpersonal relationship" remains so vague as to be virtually meaningless.

9 -Relative Incapacity

As applied to marriage, the interpersonal theories tend to place the accent on the reciprocal capacity of the spouses to adapt to each another. One easily goes on from this to develop the idea of relative incapacity, and to postulate compatibility of temperament or character as a requisite for valid consent.

One has a right, when marrying, to find certain essential capacities in one's partner (capacity for a faithful one-spouse relationship, for instance); but one cannot posit a right to particular qualities of temperament or

To my mind the theory of relative incapacity should also be judged in the light of the common pastoral experience that many highly "integrated" marriages are between couples with extremely diverse and even apparently opposed characters, who could well have ended up incompatible unless they had resolved (in an evidently maturing effort) not to do so.36

Moreover, the basic principle of Christian personalism as enunciated by Vatican II - the human [...] can attain its full identity only in sincere self-giving (GS, 24) - clearly stresses that in any interpersonal relationship, and a fortiori in marriage, expectations of receiving or being loved have to be subordinated to the more truly Christian norm of giving and loving. In other words, any possible ius ad amorem would have to be weighed against the accompanying obligatio amandi; both the right and the duty involved seem to me to strongly resist juridical analysis.

Serrano has been the main proponent of the theory of relative incapacity at the Rotal level. In line with the thesis that marriage is essentially an interpersonal affair, he holds that in order to determine capacity, it is not enough to examine the personalities of the parties, each in isolation. One must primarily examine their personalities in mutual interaction; only such an analysis allows one to judge their capacity for establishing the interpersonal relationship essential to marriage.

I find no solid basis in law, or in Christian theology or anthropology, to justify this theory." To emphasize the point made above, consensual

It would therefore seem outside the competence of the law to judge relative moral capacity. Consequently, the simple fact that a person feels, morally incapable of keeping up conjugal life with the particular partner he or she had chosen, while it might offer pastoral grounds for advising separation, would provide no juridical grounds for judging marital consent' to have been null.

In a recent article, Serrano maintains that the interpersonal conjugal relationship is ontologically prior to the qualities or properties - the bona - which qualify it; therefore, if interpersonality is lacking, it makes no , ; sense to speak of the bona, since one cannot predicate properties of a non-' existing thing." I would see the matter the other way around. The conjugal interpersonal relationship has no autonomous existence independently of the bona, nor can one properly speak of the relationship being prior to them or existing first, for it is the bona which define it and give it substance. So true is this, that the absence or exclusion of any one of the bona (e.g., in the' case of simulation) makes the establishment of the conjugal relationship impossible. Without the bona, in other words, it makes no sense to speak of the conjugal interpersonal relationship, for it cannot exist. 'S

In c. 1101, § 2, what is covered by the phrase "essentiale aliquod elementum"?^° Would it not seem that essential rights and obligations derive from it? Some have maintained that it refers to the ius ad vitae communionem. As pointed out, this appears no longer acceptable, for the tautological ius was rejected as lacking in substance. To my mind, the essential element or elements here referred to must cover the bonum prolis,°t i.e., procreativity, insofar as this is not yet generally referred to as an essential property - which I believe to be its proper denomination.°2

For our purpose, in any case, essential elements and essential rights and obligations are not the same thing; essential rights and obligations have to be derived from the essential elements. For instance, if one can say that the ordinatio ad bonum coniugum is an essential element,°3 then the rights and obligations deriving from it coincide with those deriving from the three Augustinian bona. It is these that provide the basis for defining the essential rights and obligations through the fulfilment of which marriage can attain its institutional ends.

It may be objected against this analysis that, while it covers incapacity arising out of conditions such as sexual hypermsthesia (which would clearly go against the bonum fidei), it does not seem to cover cases of homosexuality. Surely a homosexual condition incapacitates for marriage? Pastoral experience suggests that we are wise to reason carefully here. There are milder expressions of homosexuality (as was true in the concrete case of transvestism mentioned earlier), and many people who should be classified as mildly homosexual in that sense want married life, and moreover are accepted by their spouses, despite the difficulties that their condition gives rise to. This is where careful reasoning is called for: their condition in volves undoubted di~culties-but not necessarily incapacity-regarding the essential duties of married life. Any blanket conclusion that any and every person with homosexual tendencies is incapable of marital consent,

That of course is not to say that nullity should never be declared because of homosexuality. But when it is a case of one partner discovering a pre-existent homosexual condition in his or her partner which seriously disturbs conjugal life, I feel that one would almost always be on proper and surer grounds in alleging dolus (c.1098), rather than trying to force the case in under c. 1095, 3°.

Conclusion

 As I mentioned at the begining, this article is meant as a simple contribution to an ongoing debate. The considerations offered here obviously call for completion; and, it may well be, for correction. Nevertheless, from the analysis so far effected, I feel that whatever the extent of the moral obligations to which marriage gives rise, the only sure basis from which to derive its essential - constitutional - juridical rights and obligations (as referred to in c. 1095) is that offered by the Augustinian bona: exclusive ness, procreativity, and indissolubility. Other suggested rights and obligations appear to be either not essential or not constitutional, 44 or else they simply derive from the three bona, on which they are dependent and to which, in any strict juridical analysis, they should be referred.
 

* Auditor, Tribunal of the Roman Rota, Vatican City.
1. The Pope has given another equally clear rule. Consensual incapacity - whether it derives from the mind or from the will - can only be posited in the presence of a grave psychic anomaly (Address to the Rota, 5 February 1987, in Acta Apostolica Sedis [=AAS], 79 (1987), p.1457). Cf. C. BURKE "Some Reflections on Canon 1095; " in Monitor ecclesiasticus, 117 (1992), pp. 133-150.
2. Address to the Roman Rota, 26 January 1984, in AAS, 76 (1984), p. 648.
3. Cf. J. HERVADA, "Obligations esenciales del matrimonio," in J.A. FUENm (ed.), Ineapacidad consensual para las obligaciones matrimoniales, Pamplona, Ed. Universidad de Navarra, 1991, p. 24.
4. Suppl., q. 45, a. 1.
5. "Matrimonial Consent and the «Bonum prolis»," in Monitor ecclesiasticus, 114 (1989), pp. 397-404; "Procreativity and the Conjugal Self-Gift;" in Studia canonica, 24 (1990), pp. 43-49.
6 C. BURKE: "Marriage and Contraception;" in L'Osservarore romano, weekly ed. in English, 10 October 1988, p. 7.
7. Cf. GS, 48..
8. JOHN PAUL 11, Apostolic Exhortation Familiaris consortio, no. 11, in AAS, 74 (1982), p. 92.
9. Cf. c. FEuci,18 January 1955, in Sacra Romantr Rota decisiones seu sententim (_SRRDec.), 47 (1955), p. 54.
10 "Prx oculis habendum est non quemlibet defectum sufficere ad matrimonii nullitatem declarandam, sed tantum debere esse, qui contrahentem libera; electionis peragenda vel trium bonorum essentialia onera assumendi incapacem reddat" (SRRDec., 66 (1974), p. 501).
11 "Non quivis defectus aquilibrii vel maturitatis sufficit ad inducendam
matrimonialis consensus nullitatem: istam inducere tantummodo valet defectus tabs qui ', contrahentem efficiat incapacem libera electionis vel adsumendi onera essentialia atque in specie tria connubii bona" (ibid., 71 (1979), p.. 388).
12 Obviously, a different judgement might emerge if his condition were displayed precisely in pathological and groundless questioning of his wife's fidelity.
13. Cf. c. BURKE, 18 June 1990, no. 9, in Forum, 3 (1992), pp. 103-104.14. J. Hervada holds that they do, although he finds difficulty in alloting juridical status to the obligations involved in the bonum coniugum, as he understands it: see his "Obligaciones . . ` 'esenciales del matrimonio," pp.18-39.
15 "[...] animadvertendum est fines matrimonii vel contrahentis, elementa essentialia obiecti consensus non constituere, aliter ac quidam auctores et iudices putant. Qui, contendunt, est incapax finis, est incapax matrimonium ineundi et consensum validum eliciendi. Satis est ad hanc theoriam confundendam commemorate c. 1068, § 2: 'Sterilitas matrimonium nec dirimit nec impedit'. Quod de fine principali matrimonii dicitur, a fortiori de aliis finibus dici
potest" (SRRDec. , 67 (1975), p. 243).
16 The bonum coniugum, rather tnan as an essential obligation, would seem better classified as an effect of marriage, as an effect, concretely, of the observance of the essential , obligations involved in the three Augustinian bona.
17 "The «bonum coniugum» and the «bonum prolis,: Ends or Properties of Marriage?" in The Jurist, 49 (1989), pp. 705-709.
18 "Si b sempre affermato nella dourina canonistica the 1'elemento della educazione della prole, alla quale il matrimonio b pure ordinato, non pub essere assunto come essenziale nella categoria di diritti a obblighi essenziali. In veritA, anche nel nuovo Codice, tale dovere 6 collocato tra gli effetci del matrimonio (cap. VIII, c. 1136), a non tra le obbligazioni la cui esistenza 6. enunciata ma non individuata nd specificata nel c. 1095 a nel c. 1101, 2" (G. BARBERINI, "Sull'applicabilitit del c. 1095 al tossicodependente," in tl Diritto ecclesiastico, 96 (1985), p. 164).
19. See the decisions of the Apostolic Signatura mentioned later: that of 17 October 1972, rejecting the thesis that the ius ad consortium vita is distinct from the rights comprised in the three bona (Periodica, 62 (1973), p. 579); and the sentence of 29 November 1975, concluding that the consortium vita, as essential to marriage, simply signifies the unitive aspect of marital sexual life (ibid., 66 (1977), pp. 310-311).
20 Cf. my study, "Marriage: A Personalist or an Institutional Understanding?" in Communio, 19 (1992), pp. 278-304.
21. SRRDec., 61 (1969), p. 183.
22. Cf. Periodica, 66 (1977), p. 310.
23. Cf. Communicationes, 9 (1977), p. 374; (15) 1983, pp. 233-234.
24 A sentence of 31 January 1976 c. Lefebvre, says that the ius ad vitae communionem "is not independent from the right to the conjugal act with its essential properties, but more properly signifies and indicates all of these in the context of what that right embraces, i.e., the ordination to offspring, perpetuity, and exclusiveness" ("non est quid independens a iure ad coniugalem actum cum eius essentialibus proprietatibus, sed rectius significat seu denotat ista omnia ratione habits eorum qua' illud complectantur scilicet ordinationis ad prolem, perpetuitatis et exclusivitatis," SRRDec., 68 (1976), p. 39).
25 "lplnus est difficillimum modo accurato et exhaustivo definire et explicare quid -sub respectu iuridico-ad substantiam istius «consuetudinis et communionis viLx»" (ibid., 61 (1969), p. 183).
26 "Sed edam si ius et officium ad communionem vita essent proprium matrimonii -et quidem uti ius et officium diversum a iuribus et officiis qua tria bona matrimonii constituunt--, definiri accuratissime deberet quaenam sint elementa constitutiva huius iuris et officii, id quod nondum factum est a doctrina vel a iurisprudentia" (Periodica, 62 (1973), p. 579).
27 The Signatura sentence of 29 November 1975 criticised the inadequacy of these suggestions (cf. ibid., 66 (1977), pp. 312-313), as did the Rotal Sentence c. Raad quoted earlier (SRRDec., 67 (1975), pp. 244.245).
28. AAS, 80 (1988), p. 1183.
29 "Matrimonium haberi nequit culmen maturitatis acquisitae, sed potius gradus in processu ad pleniorem maturitatem acquirendam" (SRRDec., 71 (1979), p. 388).
30. Jura essentialia enim, non vero determinationes accidentales vita coniugali, tradere et accipere debent coniuges dum consensum matrimonialem manifestant 1...1. Si ipsi igitur quodammodo impediantur, ut recte intelligant et libere eligant non iura et onera matrimonii, sed tantum honestum modum agendi in adiunetis, ex matrimonio consequentibus vel in futura vita coniugalis consuetudine adventiciis, validum consensum ad matrimonium ineundum certo prastare valent" (ibid., 62 (1970), p. 1152).
31. "Ne sententix pro nullitate matrimonii ex incapacitate onera coniugalia adimplendi propter morbum vel abnormitatem psychicam adeo vaga: eveniant ut cuncta amplectantur connubia qua infelicem nacta sint exitum, necesse est in ipsis aperte significari de quo tandems' onere disputetur et, hoc patefacto, cur morbus vel abnortnitas de qua agitur impedivisse iudicetur quominus onus illud adimpleri posset" (c. EGAN, 14 January 1981, in ibid., 73 (1981), p. 13). r
32. Cf. c. Burke, Birmingham, sentence of 13 June 1991.
33. AAS, 79 (1987), p. 1457.
34. Cf. c. POMPEDDA, 19 February 1982, no. 9, in SRRDec., 74 (1982), p. 90.
35. Cf. BURKE, "Some Reflections on Canon 1095," pp. 141-146.
36. Which also underlines that one cannot resolve the bonum coniugum into a question of natural compatibility, nor can one hold that seeming incompatibility is necessarily an enemy of the good of the spouses.
37. Which is fact is not accepted in the mainstream of Rotal jurisprudence. Serrano himself, referring again to the theory in a judgement of a few years ago (Lafayetten., 26 May 1988, no.4), cites only some decisions c. Pinto as supportive of that view. Rotal decisions which reject the concept include c. RAAD, 14 April 1975 (SRRDec., 69 (1975), p. 260), c. DI FEuCE, 12 November 1977 (ibid., 69 (1977), p. 453), c. LEFEBvRE, 4 February 1978, c. AGUSTONn, 20 February 1979, c. PARISELIa, 15 March 1979, c. BRuNo, 22 February 1980 (ibid., 72 (1980), p. 127), c. MORE, 27 May 1981 (ibid., 73 (1981), pp. 314-317, c. POMM:DDA, 19 February 1982 (ibid., 74 (1982), p. 90), c. EGAN, 19 July 1984 (ibid., 76 (1984), p. 471), c. STANKIEWICL, 24 October 1985 (ibid., 77 (1985), pp. 448ss), c. RAGM, 24 May 1988, no.5; c. BURKE, 22 July 1991, nos. 7-8, etc.
38. Pinto claims that the discretion necessary for validity means deliberation about the essential rights and obligations "non in abstracto sed in casu concreto considerata" (22 November 1985, in ibid., 77 (1985) p. 538). This does not seem logical to me. Imprudence or irresponsibility in marrying a particular person cannot be raised to the level of an invalidating lack of discretion about the essential obligations of marriage (cf. c. COLAGIOvANM, I1 December 1985, in ibid. 77 (1985), p. 571).
39 "La consideraci6n existencial del matrimonio en las causas canbnicas de nulidad por incapacidad psiquica," in Angelicum, 48 (1991), p. 177.
40. "If either or both parties through a positive act of the will should exclude marriage itself, some essential element or an essential property of marriage, it is invalidly contracted" (emphasis added).
41. That this was the intention of the drafters of the Code seems suggested by the fact that the phrase "essentiale aliquod elementum"replaces the "omne ius ad coniugalem actum" of c. 1086 of the 1917 Code.
42. Cf. my "The abonum con iugum» and the «bonum prolis»," pp. 709-713.
43. Cf. Communicationes, 15 (1983), p. 221.
44. Le., they refer, as we noted earlier, not to what is essential for the esse of married life, but simply to what is desirable for its bene esre.