Incapacity and Simulation: Mutually Exclusive Grounds or Key Juridic Facts Underlying Conforming Sentences?

* Assistant Professor, School of Canon Law, The Catholic University of America, Washington DC. 1 Pontifical Council for Legislative Texts, Instruction Dignitas Connubii 291§2, January 25, 2005 (Vatican City: Libreria Editrice Vaticana, 2005): “Aequivalenter seu substantialiter conformes considerantur decisiones quae licet caput nullitatis diverso nomine significent et determinent tamen super iisdem factis matrimonium irritantibus et probationibus nitantur.” Elsewhere in this issue John Foster illustrates the differences between formal conformity of sentences and substantial conformity. See John J.M. Foster, “Conformity of Sentences: Something OldYet Something New,” The Jurist 70 (2010) 270–301. See also, Joaquín Llobell, “El valor jurídico de la Instr. Dignitas connubii, su recepción eclesial, el objeto y la conformidad de la sentencia, y la certeza moral,” in Procesos de nulidad matrimonial: La Instrucción Dignitas connubii, eds. Rafael Rodríguez-Ocaña and Joaquín Sedano (Pamplona: EUNSA, 2006) 291–299. 327 The Jurist 70 (2010) 327–367 INCAPACITY AND SIMULATION: MUTUALLY EXCLUSIVE GROUNDS OR KEY JURIDIC FACTS UNDERLYING CONFORMING SENTENCES? Sean O. Sheridan, TOR* Introduction Dignitas connubii 291§2 describes equivalent or substantial conformity of sentences in the context of a request for a declaration of the nullity of a marriage. Paragraph two provides: “Decisions are considered to be equivalently or substantially conforming when, even though they specify and determine the ground of nullity by different names, they are still rooted in the same facts rendering the marriage null and the same proofs.”1 In their commentary on Dignitas connubii, Klaus Lüdicke and Ronny Jenkins address the significance of this provision: Paragraph two (§2) describes the notion of equivalent or substantial conformity of sentences. Two decisions are said to be equivalently conforming when they, like formally conforming sentences, concern the same marriage between the same partners . However, with equivalent conformity, the two sentences use different grounds to establish the nullity, but arrive at their conclusions based on the same facts and proofs. The notion of equivalent conformity recognizes a certain degree of leeway with regard to the legal basis (grounds of nullity) that should be used to evaluate the same set of facts. For instance, equivalent conformity could result from the declaration of the nullity of a 2 Klaus Lüdicke and Ronny E. Jenkins, Dignitas Connubii: Norms and Commentary (Alexandria VA: Canon Law Society of America, 2006) 468–469. See also, Paolo Moneta , “Determination of the Formulation of the Doubt and Conformity of the Sentence,” in Studies on the Instruction Dignitas Connubii,” eds. Patricia M. Dugan and Luis Navarro (Montreal: Wilson & LaFleur Ltée, 2006) 105–113. 3 English translation from Code of Canon Law, Latin-English Edition: New English Translation (Washington, DC: Canon Law Society of America, 1998). All subsequent English translations of canons from this code will be taken from this source unless otherwise indicated. marriage based in one sentence on total simulation and in the other on the exclusion of indissolubility.2 Hence, in a nutshell, for two sentences to be in equivalent conformity, they must be decided on the same juridic facts even if the judges might disagree on the name to attach to the ground upon which the juridic facts lead them to reach their decision on nullity. In this article, we will consider the application of equivalent conformity to the canonical grounds of incapacity and simulation, two grounds that have traditionally been held to be mutually exclusive.As we will discuss in more detail infra, canon 1095 embodies the canonical requirements for determining whether an individual lacks the capacity to enter into a valid marriage. Canon 1095, which is likely quite familiar to those practitioners involved in marriage tribunal proceedings, provides: The following are incapable of contracting marriage: 1º those who lack the sufficient use of reason; 2º those who suffer from a grave defect of discretion of judgment concerning the essential matrimonial rights and duties mutually to be handed over and accepted; 3º those who are not able to assume the essential obligations of marriage for causes of a psychic nature.3 Thus, canon 1095 addresses those who lack the capacity to enter into a valid marriage due to a lack of reason, those who lack due discretion, and those who are unable to...