| Year 1991 Canonical Studies, PP. 11-36
PERSONS INCOMPETENT TO CONTRACT MARRIAGE
ACCORDING TO CANON 1095
(Fr. Augustine Mendonca)
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1. INTRODUCTION

Marriage is a natural institution and, unless otherwise impeded by law, all persons have the natural right to marry. The Church upholds this fundamental right in Can. 1058 of the revised Code of Canon Law which reads: “All persons who are not prohibited by law can contract marriage”. The term “law” here implies both natural and positive law whether ecclesiastical or civil.

One of the most utilized ecclesiastical laws in marriage tribunals is contained in Can. 1095 which, according to canonical doctrine and jurisprudence, expresses a principle of natural law. In effect, it declares that persons lacking sufficient use of reason, or due discretion of judgement concerning the rights and duties of marriage, or incapable of assuming the essential obligations of marriage for reasons of “causes of a psychic nature”, cannot contact marriage. In other words, they are considered by ecclesiastical law as inhabiles to enter into a marital contract.

Canon 1095 has an interesting and long legal history. As an expression of natural law, it is open to further determination by canonical and interdisciplinary study and research. That is why, in his allocation to Rotal Officials on January 26, 1984, Pope John Paul II explicitly stated that Can. 1095, among other similar canons, has been formulated in a generic way to await further determination by qualified jurisprudence especially of the Rota.

Since the promulgation of the revised Code, most of the Rotal Judges have been making a conscientious effort in furthering the interpretation of the norms of Can. 1095 in the light of conciliar insights into the nature of marriage. On the theological plane, their focus of study is directed primarily to the theological developments which have been taking place in magisterial teaching on marriage. In the area of psychology/psychiatry, they are striving to integrate the clinical aspects of psychological disorders/disturbances into developing jurisprudence on the norm of Can. 1095. In this brief study we will examine the most recent approaches to the juridic principles of Can. 1095 which should help us in our understanding of some of the essential factors which contribute to a person’s incapacity to contract marriage.

2. Marriage as a Partnership of the Whole of Life

Canon 1057, §2 states that the “matrimonial consent is an act of the will by which a man and a woman, through an irrevocable covenant, mutually give and accept each other (sese) in order to establish

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