Lack of discretion of judgment and inability to assume marital rights and obligations as grounds for a declaration of marriage nullity : a contemporary appraisal in Civil and Canon Law

Abstract

This thesis consists of a contemporary appraisal of the incapacity to contract marriage validly due to a psychological condition, causing lack of sufficient discretion of judgment and/or inability to assume and fulfil marital rights and obligations. This necessarily calls for a clear notion of marriage and of matrimonial consent, which notions are treated in the first chapter. Once this is fully established, one passes to examine the grounds of lack of discretion of judgment proportionate to the decisions to contract matrimony and the inability to assume marital obligations. An explanation concerning such obligations is also provided. Finally, given the nature of the grounds of nullity under examination, the last chapter deals with the role which the psychological or psychiatric experts have in such marriage nullity cases and their relation with the judge, who in every case must remain the peritus peritorum. Throughout the thesis, particular reference is made to the situation as contemplated in both canon and civil law, together with the similarities and dissimilarities which such a comparison yields. Besides, these points mentioned are examined in the light of jurisprudence and doctrine, both from the canonical and civil perspective.