ABSTRACT

Starting from a recent coram Jager decision, some questions are raised about the compatibility between the will of the prospective spouse directly and principally intended about a certain quality of the other party and the essential ordination of marriage to bonum coniugum. Can. 1097 § 2 determines nullity only if the intellectual element – that is, the state of error – is added to the volitional element. However, from a personalistic point of view wanting a quality «before» the person themself (even in the absence of the error) means exploting the latter: this is incongruent with the free-will nature of marriage consent.

It remains to be determined when this inconsistency is so radical to result in nullity. Such an issue is addressed by distinguishing two hypotheses, depending on the intensity of the will directed towards the quality. The second part of the commentary is dedicated to retracing the logical argument of the in-facto section of the decision, in relation to both grounds of nullity (cann. 1097 § 2, 1098). By overturning the decision of first instance, it is highlighted that it is not proven that the man, while wishing to have children, had wanted to marry a fertile woman directly and principally; it is not also proved that the respondent was certainly sterile at the moment of the wedding, thus also missing the second requirement of can. 1097 § 2. This evidently led the Panel to conclude negatively also for the malicious error.