ABSTRACT

The Coram Salvatori ruling of 15 March 2023 addresses the issue of lack of internal freedom as a possible ground for marriage annulment, according to can. 1095, 2° C.I.C. and the probative value of expert evidence in such cases. The Rota's ruling examines a case in which nullity had been declared in the first instance due to a lack of discretion caused by a defect of internal freedom, but without recourse to expert evidence. The Rota, noting this procedural shortcoming, referred the case back for ordinary examination. The note analyses whether the defect of internal freedom can be considered an autonomous ground for nullity, clarifying that it falls within the defect of discretion of judgment that arises when the decision to contract marriage is coerced by irresistible internal impulses, which must, however, be rooted in some psychological anomaly, thus distinguishing itself from similar grounds for nullity such as metus ab intrinseco or mere feelings of guilt. The Rota's ruling criticizes the practice of some courts, such as those in the United States, of issuing affirmative judgments based on incomplete investigations lacking expert evidence. In the appeal proceedings, the Rota ordered an expert opinion super actis, a practice sometimes adopted for reasons of procedural economy, but of lesser probative value than an expert opinion super persona. In the specific case, the lack of substance of the documents prevented the expert from reaching moral certainty, and the judgment in question denied the declaration of nullity precisely because of the uncertainty arising from the absence of a direct expert examination of the plaintiff. This decision was taken in application of the principle of favor matrimonii. It has been observed that a failure to declare nullity due to the lack of the necessary moral certainty, while respecting the principle of favor matrimonii, may potentially conflict with favor veritatis and, above all, with the salus animarum of the parties. In similar cases, it would be desirable to make every possible attempt to fill the gaps in the investigation, perhaps by issuing a letter rogatory requesting the court with territorial jurisdiction to appoint a local expert to carry out a super persona examination.