Declaration Of Matrimonial Nullity
By DON FIER
Last week, we saw that the Church teaches that certain conditions must be fulfilled for valid reception of the Sacrament of Holy Matrimony.
As summarized by Fr. John A. Hardon, SJ, “to receive the Sacrament of Matrimony, a man and woman must both be baptized. They must be free to marry and to express their mutual consent. This means they are under no constraint, nor impeded by any natural or ecclesiastical law. The exchange of consent brings their marriage into being. Natural intercourse after marriage consummates their union and makes it indissoluble” (The Faith, p. 138; cf. Catechism of the Catholic Church [CCC], nn. 1625-1628).
Thus, a valid act of marrying requires that both parties have sufficient capacity to enter into marriage and that they mutually and adequately exchange their consent, for consent is “the indispensable element that ‘makes the marriage’ (1983 Code of Canon Law [CIC], canon 1057 § 1)” (CCC, n. 1626). For a Catholic to validly enter into marriage, proper canonical form is a third requirement. With regard to capacity, “diriment impediments” may disqualify a person from contracting marriage validly (an exhaustive list along with explanations is given in the Code in canons 1083-1094).
Natural law impediments, as explained last week, apply to all persons and cannot be dispensed; however, a dispensation may be granted at the discretion of the proper ecclesiastical authority for impediments that arise from ecclesiastical laws.
Last week’s column ended by introducing the topic of “declaration of matrimonial nullity.” Commonly but incorrectly referred to as an “annulment,” this is “an official determination by an ecclesiastical tribunal that what appeared to be a valid marriage was actually not one” (Dr. Edward Peters, JD/JCD, Annulments and the Catholic Church [ACC], p. 1).
The term annulment does not even appear in either the Catechism or the Code as it implies that a once valid marriage has been made null and void (as opposed to the determination that a true marriage did not exist from the beginning).
Indeed, the Church does not have the power to dissolve a valid, sacramental marriage which has been consummated, for as Sacred Scripture says: “What therefore God has joined together, let not man put asunder” (Mark 10:9).
A finding by the ecclesiastical tribunal, then, that either party lacked the capacity to enter into a valid marriage on the day of the wedding could be grounds for a declaration of nullity. The second criterion, freely given consent, requires the combined operations of the cognitive, deliberative, and volitional faculties. In other words, both parties must be able to both critically evaluate and to freely and wholly choose to enter into marriage with the intended spouse. Just as for capacity, the 1983 Code lists and explains elements that can impede valid consent — they are enumerated in canons 1095-1103.
In his article entitled “Marriage Law Revisited” (MLR), Dr. Benedict Nguyen, JD/JCL, provides a brief summary of these elements: insufficient use of reason; grave defect of discretion of judgment concerning matrimonial rights and duties; psychic inability to assume the obligations of marriage; error of person (i.e., mistakenly marrying an unintended person); error of quality of the person principally intended; malicious deceit perpetrated to obtain consent; error of law determining the will; total simulation of marriage consent (i.e., marriage itself is not desired); partial simulation of marriage consent (i.e., having an active intention against children, fidelity, permanence, or the good of the spouse in this particular marriage); and marrying under condition, force, or grave fear (cf. Adoremus Bulletin; volume XXI, n. 6; March 2016; p. 8).
Each of these elements has various accompanying requirements that must be evaluated by the tribunal.
The third element for the validity of marriage for Catholics — that the wedding must proceed according to canonical form — has been required since the time of the Council of Trent. “Latin Catholic canonical form,” explains Dr. Nguyen, “requires that a Latin Catholic marry in the active presence of a validly deputed Catholic minister with faculty or permission to do so, who actively asks for and receives the consent of the parties in the name of the Church, and in the presence of two witnesses (cf. CIC, canons 1108 and 1116)” (MLR, p. 8).
Canonical form “must be observed if at least one of the parties contracting the marriage was baptized in the Catholic Church or received into it” (CIC, canon 1117).
In some cases, this requirement can be dispensed by proper ecclesiastical authority. For example, a Catholic may seek and obtain, from his diocesan bishop, a dispensation into enter a valid (but non-sacramental) marriage with a non-Christian spouse. Without this dispensation, the marriage would be invalid (cf. CIC, canon 1086 §§ 1-2).
Why does the Catholic Church consider canonical form to be so important? “Several factors converge,” says the Catechism, “to explain this requirement” (CCC, n. 1631). First, sacramental marriage is a liturgical act (as are all the sacraments) and it is most fitting that it be celebrated in the public liturgy of the Church.
Second, the couple is introduced by the sacrament into an ecclesial order — rights and duties between the Church and the spouses (and any children who may become the fruit of their marriage) are created.
Third, having witnesses in a public liturgical setting lends certainty to the reality that marriage is a valued state of life in the Church. Finally, the mutually expressed “I do” in the presence of the congregation is a great aid in helping the newly married couple to remain faithful to their wedding vows “for better, for worse, for richer, for poorer, in sickness and in health, until death do [they] part.”
Let us now look at an example, the proverbial “shotgun wedding,” which is illustrative of a case where all three conditions for a valid marriage are possibly violated. “Suppose a fifteen-year-old Catholic boy,” writes Dr. Peters, “is forced at gunpoint to marry a fifteen-year-old Catholic girl before the justice of the peace” (ACC, p. 56).
First, since a man must have completed his sixteenth year of life before marrying (cf. CIC, canon 1083 § 1), the boy lacks the capacity to marry. Second, the boy is being forced to marry under fear and duress which means that freely expressed consent may be lacking, a violation of canon 1103. Third, both the boy and the girl are attempting marriage with complete lack of canonical form, a violation of canons 1108 and 1117.
Moreover, under canon 1095 § 2, it could be argued they were unable to exercise adequate discretion of judgment before entering into marriage.
A declaration of nullity is an extremely important decision for an ecclesiastical court — a very careful and thorough examination must be completed before the court can reach that decision. All that is possible must be done to ensure that no valid marriage is declared null and void by mistake, for the salvation of souls is at stake.
Of utmost importance to keep in mind is that the investigation must have only one goal in mind — to ascertain if what appeared to be a valid marriage was actually not one. Its purpose is not to decide if the couple never really loved each other, nor to cast blame on either or both parties. “Every canonical case is designed to identify the truth of the matter,” says Dr. Peters, “not to grant victory to one or the other party” (ACC, p. 72). Its sole purpose is to determine if capacity, consent, or canonical form was lacking or defective at the time of the wedding.
Moreover, the Church clearly teaches that “marriage possesses the favor of law; therefore, in a case of doubt, the validity of a marriage must be upheld until the contrary is proven” (CIC, canon 1060). In other words, both parties must consider their marriage to be valid until the contrary is declared — neither person should engage in dating or courtship with someone else or consider another marital union in the meantime.
Even if the couple has been granted a civil divorce, it does not change their status as husband and wife as married persons before God; the Church is the only authority that can declare that an apparent marriage was invalid from the beginning.
Based On Truth
What level of certainty is required for a marriage tribunal to grant a declaration of nullity? In canon law matters, “for the pronouncement of any sentence, the judge must have moral certitude about the matter to be decided by the sentence” (CIC, canon 1608 § 1).
Although not precisely the same, Dr. Peters indicates this bears a similarity to the civil law standard of “beyond a reasonable doubt” (cf. ACC, p. 103). He goes on to state that “canon 1068 means that it is not enough to show that marriage could have been null or even that it was more likely null than not. Instead the judges must be deeply assured that nullity has been proven in accord with the requirements of canon law” (ibid.).
Canon 1068 § 4 goes on to state that “a judge who was not able to arrive at this certitude is to pronounce that the right of the petitioner is not established.” In other words, if it has not been demonstrated to the judges with moral certitude that a marriage did not exist from the beginning, no matter how they feel about the parties or their situations, the presumption of validity must be upheld, for “it can only be an instrument of mercy insofar as it is based on truth” (MLR, p. 7).
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(Don Fier serves on the board of directors for The Catholic Servant, a Minneapolis-based monthly publication. He and his wife are the parents of seven children. Fier is a 2009 graduate of Ave Maria University’s Institute for Pastoral Theology. He is a Consecrated Marian Catechist.)
