MARRIAGE AND MARRIAGE NULLITIES:
PHILOSOPHICAL FOUNDATIONS & PASTORAL CONCERNS
by Fr. Jaime B. Achacoso, J.C.D
Marriage is a Natural Institution
In the past two decades, there have been repeated attempts to pass a divorce law in the Philippines, defeated repeatedly as well, thanks in no mean measure to the efforts of the Catholic Church (allied with our Muslim brothers). In Europe and North America, on the other hand, the legislative agenda had moved on to greater depths of depravity with the passage of same-sex unions (which we should never call marriage). The fundamental error in both legislative moves is the failure to realize that marriage is a natural institution — its nature, essential properties and ends form part of human nature — of which man is not the author and which therefore no piece of legislation can alter. It is only up to man to use his reason to understand the intrinsic reality of marriage and to act accordingly.
St.John Paul II explained this point very well in his annual address to the Roman Rota on 1.II.2001 when he said: Many misunderstandings have beset the very idea of “nature”. The metaphysical concept (…) has been particularly neglected. There is a tendency to reduce what is specifically human to the cultural sphere, claiming a completely autonomous creativity and efficacy for the person at both the individual and social levels. From this viewpoint, the natural is merely a physical, biological and sociological datum to be technologically manipulated according to one’s own interests.
This opposition between culture and nature deprives culture of any objective foundation, leaving it at the mercy of will and power. This can be seen very clearly in the current attempts to present de facto unions, including those of homosexuals, as comparable to marriage, whose natural character is precisely denied.
When the Church teaches that marriage is a natural reality, she is proposing a truth evinced by reason for the good of the couple and of society, and confirmed by the revelation of Our Lord, who closely and explicitly relates the marital union to the “beginning” (Mt 19: 4-8) spoken of in the Book of Genesis: “male and female he created them” (Gen 1: 27), and “the two shall become one flesh” (Gen 2: 24).
Marriage has Natural Ends and Essential Properties
Canon Law, respecting the natural order, has expressed the ends and properties of mar- riage as a natural institution in the following terms:
Can. 1055 — §1. The matrimonial covenant, by which a man and a woman establish be- tween themselves a partnership of the whole life, is by its nature ordered toward the good of the spouses and the procreation and education of offspring; this covenant between baptized persons has been raised by Christ the Lord to the dignity of a sacrament.
Can. 1056 — The essential properties of marriage are unity and indissolubility, which in Christian marriage obtains a special firmness in virtue of the sacrament.
In short, by nature marriage is a covenant between a man and a woman, setting up a partnership involving their whole lives—to the point that they become “two lives in one”—aimed of its nature towards a double end: the full personal development of the spouses and the procreation and education of the children who may result. It is in function of this two-fold end that the essential properties of marriage follow: unity (monogamy) and indissolubility (till death of one of the spouses).
The Marriage of Catholics
It is this natural institution of marriage, which has been raised by Christ the Lord to the dignity of a sacrament, making of it therefore a visible sign for him to bestow his grace on the baptized, who contract the marriage covenant. It is as if, in order to enable fallen man and woman to fully live the total life project of the marriage covenant that God wanted to be part of such a project, such that through the grace of the sacrament, in Christian marriage the essential properties of unity and indissolubility obtain a special firmness.
However, once Christ raised the natural institution of marriage to the dignity of a sacra- ment for the baptized, the two aspects—sacramentality and natural institution—have become in- separable. As c.1055, §2 solemnly declares: For this reason a matrimonial contract cannot validly exist between baptized persons unless it is also a sacrament by that fact.
What this means is that for a Catholic to be married validly in the eyes of God, he or she has to be married sacramentally (“in Church”). This is expressed clearly by c.1059: Even if only one party is baptized, the marriage of Catholics is regulated not only by divine law but also by canon law, with due regard for the competence of civil authority concerning the merely civil effects of such a marriage.
In other words, getting married only civilly is not enough for a Catholic, even if in practice — in most Catholic countries, like the Philippines — a Church wedding carries with it automatically also a civil wedding: the papers signed at the end of the Church ceremony are not Church papers but the pro-forma Marriage Contract from City Hall. In effect, what happens is that by mutual agreement between Church and State, the State empowers the solemnizing priest to act as its solemnizing officer — a role played by the Judge or another public official in a simply civil marriage — to witness the Marriage Contract involving a Catholic spouse(s). Thus, not just any Catholic priest can officiate a marriage, but one who has the license to solemnize marriages, duly registered in the proper government office.
We now have to clarify the meaning of the so-called declaration of marriage nullity in the Catholic Church — which is not a Catholic Church-style marriage annulment. We start by under- standing the juridic (canonical) constitution of marriage. How does a Catholic Church (or canonical) marriage come about? For brevity, we shall simply write marriage when we really mean Catholic or canonical marriage.
Marriage stands on 3 Pillars
Three elements are necessary for marriage to come about: (1) the capacity to marry in both contracting parties, (2) the mutual consent of the contracting parties to enter into marriage, and (3) the observance of the canonical form of marriage. If any of these three elements is lacking — even if this fact is proven only afterwards, precisely through a judicial process — then a competent Church tribunal can declare that a hitherto accepted marriage (technically called a putative marriage, from the Latin putare = to think) was void from the very beginning. In short, there is nothing to annul, but rather the nullity of the marriage is declared.
A valid and consummated marriage cannot be dissolved (annulled) by any human power or for any reason other than death (c.1141). Strictly speaking—except in the case of a non-consummated marriage, which the Roman Pontiff may dissolve for a just cause — there is no such thing as marriage annulment in the Catholic Church.
Declaration of Marriage Nullity
What happens in a declaration of marriage nullity is that after a marriage has been celebrated—sometimes even many years afterwards — it is shown before a competent Church tribunal that one or more of the three constitutive elements of marriage was either not present or gravely defective such that the marriage in question was not constituted after all. Hence, the tribunal declares (juridically) the nullity of a hitherto considered marriage.
Since what is being impugned is the coming about of a valid marriage, the evidence to be adduced in the judicial process should be those that prove the non-existence of any one of the above-mentioned constitutive elements of a valid marriage at the time of the said marriage. Whatever facts arise after the wedding only has validity to the marriage nullity process insofar as they prove the non-existence of any of the above-mentioned elements at the time of the wedding. Let us discuss the three constitutive elements one by one.
What happens to children born of a marriage that is subsequently declared null? As an affirmation of the dignity of the human person and the innocence of the offspring from an invalid marriage, Canon Law creates a fiction — technically referred to as a fictio iuris — whereby such children are considered legitimate.
Considering the grave repercussions of an invalid marriage, it is a grave pastoral duty of the pastors of souls (bishops and parish priests) to make sure that all the elements necessary for a valid marriage are present before solemnizing a marriage in Church.
The Capacity to Contract Marriage
All human beings are — by nature—capable of contracting marriage. Hence, the right to contract marriage—technically called the ius connubi—is a fundamental right of all the Catholic faithful, protected by Canon Law (c.1058). Only the Supreme Legislator can establish limitations to this right—technically called diriments impediments — in accord with Natural Law and in order to protect the common good of the Church (c.1075). As in all limitation of rights, such impediments are necessarily very few, and unless explicitly stated or reserved to the Holy See, can be dispensed by the Local Ordinary for his own subjects wherever they may be and for all other persons actually present in his own territory (c.1078, §1). Very briefly, these impediments are:
- Age (c.1083): The Code of Canon Law has established that a man cannot validly contract marriage before he has completed his 16th year, and likewise a woman before her 14th year. However, it is within the power of individual bishops’ conferences to establish an older minimum age. In the Philippines, the CBCP has established 18 years as the minimum age for both men and women. For example, if man can prove that he was only 17 years and 11 months old when he got married in Church, he can contest the validity of that marriage on the ground of lack of age.
- Impotence (c.1084): Inability to have marital intercourse—whether on the part of the woman or on the part of the man—which is antecedent to the marriage (present even be- fore the marriage) and perpetual in nature (i.e., not just transitory), whether relative (just with this partner) or absolute (with any partner) of its very nature invalidates a marriage. Sterility (the inability to cause conception) neither prohibits nor invalidates marriage, unless such fact was concealed fraudulently to obtain consent (c.1098). For example, if a woman can prove that her husband had not been able to consummate their marriage from their marriage night and thereafter, she can sue for nullity based on impotence of her hus- band; but not if such impotence only arose afterwards. This impediment cannot be dispensed, since the marital union belongs to the very nature of marriage.
- Bond of prior marriage (c.1085): A person who is held to the bond of a prior marriage, even if it has not been consummated, cannot validly contract another marriage. Furthermore, even if a prior marriage were to be deemed invalid, it is not licit for a person to contract another marriage until the nullity of the prior marriage has been legitimately declared. This impediment cannot be dispensed, since that would violate one of the essential properties of marriage which is monogamy.
- Disparity of cult (c.1086): A Catholic, who has not left the Church by means of a formal act, cannot validly marry a non-baptized person. This impediment can be dispensed by the local Ordinary if there is reasonable cause, provided the following conditions are ful- filled: (c.1125)
1° the Catholic party declares that he/she is prepared to remove any danger of fall- ing away from the faith and makes a sincere promise to do all in his/her power to have all the children baptized and brought up in the Catholic Church;
2° the non-baptized party should be informed at an appropriate time of the prom- ises which the Catholic party has to make, and is not opposed to them;
3° both parties should be instructed on the essential ends and properties of mar- riage, which both parties must agree to.
- Bond of Holy Orders (c.1087): A person who is in Holy Orders cannot validly contract marriage. Such a bond ceases when a priest is reduced to the lay state and dispensed from the promise of celibacy—and such dispensation is reserved to the Holy See.
- Bond of Religion (c.1088): A person who is bound by a public perpetual vow of chastity in a religious institute cannot validly contract marriage. This impediment can be dis- pensed by the Local Ordinary, unless the religious institute in question is of pontifical right, in which case it can only be dispensed by the Holy See (c.1078, §2).
- Kidnap (c.1089): A woman who has been abducted or detained for the purpose of con- tracting marriage with her cannot validly contract marriage, unless the woman—after she has been separated from her abductor and established in a place where she is safe and free—of her own accord still chooses to contract marriage. Even if the woman were to freely give marital consent in a situation of abduction or detention perpetrated to obtain such consent (e.g., she really fell in love with her abductor), the Law itself invalidates her consent. This provision only applies to women.
- Crime (c.1090): A person who for the purpose of contracting marriage with another person has brought about the death of that person’s spouse or one’s own spouse cannot validly contract marriage. Likewise, two persons — who have brought about the death of the spouse of one of them through mutual physical or moral cooperation — cannot validly contract marriage with each other. This impediment can only be dispensed by the Apostolic See (c.1078, §2).
- Consanguinity (c.1091): Two persons related by blood within a certain degree of proximity cannot validly contract marriage as follows:
— All degrees in the direct line — i.e., between all ancestors and descendants — whether they be related legitimately or only naturally;
— Up to the 4th degree in the collateral line — i.e., a marriage would be invalid between 1st cousins, and also between nephew and aunt or between niece and uncle, but valid be- tween 2nd cousins. This can be dispensed up to the 3rd degree (thus 1st cousins, or aunt and nephew or uncle and niece), but never the 2nd degree (never between siblings) (c.1078, §3).
- Affinity (c.1092): This refers to the relationship between a person and the blood relatives of his/her spouse—i.e., his in-laws. A person is impeded from contracting a valid mar- riage with the blood relatives in the direct line—i.e., parents and children (from a previ- ous union) of his/her deceased spouse. There is no impediment regarding relatives in the collateral line (siblings, cousins, etc.) of one’s deceased spouse, the reason being many times they constitute the best candidate to take over the role of one’s deceased spouse, especially as regards the orphaned children.
- Public Propriety (c.1093): This impediment invalidates a marriage between a person and the blood relatives in the 1st degree of the direct line (parent or child) of his/her common- law partner or publicly-known live-in partner.
- Adoption (c.1094): Marriage is invalid between persons who are related in any degree in the direct line (parents and children) or in the 2nd degree of the collateral line (step- brothers and step-sisters) by legal adoption.
Can. 1057 — §1. Marriage is brought about through the consent of the parties, legitimately manifested between persons who are capable according to law of giving consent; no human power can replace this consent.
§2. 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 in order to establish marriage.
Provided the first constitutive element of marriage is present—i.e., the capacity of both parties to contract marriage—the second and most important constitutive element of marriage is the consent of both parties to contract marriage. As the classic formula states: Consent brings about marriage.
No human power can replace this consent — continues the canon. Thus, if subsequent to the wedding — even many years afterwards — it can be proven in court that the consent (expressed at the time of the wedding) was defective to the point of invalidity, then the competent Church tribunal can declare that the marriage was null and void from the beginning.
What can vitiate consent to the point of making it invalid, such that the marriage contracted is null and void from the start? Simply stated, valid matrimonial consent is a human act that needs the intervention of both intellect and will — the intellect to know the true nature of the marriage institution and its sacramentality, with the discretion to know what this person and marriage to this person means; and the free will to want to contract marriage with this person here and now. Canon Law has further broken down this constitutive element into different aspects, reflecting the reality that the human act of consenting implies several things.
The Intellectual Component of Matrimonial Consent
While the act of consenting is one — i.e., it is the whole person who consents — one can analyze that act and identify predominantly intellectual components in the one hand, and a pre- dominantly volitive (pertaining to the will or voluntas in Latin) component in the other. Such a division is even pedagogically helpful. Canon Law has established the following factors that can vitiate the intellectual components of consent to the point of invalidating them:
- Lack of sufficient use of reason—either habitual (e.g., intellectual retardation) or tempo- rary (e.g., influence of drugs or alcohol at the moment of giving consent)—invalidates consent (c.1095, 1°).
- Grave lack of discretion of judgment concerning the essential matrimonial rights and du- ties, which are to be mutually given and accepted in marriage, invalidates consent (c.1095, 2°). Lack of due discretion (LDD) is one of the most common grounds of mar- riage nullity, and together with the so-called psychological incapacity is the most abused as well.
- Incapacity to assume the essential obligations of marriage, due to causes of a psychic nature, invalidates the consent (c.1095, 3°). This has been erroneously labeled— especially in the civil courts—as psychological incapacity, causing a misunderstanding of the real ground of nullity and the object of proof. Simply put, one cannot validly assume an obligation which he is incapable of fulfilling. Since marriage is a natural institution (in fact all normal human beings even have a right to contract marriage), what c.1095, 3° simply states is that such incapacity to assume the essential obligations of marriage can only be due to reasons of a psychic nature. But not all psychic disorders cause such incapacity. What constitutes the ground for consensual invalidity—and what needs to be proven in court—is not so much the existence of a psychic abnormality but rather the in- capacity to assume the essential obligations of marriage.
- Ignorance of the procreative and sexual aspects of marriage —i.e., that marriage is a permanent consortium between a man and a woman, which is ordered toward the pro- creation of offspring by means of some sexual cooperation—invalidates consent (c.1096, §1). Such ignorance is not presumed after puberty (c.1096, §2).
- Error concerning the person — i.e., his or her identity—invalidates consent (c.1097, §1). One can’t get married to the wrong person. However, error concerning a quality of the person, even if such an error is the cause of consenting to marriage, does not invalidate the marriage, unless such quality was directly and principally intended (c.1097, §2). A woman who married a man, because she erroneously thought he was very rich, cannot sue for nullity afterwards; unless she married him precisely and principally for that.
- Error concerning the essential properties of marriage — i.e., unity, indissolubility and sacramental dignity—does not vitiate matrimonial consent, provided it does not deter- mine the will (c.1098). Such error is similar to the error regarding a quality of the person: it does not really invalidate the consent unless it was determinant of the will—i.e., one would not have consented to marriage had he/she known of such quality of the person or of marriage.
- Fraud concerning some quality of the other party which of its nature can seriously disturb the partnership of conjugal life, perpetrated to obtain consent, invalidates such con- sent (c.1098). Examples of such qualities which of their nature can seriously disturb conjugal life are drug addiction, homosexuality or a peculiar professional lifestyle.
- A condition concerning the future — e.g., “I marry you provided you pass your medical board exams by the time I give birth to our first child” — invalidates consent (c.1102, §1). The reason is that the condition on which the reality of the marriage rests is not yet there, so the marriage cannot come about either. On the other hand, a marriage based on condition concerning the past or the present is valid or invalid insofar as the subject matter of the condition exists or not (c.1102, §2) — i.e., “I marry you provided you really are a virgin as you claim”. However, the Law also states that it is not licit to put such condition of the past or present without the written permission of the local Ordinary (c.1102, §3).
Volitive Component of Consent
Can. 1103 — A marriage is invalid if it is entered into due to force or grave fear inflicted from outside the person, even when inflicted unintentionally, which is of such type that the per- son is compelled to choose marriage in order to be freed from it.
There must be free will in consenting to marriage. There is no free will when there is external force (violence), or grave fear inflicted (even unintentionally) from outside the person— i.e., the trepidation of the mind in the presence of an impending evil (physical or moral) that compels the person to consent to a marriage in order to escape such evil.
Examples of such perceived impending evils that can cause fear are a threat of bodily harm (e.g., shotgun marriage), threat of shame (e.g., pregnancy due to a premarital sexual relation), or even the threat of displeasing a person or persons that one holds in high esteem (the so- called reverential fear), as when parents have arranged a marriage. If it is proven in court that such threats caused such trepidation of mind so as to consent to a marriage that otherwise wouldn’t have been consented to, the court can declare the marriage invalid for lack of consent.
The Canonical Form of the Celebration of Marriage
Three reasons made the establishment of a juridic substantial form—i.e., a set of external and verifiable circumstances as requirements for the substantial and juridic validity of matrimo- nial consent—necessary:
1) to make the coming about of a given marriage public within the ecclesial community—i.e., since the couple would henceforth live as husband and wife in the midst of that community;
2) to make the expression of matrimonial consent verifiable with certainty—i.e., by providing for witnesses who could attest to the manifestation of such consent by the contracting parties;
3) to safeguard the specific content of canonical marriage—i.e., by making the presence of the qualified witness depend on his moral certainty that all other canonical requirements for marriage have been fulfilled.
Thus, the configuration of canonical marriage as a formal juridic act (aside from being a consensual act) has been a constant principle in Church law since the Council of Trent established it in 1563. The present Code of Canon Law summarizes this canonical form of Marriage in the following terms:
Can. 1108 — §1. Only those marriages are valid which are contracted in the presence of the local ordinary, or the pastor, or a priest or deacon delegated by either of them, and in the presence of two witnesses, according to the rules expressed in the following canons, with due re- gard for the exceptions mentioned in cc.144, 1112,§1, and 1127,§§2 and 3.
§2. The one assisting at a marriage is understood to be only that person who, pre- sent at the ceremony, asks for the contractants’ manifestation of consent and receives it in the name of the Church.
In simple terms, what the canonical form of marriage means is that for marriage to valid- ly come about, the following formal requirements must be present in the actual marriage cere- mony.
1st: The Bride and Groom — in Person or by legitimate Proxy.
Can. 1104 — §1. In order for marriage to be contracted validly, it is necessary that the contracting parties be present together, either in person or by proxy.
§2. Those to be married are to express their matrimonial consent in words; how- ever, if they cannot speak, they are to express it by equivalent signs.
Although this is not usually discussed under the heading of the canonical form—usually forming part of the issue of consent—I find it pedagogically better to deal with it here. In fact the configuration of the canonical form as the substantial juridic form of Catholic marriage is a function of the need to provide witness to the expression of mutual consent by the contracting parties. Thus, their physical presence at the wedding is normally presumed.
What could be a novelty for most Catholics is the provision in Canon Law for either or both of the contracting parties to be represented by legitimate proxy. Canon Law regulates this matter in great detail:
Can. 1105 — §1. In order for marriage to be entered validly by proxy, it is required that: 1° there is a special mandate to contract marriage with a certain person; 2° the proxy is appointed by the person who gave the mandate and that the proxy fulfill this function in person (i.e., the proxy cannot appoint another proxy).
§2. To be valid a mandate must be signed by the person who gave it, as well as by the Pastor (i.e., parish priest) or the Local Ordinary where the mandate was issued, or by a priest delegated by either of these, or at least by two witnesses; or it must be arranged by means of a document which is authentic according to civil law (i.e., duly notarized).
§3. If the person giving the mandate cannot write, this is to be noted in the mandate itself and another witness is to be added who must also sign the document; otherwise, the mandate is invalid.
§4. If the person who gave the mandate revokes it or becomes insane before the proxy has contracted marriage in that person’s name, the marriage is invalid, even though either the proxy or the other contracting party was unaware of these developments.
2nd: A Qualified Witness — to ask for the Consent in the name of the Church.
The Code enumerates who can act as the qualified witness:
Can. 1109 — …within the confines of their territory, the Local Ordinary and the Pastor (parish priest) in virtue of their office, validly assist at the marriages of their subjects as well as of non-subjects provided one of the contractants is of the Latin rite. Thus, the Bishop of the Diocese (in his whole diocese) and the Parish Priest (in his parish) is a qualified witness for marriage.
Can. 1110 — In virtue of their office and within the limits of their jurisdiction, an Ordinary and a Personal Pastor validly assist only at marriages involving at least one of their subjects. Thus, a Bishop (not the Bishop of the Diocese) can validly assist if one of the parties comes from his own diocese; likewise a Military Chaplain can validly assist if one of the parties belongs to the Military Ordinariate.
Can. 1111 — §1. …the Local Ordinary and the Pastor can delegate to priests and dea- cons the faculty, even a general one (i.e., not just for a specific marriage), to assist at marriages within the limits of their territory. This is the usual case in a big place like Metro Manila, where people get married at the church of their choice (not their own parishes). Every time a couple get married outside of their parish, the Parish Priest of the church where the marriage is celebrated either assists at the marriage or delegates another priest to do so (usually the priest of choice of the couple).
§2. To be valid the delegation of the faculty to assist at marriages must be given expressly to specified persons (e.g., if the couple brings their own priest, he must be identified beforehand and his credentials verified.); if it is a question of a special delegation, it is to be granted for a specific marriage; however, if it is a question of a general delegation, it is to be granted in writing.
3rd: Two Other Witnesses — also called Common Witnesses.
The Code does not stipulate any requirement. Hence, we can presume the common doctrinal and jurisprudential criteria of: (1) use of reason, and (2) the capacity to perceive the marriage they are witnessing. In sum, the common witnesses should be able to testify regarding the celebration of marriage, especially regarding the exchange of matrimonial consent.
Thus, more than godparents (a common term in the Philippines) we are dealing with simple witnesses, whose only juridic obligation is to be ready to testify that the marriage took place. They don’t even have a moral obligation to assist the new couple to live up to their com- mitments—which is what the word sponsors (another common term in the Philippines) implies.