DECLARATION OF NULLITY

 

 

In a time where divorce is the tragic outcome of approximately one out of every two marriages, the Church has been approached by many who wish to investigate, or challenge, the validity of such marriages—in short, to “seek an annulment”. But, what exactly is an “annulment”? This article will answer that question as well as explain in a concise and simple manner all that is involved in the process.

 

Part I: Basic Questions and Answers

 

What is meant by the word “annulment”?

 

It is interesting to note that the term “annulment” is nowhere defined in the Code of Canon Law, and in fact, is never even used. The proper and more accurate term for an “annulment” is a “declaration of matrimonial nullity.” Such a declaration is granted by an ecclesiastical tribunal. Although there is not an official definition of a declaration of matrimonial nullity, it means that what appeared to be, from one or more points of view, a valid marriage, was actually not one.

 

An annulment has nothing to do about who is to blame for the civil dissolution of the marriage. It is, rather, a juridical decision that states that one or both of the parties did not give adequate consent in their attempt to contract a valid matrimonial bond as the Catholic Church understands and proclaims it. A Declaration of Nullity can also be granted if at least one of the partners is Catholic and did not follow the canonical form required for a valid marriage.

 

The purpose of the annulment process is to uphold and protect the dignity of the sacrament of Holy Matrimony. It is imperative to understand that the Catholic Church always presumes the validity of any and all marriages submitted for investigation. Therefore, the Church will not construct a case in order to reach an affirmative decision.

 

By “marital consent,” we mean the human act whereby two spouses mutually accept each other into a covenantal union in which they establish a communion of the whole life, and is by its nature ordered toward the good of the spouses and procreation and education of offspring[1]. This marriage covenant is indissoluble and endures until death. These aspects were already explained in the previous two articles on “The Theology of the Sacrament of Marriage” and the “The Teaching of the Catholic Church on divorce”.

 

 

Why would I need an annulment if I have already divorced civilly?

 

Marriage is a union—not a contract—made by God, not by man. Therefore, no civil institution has the power to dissolve what God has joined. The civil dissolution only deals with the civil aspects of the marriage: finances, assets, custody of children, etc. A declaration of nullity declares that a covenantal union never existed in the first place. Civil divorce is indicative only of a marriage that has failed, which is not the same as an invalid marriage.

 

If someone who is divorced wanted to re-marry, then it must be proven that his/her previous attempt at marriage lacked a valid consent according to the understanding and teaching of the Catholic Church. Once again, the Church always presumes the validity of any marriage until that validity is challenged and proven null within the ecclesiastical forum. It is important to add, therefore, that one must not plan any future marriage until the judges have rendered an affirmative decision and that decision has been ratified by the court of Second Instance (also known as the appellate court). There is, however, never a guarantee of an affirmative decision. Therefore, one should not be contemplating a future marriage unless they are truly free to marry. If someone were contemplating a future marriage while petitioning for an annulment, then that would clearly indicate that he/she does not understand or believe the Church’s understanding of marriage as an indissoluble bond until death. Only when a declaration of nullity has been given can one consider himself/herself free to marry.

 

This question is also discussed in depth in the two previous articles pertaining to the theology of marriage and the Church’s teaching on divorce.

 

An opportunity for Spiritual Healing

 

Many who have completed the annulment process have found it a means of emotional healing. For many, revisiting past bad memories is often a painful experience. However, through a thorough review of their lives and the events leading up to and including their marriage, many have discovered things about themselves that they may have never known had they not been required to examine. Many of the questions in the formal petition help the parties examine closely their personal histories and their thought processes. For others, completing the formal petition has helped deepen their understanding of marriage in ways they never considered. Many have said that had they thought of all the things the formal petition covers before they married, they either would have waited longer to marry or not marry at all. If an affirmative decision is reached in the case, and that person chooses to marry in the Catholic Church in the future, then he/she is highly unlikely to make the same critical mistakes in their behavior or in his/her choosing of a spouse for life.

There are many who found the process serves as a means of reconciliation with their spouse and as a way to “bring closure” to a very difficult time in their life, regardless of the outcome of the case. What often begins with pain, by digging into painful memories, often ends with a life-changing reconciliation. The pastoral and prayerful assistance of your advocate and the Tribunal are there to help make your walk through the annulment process a peaceful one.

 

Who reads all the testimony submitted to the Tribunal?

 

All testimony shared within the marriage trial is held strictly confidential among the court officials. Witnesses are not permitted to share any of the testimony they have submitted to the court, nor are they permitted to speak about the dynamics of the case with either the Petitioner or Respondent. Once all the testimony has been presented to the court and is sufficient for the judges to render a decision, only the main parties of the Petitioner and Respondent, with their respective advocates, are allowed to review all the testimony gathered by the court. Only those testimonies deemed by the court to be confidential for serious reasons will be withheld from one or both parties.

 

How long does it take for a case to be processed?

 

Each case varies in the amount of time it takes to be processed. The average time in the Archdiocese of Denver is approximately six months to one year provided there are no significant obstacles that may slow a case down.

 

What are some of these obstacles?

 

Almost every obstacle arises from a lack of cooperation with the directives given by the court. Every request by the court must be attended to promptly or one risks his/her case being delayed. These directives include scheduling and completing a personal interview at the Tribunal, and scheduling and completing an interview with court-appointed experts (when necessary). Another significant obstacle is the lack of witness cooperation throughout the case.

 

Isn’t the annulment process expensive?

 

The Metropolitan Tribunal of the Archdiocese of Denver charges a processing fee of $450 per case. This fee, however, is only a fraction of all the expenses that go into the processing of a case. In comparison to the processing fees of most civil divorces, the processing fee for a petition of nullity is quite inexpensive. For those who are in financial difficulties, however, it is possible for a waiver of the fees to be granted. In such cases, the petitioner would be required to provide documentary evidence of his/her financial status to the Tribunal, and it will be given its due consideration.

 

Which tribunal should I approach?

 

This depends upon certain criteria listed in the Code of Canon Law (c. 1673). Once the Tribunal receives a Preliminary Questionnaire, it must determine whether the case falls under its jurisdiction before it can accept a case. The court contains legal competence to hear cases fulfilling one of the following criteria:

 

1.        When a marriage was celebrated inside the Archdiocese of Denver;

2.        The Respondent is domiciled (maintains a current legal address) in the Archdiocese of Denver;

3.        The Petitioner is domiciled in the Archdiocese of Denver—however, the Tribunal must receive permission from the diocese within which the Respondent is currently domiciled. In other words, unless the diocese of the Respondent grants legal competence to the Tribunal of the Petitioner’s domicile, then the Petitioner’s Tribunal does not have legal competence to hear the case.

4.        If it is the Tribunal which contains the greatest accumulation of proofs in order to try the case. This is an extraordinary condition of legal competence.

 

When a marriage was celebrated outside the Archdiocese of Denver and the Respondent is currently a resident outside the jurisdiction of the U.S. Episcopal Conference, additional conditions must be fulfilled before the Denver Tribunal may accept a petition for formal investigation. Petitioners are, therefore, informed that there is no guarantee that the Tribunal here will be legally competent to process a particular case. Your local parish priest will be able to help you in making the right decision.

 

“If the annulment is granted, does that vindicate the awful actions of my spouse that caused the divorce? How can the Church overlook/condone his/her behavior by granting an annulment?”

 

Regarding the first question, absolutely not--especially if they are the actions of the one petitioning for the annulment! The Church is sometimes accused of overlooking past immoral conduct when it declares a marriage null. It is quite clear that since the marriage ended in civil divorce, that something went tragically wrong. The annulment process, however, is primarily concerned with proving whether or not there was something fundamentally lacking in the consent of the married couple at the time of marriage contract—not with the event(s) which brought about the civil divorce. The court must be very careful to discern a marriage which ended due to a sinful act(s) (i.e. infidelity) versus an invalid consent, although there is sometimes a connection between them.

 

During the investigation of the courtship and marriage, certain facts may arise that point to serious problems in the habitual behavior of one or both parties. As a result, the court, by the ecclesiastical authority given it by the bishop, may impose a prohibition (vetitum) on one or both parties at the time an affirmative decision is granted. A prohibition is imposed only on those cases where there is serious doubt whether that person is currently capable or adequately disposed toward entering into a binding covenantal union according to the Church’s teachings on marriage. This would prohibit the party stated in the vetitum from marrying in the Catholic Church until the particular issue stated in the vetitum has been satisfactorily treated according to the wishes of the Tribunal. 

 

At times a recommendation (monitum) for counseling may be made by the Presiding Judge in First Instance (the tribunal which processes your formal petition). This recommendation may involve one or both of the parties. The recommendation is based on the hope that the person will pursue adequate counseling for the well being of all parties concerned in a subsequent marital relationship. It is the responsibility of the preparing minister of a subsequent marriage to ensure that whatever has been affixed to any party (monitum or vetitum) who has received a declaration of nullity by the Church be properly addressed.

 

The Church does not cast blame on one or both of the parties, even if they acted in a blameworthy manner. By issuing a declaration of nullity, the Church is stating that neither party is bound to accept the consequences of a valid marriage bond. The parties, therefore, are normally free to contract marriage in the Catholic Church. In other words, an annulment declares that what was believed to be a valid marriage is declared never to have been so in the first place.

 

There is also a misconception that should the Tribunal decide not to declare a marriage null, the Church is not forgiving or compassionate to the parties. The Church is then seen as passing judgment on the character of the parties, especially to whom the grounds of the case applied. This is simply not true and an unjust accusation against the Church because, as was stated already, the annulment process has to do exclusively with judgment upon the disposition of the parties at the time of marital consent. It is the duty of the civil divorce proceedings to place blame on one or both parties for the failure of the marriage.

 

Legitimacy of children

 

A common question for those going through the annulment process is: “If our marriage is declared null by the Church, does that mean our children from that union are illegitimate?” The answer to that question is, “No.” A declaration of nullity has no bearing on the legitimacy on any children born from the presumed valid union because the presumption of validity is always the position of the Church towards all marriages. The Church upholds the children of marriages where at least one of the partners believed, at the time of marital consent, that it was a real marriage. In addition, “legitimacy” is a civil term and thereby rendering all children born under a civil marriage legitimate.

 

 

Part II: The Juridical Process

 

Court Officials

 

Who’s Who in the Juridical Process

 

There is a misconception that the Tribunal officials are non-approachable and desire no further contact from those petitioning for an annulment once the process has begun. As this article has already illustrated, from the beginning of the process to its completion, there is both an Advocate from your parish and a Judicial Auditor who are always available to walk you through the process.

 

The Tribunal is comprised of various officials involved in the trial of all formal cases. Judges are appointed to office by the diocesan bishop[2], and they are assigned to specific cases by the judicial vicar[3] usually in the order the cases are presented.[4] The parties involved in the annulment process have the right to object to any of the officials appointed for the trial.[5] All objections are subject to the discretion of the Tribunal.

 

The Advocate

Every Petitioner is appointed an Advocate to assist them with the process of the annulment. In the Archdiocese of Denver, only priests and deacons are appointed to serve as Advocates, with the exception of those appointments made only by the Tribunal. Once a case is accepted by the Tribunal, the Respondent is afforded the right to have an Advocate appointed for him/her. The role of the Advocate is to guide the parties in thoroughly completing the petition and questionnaires sent to them as well as correspond with the Tribunal throughout the trial regarding the dynamics of the case. Since the annulment process can be emotionally draining for the parties involved, the Advocate also serves in a pastoral manner to make the process as painless as possible while helping them deepen their understanding of what the Church teaches regarding marriage and divorce.

 

 

The Judicial Auditor

The Auditor’s role is to assist the judges in the gathering of information from all parties in the case. It is not uncommon that you will be asked to undergo a personal interview with the Auditor to clarify testimony you have submitted. As stated earlier, the Auditor is the “point man” between the parties and the court. The Auditors can answer any questions regarding your case.

 

Defender of the Bond

Finally, before a Judge may render a decision regarding nullity, he must obtain the written comments of the Defender of the Bond. This person is charged with the task of upholding the validity of the marriage or attesting to the fact that justice has been served. The Defender protects the integrity of marriage by providing evidence from all the testimony gathered in the case to uphold the validity of the marriage. The judges will carefully review the report by the Defender before a decision is rendered.

 

The Process

Where to Start

 

The first place to begin the process is the pastor or deacon of your parish, or any priest within the Archdiocese of Denver. He will explain the annulment process to you and give you a Preliminary Questionnaire.

 

Types of Cases

 

The Preliminary Questionnaire will provide the Tribunal with the necessary information to determine whether your marriage is going to be a formal case or a “lack of form” case. A formal case pertains to those marriages contracted following the canonical form required by all Catholics (cf. 1983 CIC 1108 & 1117). Non-Catholics are not bound to observe canonical form unless they married a baptized Catholic. However, a dispensation can be obtained by the local ordinary (bishop), which would dispense the parties from observing canonical form. Those marriages which were required to observe the canonical form, but did not for whatever reason, can be declared null by an ecclesiastical tribunal by merit of the historical facts proven by documentary evidence. No formal investigation is needed. All other marriage cases are considered “formal cases” and an investigation regarding the interior dispositions of the parties at the time of marriage contract is commenced. We will now elaborate on the main classifications of nullity cases: documentary cases and formal cases.

 

·         DOCUMENTARY CASES: Ligamen, Defect of Form, Lack of Form

 

These are declarations of nullity which can result from an investigation of documents without a formal trial.

               

        Ligamen[6]

The first of these cases is called a Ligamen. This term refers to a bond of a prior valid marriage. Ligamen cases[7] refer to marriages involving one party who had been validly married before, and whose marriage had not been terminated by death before the celebration of a subsequent union, which also failed at a later date. Ligamen cases generally involve a marriage between non-Catholics. If the judges decide that there appears to a strong case for a ligamen, the Petitioner and Advocate will be assisted by the Tribunal in gathering the required materials.

 

Defect of Form

As stated earlier, there exist invalid marriages involving a defect of canonical form. This ordinarily refers to marriage celebrations in the Catholic Church where the officiating cleric either de facto lacked the faculty to assist or failed to assist actively by not requesting and receiving the consent of the parties or where the required two witnesses were not present. In other words, the required canonical form was only partially observed.

 

Lack of Form

In the past, it would not have been necessary to even explain this type of documentary case because the laws of the Catholic Church for marriages was well known. However, the level of ignorance of these laws has dramatically grown in the last few decades. Lack of canonical form cases, as stated earlier, refer to marriages of Roman Catholics who, while bound to the canonical form of marriage, attempt marriage before a non-Catholic minister of religion or a civil magistrate or enter into a civilly recognized common law marriage. Canonical form ordinarily refers to the celebration of marriage before a duly authorized Roman Catholic clergyman and two witnesses in a Catholic Church. Lack of canonical form ordinarily invalidates the marriage of Roman Catholics unless a previous dispensation from canonical form has been granted by the proper ecclesiastical authority.

               

·         FORMAL CASES: “Petitioning” for an anullment

 

Those individuals whose marriages are determined to be “formal” cases are sent a “formal petition” to be completed by the Petitioner of the case. This is a good time to meet with your approved Advocate to help you complete the petition in a thorough manner. This 16-page petition is comprised of questions covering the background of both parties and the dynamics of the courtship, engagement, and marriage. The testimony given in the petition is given under a solemn oath, which the Petitioner signs at the end of the testimony. It is extremely important that each question be answered with as much detail as possible in order to help the court gather all information as soon as possible.

 

Some ask the question: “Why do I need to answer the detailed questionnaire? This seems so intrusive. These questions don’t seem relevant!” It is true that not every question may be completely relevant to your particular case, but a vast majority of the personal questions do apply. You have petitioned the Catholic Church to thoroughly investigate your disposition at the time of marital consent, and there are many factors present which influence your decision. This includes your childhood and family life, adolescence, courtship, and engagement. The detailed questions regarding your background and courtship are to help the court see that those factors that caused your marriage to fail existed at the time of your consent and saw their fruition in a failed marriage. Therefore, since the decision to marry is one that encompassed the whole person, body, mind, and spirit, it is necessary for the court to examine each party’s history in the same context.

 

Upon reception of the petition, the judges review the content and decide whether the facts presented merit possible grounds for the marriage to be declared null. A legitimate “doubt” has been presented and the investigation of the marriage will proceed on that basis.

 

Don’t forget, the Judicial Auditor and an Advocate are available to assist you through the processing of the case.

 

Your Spouse’s Participation (The “Respondent”)

 

One may wonder why the word “spouse” is used rather than “previous spouse.” Remember that the Church’s presumes a marriage is valid until proven otherwise within an ecclesiastical tribunal. Throughout the annulment process, however, your spouse is referred to as “The Respondent” while you are referred to as “The Petitioner”. To ensure the rights of your spouse, he/she is notified that you have petitioned the Tribunal for a declaration of nullity of your marriage. Accompanying this citation of your spouse is the same questionnaire you completed as your formal petition. If the Respondent has not been properly cited, then the Petition for Nullity of your marriage is automatically null and the process is abruptly stopped.

 

The participation of both parties often assists the judges in acquiring a fuller picture of the disposition of both people at the time they consented to marriage. If, however, the Respondent chooses NOT to participate, or even in a limited fashion, in the trial, it is sufficient for the case to proceed that he/she has been properly cited and offered the opportunity to provide testimony. In that case, the merits of the case will be tried on the testimony of the Petitioner and that of his/her witnesses.

 

Many become alarmed about getting their spouses involved because they are afraid of their spouses reading what they have written to the Tribunal. It is important to remember, however, that both parties have rights, as in a civil case, and to be equally involved in the annulment process. Therefore, only for a credible, grave reason is testimony ever withheld from one or both parties. Permission can be granted, however, to keep the Petitioner’s address confidential from the Respondent should that be necessary.

 

Another concern is that the Respondent may try to place obstacles in the case to prevent it from coming to a decision. The judges and auditors are keenly aware of such attempts and are often able to detect such efforts. The court is aware of the length of time a case is in process and will clearly communicate to both parties deadlines for information to be received. This prevents the processing of a case from being unduly delayed.

 

Testimony from Credible Witnesses: Why do I need Witnesses?

 

This is usually what comprises the longest part of the case processing. Once both Petitioner and Respondent have been cited and have not provided serious objections to the case, then the court sends questionnaires to all the witnesses listed by each party in their formal questionnaires. These witnesses should possess knowledge of the courtship, engagement, and marital dynamics. Children from the marriage in question are not appropriate witnesses because of the pressures to favor one party over the other. In addition, the direct offspring of the marriage in question do not possess first-hand knowledge of the courtship, engagement, and marital dynamics of the marriage. Those witnesses who possess expert knowledge of the events under investigation (psychologists, priests, counselors, etc.) should also be submitted as witnesses.

 

The purpose of witnesses is to help the judges reach the moral certitude necessary in order to render a definitive decision. Witnesses serve to offer an “outside” perspective on the facts of the marriage to confirm the testimony already given under oath. Witnesses, too, are required to give testimony under solemn oath in order to ascertain the objective truth of the facts of the case and prevent them from giving biased testimony. In addition, any communication between the Petitioner/Respondent with their witnesses regarding what testimony was submitted to the Tribunal is not permitted under any circumstances. If the court discovers that there has been such communication, the integrity of the case will have been violated and the case will be dismissed.

 

In order to facilitate the processing of your case, it is highly encouraged that you check on the status of your witnesses to make sure they have completed the witness questionnaire in a timely manner.

 

Personal Interviews

 

Personal interviews are commonly required of any of the parties and/or witnesses involved in the annulment process. Such interviews often serve to help elaborate on those details which the court renders necessary in obtaining the full truth of the matters in question. In addition, the parties involved often find that they are able to better express in a personal interview what they could not do in their written depositions. The Auditor appointed to your case almost always conducts the interview. This is also a good time to ask any questions you may have regarding the processing of your case.

 

Seeking Expert Testimony

 

After an adequate amount of testimony has been obtained from the parties and witnesses, the Instructing Judge may consult a clinical psychologist for his or her opinion about the marital dynamics of a particular case. It is not uncommon for one or both of the parties to be asked to visit with one of the court-appointed experts to help the judges better their understanding of more sensitive issues.

 

Some individuals become defensive when the court requires that such a visit be made for the case, jumping to the conclusion that the court thinks of them as “whackos.” This is far from the truth. The court is seeking the opinion of experts to assist them in fleshing out some of the deeper issues that were involved in the failure of the marriage. An expert’s assessment does not replace the judgment of the judges.

 

Part III: Rendering A Decision

 

Publication of the Process

 

Prior to arriving at a decision, the Judge will inform the Petitioner and the Respondent with their respective Advocates that they have two weeks in order to review all the testimony gathered from their witnesses and spouse. At that time, they may provide a rebuttal to any allegations made that are not true. They are also permitted to submit any new evidence within this period of time. This is known as the Publication of the Process.

 

Adjudication

 

After having heard from the Defender of the Bond, the Judge will study the case and issue the decision. Afterwards, he or she will inform both parties of the decision. If either party feels aggrieved by the decision, either or both may lodge a personal appeal of that decision within a reasonable period of time.

 

All affirmative decisions must be transmitted in the legitimately designated Court of Appeal. If the Court of Appeal concurs in the affirmative decision of the court of First Instance (the tribunal which processed your formal petition), the affirmative decision then becomes effective. In the case of a negative decision in First Instance, it is best that the aggrieved party consult with the Presiding Judge or Advocate before lodging an appeal.

 

 

Part IV: Special Cases

 

Dissolution of the Marital Bond: Pauline and Petrine Cases

 

There are two types of dissolutions: Pauline Privilege and Privilege of the Faith (Petrine Case). The Pauline Privilege[8] is a dissolution of a non-sacramental marriage. The following points are of particular importance:

 

1.        The non-baptism of both parties at the time of the celebration of the former marriage must be established.

 

2.        The Respondent must not have been baptized before the subsequent celebration or convalidation of marriage by the Petitioner.

 

3.        The Petitioner must sincerely desire to be baptized.

 

4.        The Respondent must ordinarily be contacted in order to determine whether he or she is also willing to receive baptism and is willing and capable of living peacefully with the petitioner and respecting his or her new faith life.

 

5.        The use of the Pauline Privilege is approved by the local Ordinary of the Archdiocese or his delegate.

 

6.        The former marriage is dissolved at the time the Petitioner, having been baptized, enters into a subsequent marriage in the Catholic Church, even with a non-Catholic.

 

 

 

The Privilege of the Faith (Petrine Case) is a grant by the Holy Father of a dissolution of a non-sacramental marriage for a serious favoring of faith. For such a marriage to be dissolved by this privilege at least one of the parties must not have been baptized during the entire common life of the marriage. If both parties have received Christian baptism after a civil dissolution of the marriage, it must likewise be established that sexual intercourse between the parties had not taken place thereafter.

 

A “serious favoring of the faith” may mean:

                that the Petitioner sincerely wishes to become a Catholic;

                                                                —or—

                that the petitioner does not wish to convert to Catholicism, but desires to marry a

                Catholic who wishes to continue to live his or her baptismal commitment;

                                                                —or—

                that a Catholic who was in a previously valid but non-sacramental marriage now

wishes to enter into a sacramental marriage.

 

The Privilege of the Faith is sometimes referred to as a Petrine Privilege and is granted only by the Pope in Rome.

 

 

 

 

 

 

APPENDIX A

 

Direment (Invalidating) Impediments

 

There exist additional cases which involve direment (invalidating) impediments. If an undispensed impediment is present at the time of the marriage, the marriage is invalid. These impediments are:

 

Lack of required Age (c. 1083)                                          Crime (c. 1090)

Impotence (c. 1084)                                                       Consanguinity (c. 1091)

Disparity of Worship (c. 1086)                                   Affinity (c. 1092)

Sacred Orders (c. 1087)                                                       Public Propriety (c. 1093)

Public, Perpetual Vow of Chastity (c. 1088)                       Legal Relationship from Adoption  (c. 1094)

Abduction (c. 1089)                                                                                      

 

 

Documentary Cases: Documents Needed

 

Ligamen

For those cases that are a ligamen, the following data are usually required:

 

1.        Marriage records for all parties involved

2.        Divorce Decrees for all parties involved

3.        Testimony primarily from the Respondent that his/her marriage to the first spouse was the first marriage for both of them

4.        Testimony regarding the non-Catholicity of all parties

 

Civil marriage and divorce records are very helpful in these cases. Therefore, names of parties and dates of former marriages are essential information.

 

 

 

 

 

 

 

 

 

 

 

APPENDIX B: EXPLANATION OF GROUNDS

 

 

Canon 1095, 1° --- Lack of Due Reason

 

Those who lack the sufficient use of reason are unable to contract marriage.  In this canon, the ability to know what one is consenting to comes into question.  For example, that one lacks this knowledge from permanent conditions such as severe mental handicap or brain damage; or from temporary factors, i.e. loss of reason due to drunkenness.

 

 

Canon 1095, 2° --- Lack of Due Discretion

 

Discretion refers to both the intellect and the will.  What is required for discretion is that the intellect make a mature evaluation and the will make a free choice.  In performing any action, an individual should enjoy the degree of discretion that is due or proportionate to that action.  Thus, the amount of discretion necessary for marriage is a greater degree of discretion than would be necessary to consent to some action which only concerns the present rather than the magnitude of this lifelong commitment.  A marriage, in short, is only valid when a person, using their critical faculties can deliberately form judgments with their mind and freely choose those actions with the will, barring grave dysfunction in the estimation or deliberation of their decision of marriage.  The factors causing a lack of discretion may be permanent, i.e. a personality disorder or transitory, i.e. psychological pressure, and must be operative at the time the marriage was entered into.      

 

 

Canon 1095, 3° -- Inability to Fulfill the Essential Obligations of Marriage

 

The essential obligations of marriage are basically twofold:  procreational and personalist.  It is the “personalist” obligation which is considered when using this ground.

 

This obligation concerns three basis acts which are -- self-revelation, understanding and loving.  In self-revelation, a person must have a basic understanding of his/her identity.  Second, a person must be able to see his/her spouse as a separate person and appreciate the way the spouse feels and thinks, without distorting it excessively by his/her own needs and insecurities.  Third, a person must be capable of being a loving person to one’s spouse.  In addition, both spouses must have the ability to perform these same three acts toward children born of the marriage.

 

A person who lacks the ability to perform these three aforementioned acts is therefore suffering from an inability to assume or fulfill the obligations of marriage.  For example, a person can enter a marriage with clarity of intellect and good intentions only to find that he/she is in a state in which he/she cannot handle the responsibilities.  Sometimes this is a transient obstacle such as immaturity, which can pass away with years.  At other times, the obstacle remains permanent - such as a personality disorder or a psychological impairment.

 

 

Canon 1096 -- Ignorance of the Nature of Marriage

 

In order for matrimonial consent to be valid, the parties must be aware that marriage is a permanent partnership between a man and a woman, ordered to the procreation of children, and in which there is a mutual contribution to the personal development of each other and toward the peace and prosperity of the family.

 

Ignorance, then, is a lack of knowledge.  Therefore, Ignorance of the Nature of Marriage means that at least one of the parties lacks an understanding of what comprises marriage.  A person cannot enter into a marriage validly if that person does not understand the basic purpose of marriage.  This ground can be proven when the obligations normally associated with Christian marriage are not accepted nor fulfilled because a person is not operating with a true concept of marriage.

 

 

Canon 1097-- Error Concerning the Person

 

This ground speaks to a “false judgment” regarding a person or a quality.    Error of Person is the mistaking of one physical person for another.  The classic example of a marriage involving Error of Person is the marriage of Jacob where Leah was substituted for Rachel (Genesis 29: 6-31).  The likelihood of such an error occurring in a marriage in our society is negligible.

 

Error of Quality is a false judgment regarding some characteristic in the other person, such as wealth, social status, mental acuity or health.  For example, a woman marries a man thinking he is rich when in fact he is poor.  She is in error about the quality of wealth.

 

 

Canon 1098 -- Fraud

 

This canon states that a person contracts marriage invalidly who enters it deceived by fraud, perpetrated to obtain consent, concerning some quality of the other party.  For example, one person could lie to another about a quality or circumstance which he or she knows is problematic to the prospective spouse.  Or, fraud can occur when one party deliberately conceals something from the other party.  Fraud is also present when the marriage would not have taken place had the deceived party been made aware of the quality or circumstance.  It is possible that the fraud may be perpetrated by a third party, for example, the parents of one of the parties who are seeking a good match for their child.

 

Canon 1099 – Error Concerning the Unity, Indissolubility or Sacramental Dignity of Matrimony

 

This ground speaks to a “false judgment” of the essential elements of marriage, i.e., unity, indissolubility or sacramental dignity, insofar as this false judgment determines how an individual acts.  It is used in those cases when it appears one party has a “false” judgment of the essence of marriage, which is so ingrained in the party that the consent to marriage is invalid due to the party’s erroneous view of marriage. For example, a woman enters a marriage, convinced that it is not a permanent arrangement.  She believes the marriage contract is dissoluble and eventually abandons the marriage, divorcing her spouse.  This woman entered marriage with an erroneous view which could render the marriage invalid, in the eyes of the Catholic Church.

 

 

Canon 1100 – Knowledge of or opinion about the nullity of a marriage does not necessarily exclude matrimonial consent.

 

The fact that a party knows or believes that their marriage is invalid, due to such reasons as an impediment or lack of canonical form, does not automatically render the consent of the party invalid.  

 

 

Canon 1101 --  ( Commonly referred to as “Simulation”)

                §1.  The internal consent of the mind is presumed to be in agree-

                       ment with the words or signs employed in celebrating

                      matrimony.

                §2.  But if either or both parties through a positive act of the will

                      should exclude marriage itself, some essential element, or an

                     essential property of marriage, it is invalidly contracted.

 

The essential properties of marriage are unity (fidelity) and indissolubility (ever-lasting and non-terminable).  The essential elements are a union ordered to the well-being and “good” of the spouses and ordered to the procreation and education of children.  These are the qualities that are critical to the Catholic Church’s definition of “what makes valid marriage”.

 

Therefore, “defect of the will” occurs when externally a person accepts the obligations involved in marriage (i.e. any one or all of the properties and elements), but internally, the person does not.  For example, defect of the will could occur if a person, through a positive act of the will, marries with the resolution that he or she is not entering a faithful and exclusive marriage.

 

The juridic principal governing this ground presumes that the words that were spoken by either party during the marriage ceremony did not conform to the intentions of the parties speaking those words in the marriage.  Hence, it must be proven that either one or both parties who contracted marriage certainly intended against fulfilling the obligations embraced therein, through a positive act of the will.

 

This positive act of the will can be explicit or implicit.  The person could exclude elements of marriage or marriage itself from his/her consent, or a person could omit elements of marriage from his/her consent.  A person could include elements in his/her consent that are contrary to the essence of marriage.  For example, a party could enter marriage with a divorce mentality.

 

 

 

Canons 1056 and 1101 -- Intention Against the Good of the Sacrament (Contra Bonum Sacramenti)

               

Contra Bonum Sacramenti, literally translated means “against the good of the sacrament”.  In the teachings of the Catholic Church, marriages possess certain  “goods” which are:  unity (fidelity), openness to children, good of the spouses and indissolubility.  This ground deals with the element of indissolubility, that is, a marital relationship is supposed to be a perpetual and non-terminable commitment.  Therefore this ground is used in those circumstances where an individual entered the marriage, believing it could be dissolved or more broadly, the individual was not an appropriate spouse and lived a lifestyle which did not ensure the permanence of the union, and in doing so, excluded the “good” of marriage.

 

 

Canons 1056 and 1101 -- Intention Against the Good of Children (Contra Bonum Prolis)

                                                               

Contra Bonum Prolis, literally translated, means “against the good of children”.  In the teachings of the Catholic Church, marriages possess basic “goods”.  These are unity (fidelity), indissolubility, the good of the spouses and openness to children.  Contra Bonum Prolis deals with the element of children.  This ground, in essence, means that for some reason, there was an exclusion of the “right to the conjugal act”, that is to say, that from the beginning of this marriage, there was an intentional exclusion to the natural act of procreation.

 

Canons 1056 and 1101 -- Intention Against the Good of Fidelity (Contra Bonum Fidei)

                                                               

Contra Bonum Fidei, literally translated, means “against the good of fidelity”.  In the teachings of the Catholic Church, marriages possess basic “goods”.  These are unity (fidelity), indissolubility, the good of the spouses and openness to children.  Contra Bonum Fidei deals with the element of fidelity or unity.  In the broad sense, marital fidelity refers to the trust, loyalty and support that spouses show each other.  In the strict sense, it refers to sexual fidelity, i.e., having one’s spouse as one’s only sex partner.  This ground means that there was an exclusion of fidelity by one of the parties.  In order for a marriage to be considered invalid on the basis of this ground, fidelity must be excluded as part of the marital covenant.  Motives for excluding fidelity could be an attachment to a former lover, an inability to abandon a life of indulgence and promiscuity or an aversion to one’s spouse.

 

 

Canon 1102°1 Marriage cannot be validly contracted subject to a condition concerning the future.

 

This canon envisions situations in which a party attaches conditions to their marital consent, so that there consent hinges upon the fulfillment of some future condition.

 

Canon 1102°2  Marriage entered into subject to a condition concerning the past or present is valid or not, insofar as the subject matter of the condition exists or not.  

 

 

Canon 1103 --- Force and Fear

 

This canon questions whether an individual entered marriage with a grave force or fear imposed from without, from which the person had no escape but to enter marriage.  Force refers to the external physical or moral impulse which cannot be resisted, while fear refers to the trepidation of the mind which is the result of an impending danger or evil.  The fear must be considered grave, imposed from without, and it must be the cause of the marriage.

 



[1] Cf. CIC, canon 1055, §1.

[2] 1983 Code of Canon Law (CIC), c. 1421.

[3] CIC, c. 1425, § 3.

[4] CIC, c. 1458.

[5] CIC, c. 1458.

[6] See Appendix A

[7] CIC, c. 1085.

[8] 1 Cor 7:8-15.