

REFLECTIONS

ON

MATRIMONIAL JURISPRUDENCE

Lawrence G. Wrenn

Text copyright 2018 Lawrence G. Wrenn

all rights reserved

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CONTENTS

Preface

Articles

1 - How Jurisprudence Evolves

2 - Requesting and Receiving Marital Consent

3 - Canon 1095: A Bird's Eye View

4 - Refining the Essence of Marriage

5 - Urban Navarrete S. J. and the Response of the Code Commission on Force and Fear

6 - Sacramentality and the Invalidity of Marriage

7 - Invalid Convalidations

8 - A New Condition Limiting Marriage

9 - What is an Annulment?

10 - When is an Invalid Marriage Null?

Appendices

1 - The Eucharist and the Invalid Marriage

2 - Marriage and Cohabitation

3 - Important Dates Regarding Court Procedures for Adjudicating Marriage Cases

# Preface

This e-book is a collection of ten articles each of which examines the canon law on marriage. The articles were written over a period of years and were published mostly in the Jurist. It is being offered primarily to young canon lawyers or students in the law, especially perhaps those who reside outside of North America, who would presumably have some interest in the topics but who do not have easy access to past issues of the Jurist. The hope, at any rate, is that some will find it helpful to have the articles now gathered together in this little e-book.

The first article in this collection notes that jurisprudence tends to evolve in five different ways: by contraction, restoration, expansion, utilization and application. The next seven articles then proceed to illustrate these different evolutionary styles. The second article is an example of jurisprudence evolving by contraction, article three by restoration, articles four, five and six by expansion, seven by utilization and eight by application, while the two final articles deal with the terms annulment, nullity and invalidity.

Besides these ten articles, there are also three appendices. The first, very brief appendix is just a few incidental, cursory paragraphs (from a 1969 article on jurisprudence) that touch on whether Catholics in an "irregular marriage" might be permitted to receive the Eucharist.

The second appendix, which was published in 1967, is included in this collection primarily because it provides today's reader with a valuable insight into what our canonical literature was like a half century ago. Several characteristics of the article are typical of that period. It includes, for example, some lengthy quotations in Latin without any awareness that a translation might be helpful. It relies on twenty year old Rotal decisions without the slightest thought that more recent insights might be valuable. And despite a closing line about the fact that jurisprudence was beginning to assign greater importance to "the material element of marriage, the factual living out of marriage", the author seems to have absolutely no clue as to where that might lead. Where it in fact led was to the creation and incorporation of a brand new canon, canon 1095,3° into the 1983 Code of Canon Law. In 1969, however, it did not seem to occur to the author of this article (that's me) that such a dramatic development in jurisprudence could possibly occur in so short a period of time. But this, it seems, was a special characteristic of the '60s: change occurred so rapidly that some of us found it difficult to know what was just around the corner. Fortunately, however, what in fact lay around the corner was much wisdom and good sense, and it was that wisdom and good sense that helped to usher in the jurisprudence we have today.

The third appendix is included here, in this e-book on jurisprudence, because while, by itself, it is just a simple, skeletal chronology of the procedures practiced in our courts over the centuries, it is, after all, precisely there, in our courts, that matrimonial jurisprudence is developed and applied.

Lawrence G. Wrenn

Sarasota, Florida

June 26, 2018

Return to TOC

# ARTICLE ONE

## HOW JURISPRUDENCE EVOLVES

As the term is commonly used jurisprudence is applied, legal matrimonology. It is, in other words the application of the science of marriage to the question of marriage validity. Its concern is with such basic, rather philosophical questions, as: what is the essence of marriage? what are the indispensable qualities that must exist in the two people in order for them to be fit subjects for marriage? what actions are required by the couple in order to enter marriage? It is called jurisprudence because it is exercised in a judicial setting by jurists or judges who have been called upon to determine whether all the absolute essentials are or are not present in a given marriage; to determine, in other words, whether or not a particular marriage is valid.

Like every science, jurisprudence is dynamic and in a state of constant evolution, but traditionally, in discernible ways: by developing new principles; by restoring old principles after a period of dormancy; by utilizing existing principles previously ignored; by expanding, refining, or contracting prevailing principles; by explicating what had been implicit or by giving a new emphasis to a principle; and also by a change in circumstances that results in a new application of an old principle. Although jurisprudence is never static, some periods of history are more dynamic than others, and this is certainly true of the past couple of decades, during which jurisprudence has developed with extraordinary rapidity in a number of areas. The following are some examples of that development, listed according to their evolutionary style.

_Contraction_. An example of jurisprudence evolving by the restriction of a principle may have been occasioned by the so called "Vasectomy Decree" of May 13,1977 (ActApS 69 [1977] 426). It is perhaps too early to say for sure but it is the opinion of some that this decree of the Congregation for the Doctrine of the Faith relative to the "impotence which prohibits marriage" ( _impotentia quae matrimonium dirimit_ ) may result in church courts taking a more restricted view of what constitutes male impotence. The gist of the decree is that if a man can perform sexually, he should be regarded as potent, even though his ejaculate contains no spermatozoa. Such men, vasectomized men, for example, were considered by chanceries _ante factum_ not to be barred from marriage as far as the impediment of impotence was concerned. If, however, the marriage later ended in divorce, tribunals were accustomed, if petitioned _post factum_ , to declare the marriage null on the grounds that the man was not capable of performing "those acts which are per se apt for the generation of offspring" and should therefore be regarded as impotent. Tribunals in other words, have always had a wider view of impotence than have chanceries. There is some speculation, however, that since Pope Paul VI personally approved the "Vasectomy Decree," tribunals will now adopt the more restricted chancery notion. Should this prove true it would be an example of jurisprudence evolving by contraction.

_Restoration_. The most important and dramatic development in jurisprudence in recent years was effected by restoring an old principle that had, for many years, been dormant. It concerns the most fundamental of all jurisprudential problems: what is the essence of marriage? The Code of Canon Law (CIC c. 1081 §2), P. Gasparri, _De Matrimonio_ , n. 776, practically all of the manualists, and Rotal decisions for many years held that the essence of marriage consists in what might be called the right to the joining of _bodies_ , or, more accurately, the right to those acts which are per se apt for the generation of offspring. The right to the joining of _souls_ ,·on the other hand, i.e. the right to a personal, conjugal communion was regarded as pertaining not to the essence of marriage, but only to its wholeness or integrity.

In recent years, however, a host of Rotal decisions have come to consider the right to the community of life as pertaining not merely to the integrity but to the very essence of marriage. This insight is endorsed not only in decisions of the Roman Rota and the Apostolic Signatura but also in the 1975 _Schema canonum_ proposed for the revised law on the Sacraments, in which the new canon 1081 §2 is adjusted to read: "Matrimonial consent is that act of the will whereby a man and a woman by means of a mutual covenant constitute with one another a communion of conjugal life which is perpetual and exclusive and which by its very nature is ordered to the procreating and education of children" (c. 295 §2).

Although this development in jurisprudence has been heralded as an innovation, resulting largely from Vatican II, it is, in fact, rather a restoration of an older jurisprudence, reflected with limpid clarity in the works of such distinguished canonists as Tomas Sanchez, who published in 1602, and Franz Schmalzgrueber, who wrote about a century later.

The impact and ramifications of recognizing the right to the community of life as part of the essence of marriage have been profound and extensive. Previously, people were regarded as lacking the basic, stable capacity for marriage only by reason of genital impotence, that is to say, only when they were unable to exchange the right to the joining of _bodies_. Now, however, people are also considered to lack the capacity for marriage when they are radically incapable, by reason of some mental disorder or emotional immaturity, of exchanging the right to the joining of _souls_. According to this jurisprudence, a tribunal will declare a marriage null when it has determined that one spouse, even though of "sound mind" at the time of the ceremony, nevertheless lacked, at that time, the capacity to enter with the other person into a lifelong union that would be characterized by at least minimal caring and sharing.

This ground now accounts for more than 90 per cent of all annulments granted in the U.S., perhaps 17,000 or more per year, and although most canonists are convinced that it is a legitimate jurisprudential development as well as a useful pastoral tool, its long term effect on marriage stability and family life has also become for some a source of concern and even alarm.

_Expansion_. Substantial error has always been regarded as a ground of nullity (CIC c. 1083). Traditionally, however, the term "substantial error" referred, for all practical purposes only to the case where, on the wedding day, a groom or bride mistakenly married the wrong physical person, a person physically different from the one he or she intended to marry. In recent years, however, this ground has been expanded to include the situation where one party fraudulently conceals from the other a serious defect, flaw, or deficiency, some important quality which the other party has a right to know. A man, for example, knowingly has an illness which will soon disable him but he conceals this from his fiancee because he fears that, if told, she might not marry him. Or he conceals from her the fact that he is a carrier of a genetic disease, or that he has been in a previous civil marriage and perhaps even has children, or that he is homosexual. Current jurisprudence regards as null marriages under such conditions because the deceived person was in substantial error. The meaning is not simply that there is a question of mistaken identity, but that the person taken in marriage was of a substantially different character than was known.

_Utilization_. An invalid marriage can be validated in either one of two ways, by sanation ( _sanatio in radice_ ) or by so-called simple convalidation. The law and jurisprudence on the simple convalidation has always been clear and demanding. Two things are required for validity. First of all, both parties must personally recognize the first ceremony as invalid, and secondly, since they have not effectively taken each other as husband and wife in any previous ceremony, they must do so at the time of the convalidation (CIC c. 1134). A simple convalidation, in other words, is not a mere blessing or a mere confirmation, or reiteration of a former exchange of rights; it involves a new marital consent distinct from the former, inefficacious one. Since most non-Catholics, and even some Catholics, would not, in fact, view the ceremony this way, validations involving such people should properly be effected not by simple convalidation but rather by sanation.

In fact, however, the practice, at least in the U.S., was, for many years, to validate such unions by simple convalidation; and this improper practice undoubtedly resulted in a great many invalid convalidations. Although, in theory, there has been no jurisprudential change over the years on this point, nevertheless, the traditional, jurisprudence was in practice almost universally unknown or ignored and was only rarely applied to a particular marriage. Since the early 1970s, however, most American ecclesiastical courts have been disposed to declare invalid the convalidations of people who regarded them simply as church formalities or blessings or the sacramentalizing of an already valid marriage. And this new practice has, in effect, constituted a genuine evolution in jurisprudence by utilization of existing law.

_Application_. Evolution by utilization is one thing; evolution by application is another. The former occurs where both the law and the circumstances remain exactly the same, but the law, after a period of being ignored, is newly utilized. Evolution by application, on the other hand, occurs where the circumstances or cultural conditions change and provide new applications for the law. The jurisprudence on the conditioned marriage provides an example of this. Jurists have always regarded a marriage as conditioned and therefore nullified whenever a party attached such excessive importance to a particular circumstance that he or she rated it higher than marriage itself and really did not want the marriage without the all-precious circumstance. Traditionally this circumstance was usually something very specific and was most often suggested by the culture in which the marriage took place. A man, for example, might condition a marriage by intending to marry only a virgin; or a woman, by intending to marry only a man who would convert to the Catholic faith. The present culture, with its emphasis on personalist values, has created a new application for the old principle. Young people today are inclined to attach excessive importance to personal fulfillment in marriage. Indeed some, perhaps many, are intending, at least implicitly, to enter marriage only if it is personally fulfilling. This is to condition a marriage just as surely as the man of a different time and place and culture conditioned marriage by intending to marry only a virgin. Thus, in a sense, a new jurisprudence emerges, but only in its application.

A second example of jurisprudence evolving by application is in the area of an intention against perpetuity. It has always been recognized that a person who enters marriage while reserving the right to divorce should the marriage prove unhappy, enters marriage invalidly. Jurists used to think, however, that that law had a narrow application; now they understand it to have a broad application. This change has resulted chiefly from the divorce mentality so prevalent today. Again, jurists used to be of the opinion that a person's opinion favoring the admissibility of divorce was virtually irrelevant when judging the validity of a specific marriage. In theory, in other words, a person might believe divorce acceptable, but in practice should be presumed to have entered marriage for life, regardless of that belief. Personal opinions were seen as residing purely in the mind and as quite separate from the will or intentions. Today, however, such an evaluation is no longer tenable. Clearly the divorce mentality has now become such an active part of a vicious circle that the mentality itself is now clearly contributing to the increase in actual divorces. Personal belief, therefore, or perhaps more accurately, the degree to which a person has subscribed to the divorce mentality, is now seen as extremely relevant, not perhaps decisive in itself of marriage nullity but certainly highly significant. This is another example of jurisprudence evolving by applying an old law to a new cultural context.

1979

Return to TOC

# ARTICLE TWO

## REQUESTING AND RECEIVING MARITAL CONSENT: A CHRONOLOGY

Our present law requires for validity that the one who officiates at a wedding must both request and receive the marital consent of the bride and groom. It is not enough that the officiant simply _receive_ the consent; he must also _request_ it. Canon 1108 §2 reads, "The person who assists at a marriage is understood to be only that person who is present, asks for the manifestation of the consent of the contracting parties, and receives it in the name of the Church."

The canon sounds simple and plain enough. In fact, it is, like many laws, packed with nuance and subtleties. Its complexity can perhaps be best appreciated and understood by examining earlier church laws designed to regulate the giving of marital consent, the rationale behind those laws, the degree to which those laws succeeded in bringing order to the all important social enterprise of marriage, and finally the various ways in which those laws have been received and interpreted. We begin with the pre-Tridentine period.

l. Prior to the Council of Trent

From its earliest days, or at least from the time of St. Ignatius of Antioch, who died in the year 107, the Church has always urged Christians to marry in the context of a Christian celebration1 and as the centuries passed, a marriage of Christians contracted without the presence of a priest came to be strictly forbidden and was viewed as gravely illicit.

Nevertheless, by the time of the Middle Ages, the secret or clandestine marriage had become common. Parents were, at that time, often arranging marriages for their children and would, on occasion, even threaten to disinherit a son or daughter who refused to abide by their wishes; and temporal lords and magistrates were acting similarly with regard to people under their jurisdiction. A young couple, therefore, who wanted to marry in defiance of the wishes of their parents or other authorities would often resort to marrying secretly.2 And while that marriage was regarded as illicit, it was not considered invalid since the Church at the time did not require for validity the presence of a priest during the exchange of consent. Gratian, for example, noted: "Marriages which are contracted secretly are not denied to be marriages, nor are they ordered to be dissolved if they can be established by the confession of both parties: they are nevertheless prohibited because, should one of the parties change his or her mind, the judge cannot give credibility to the confession of the other."3

George Joyce described the severity of the problem in the following words:

Clandestine marriages constituted one of the greatest problems with which the Church had to deal in the Middle Ages. Not until the Council of Trent was a remedy found for the abuse. Marriages thus made in secret with no witness who could attest them, were a source of the greatest evil to the whole social order. It not infrequently happened that a man, who had thus pledged himself, afterwards regretted the folly of which he had been guilty, and proceeded to make bad worse by a new marriage publicly celebrated with all due solemnity. The difficulty was now inextricable. The true wife could obtain no redress. To have accepted her unsupported statement would have been to put all future marriages at the mercy of any unscrupulous woman who should choose to perjure herself to the effect that the bridegroom was her husband. Even if the man repented of his crime, his admission of a previous contract could not possibly be entertained. The whole story might be a pure fiction devised as a means of escape from a marriage-tie which had become hateful to him.4

This was the awkward state of affairs that existed on the eve of the Council of Trent.

2. The Council ofTrent - 1563

The Fathers of the Council of Trent were faced with a dilemma. On the one hand they realized that clandestine marriages were a grave social evil which could only be solved by somehow declaring them to be not just illicit but invalid as well. On the other hand the Church had gone for more than fifteen centuries without requiring for validity that consent be exchanged before a priest, and the Fathers were not at all sure that the Church even had the power to do that since it seemed to many that the sacrament of matrimony, as instituted by Christ, was effected by the consent of the parties alone and that it was not therefore within the competence of the Church to demand more than that.

Finally, however, and for reasons we need not go into here, it was determined that clandestine marriages could indeed be declared invalid, and on November 11, 1563, the council issued the decree _Tametsi_ , the pertinent section of which reads as follows: ''Those who shall attempt to contract marriage otherwise than in the presence of the parish priest or of another priest authorized by the parish priest or by the ordinary and in the presence of two or three witnesses, the holy council renders absolutely incapable of thus contracting marriage and declares such contracts invalid and null, as by the present decree it invalidates and annuls them."5

What is particularly noteworthy about this decree is the passive role assigned to the priest. It was not, in other words, required that the priest do anything except be there and be sufficiently awake and of sound mind to witness the marital consent given by the parties. And while this passive role of the priest was sufficient to solve the old problem of the _clandestine_ marriage, it unfortunately gave rise to a new problem, namely the _surprise_ marriage.

The surprise marriage is perhaps best illustrated by a scene from that wonderful Italian novel, _I Promessi Sposi_ , written in the 1820s by Alessandro Manzoni. The scene is set in Lombardy in the 1620s, some sixty-five years after Trent. The background is that a certain Don Rodrigo, a powerful and unscrupulous nobleman, is making it difficult for the kindly Fra Cristoforo to arrange for the wedding of Lucia and Renzo. The scene, with some minor editing, reads as follows:

Meanwhile at Lucia's cottage plans were being put forward and discussed, of which the reader should be informed. After the friar's departure the three of them [Lucia, Renzo, and Lucia's mother Agnese] had remained in silence for some time, Lucia sadly preparing the supper; Renzo on the point of leaving every moment, so as to avoid seeing her harrowed face, and yet unable to tear himself away; Agnese apparently all intent at the reel she was winding, though she was, in fact, turning a plan over in her mind, and when it seemed ready, she broke the silence by saying:

"Listen, my children! If you've got enough wit and courage, and if you trust your mother, I can undertake to get you out of this hole, perhaps better and quicker than Fra Cristoforo, wonderful man though he is."

Renzo said at once: "Wit? Courage? Go on, tell us - tell us what can be done." ...

"As I said," went on her mother "Wit and courage and it's easy ... Easy, if you know how to set about it. Just listen to me carefully, and I'll try to explain. I've heard it said by people who know, and I've even seen a case myself, that for a legal marriage you must have a priest, but not necessarily his consent; it's enough if he's there."

"What's all this?" Asked Renzo.

"Just listen, and you'll hear. Two witnesses who're sharp and well-primed are needed. Then they go to the priest; the important thing is to catch him unawares, so he's got no time to escape. The man says, 'Your reverence, this is my wife'; the woman says, 'Your reverence, this is my husband.' The priest must hear them, and the witnesses must hear them; and the marriage is all done, and as binding as if the Pope himself had tied them up. Once the words have been said, the priest can yell and shout and raise the devil; but it's all no use: you're man and wife." ...

"It's just as I tell you; and in fact a woman I know who wanted to marry against her parents' wishes got what she wanted by doing this. The priest had his suspicions, and was on the lookout; but the young devils were smart enough to catch 'im at the right moment, said the words, and were husband and wife; though the poor girl regretted it afterwards within three days."

Agnese was telling the truth both about the possibilities and about the dangers of failure; for, as the only people who had recourse to this expedient were those who had found the ordinary way barred or refused, the parish priests took great care to avoid such forcible cooperation; and when one of them, even so, was surprised by one of these couples, with witnesses, he tried as hard to elude them as Proteus did those who wanted to make him prophesy against his will ...

"But then, why, mummy," said Lucia, in that demure way of hers - "why didn't this occur to Fra Cristoforo?"

"Occur?" replied Agnese. "You can be sure it occurred to him! But he wouldn't have wanted to mention it."

"Why not? ... Well, if you really want to know, it's because the clergy don't think it's really right."

"How can it not be quite right, and then be all right once it's done?" asked Renzo.

"Don't ask me," replied Agnese. "They've made the laws, as they wanted them, and poor folk like us can't understand them all. Like so many other things ... Look; it's like giving someone a hit; it's not right, but once it's done, not even the Pope can undo it."6

This was the situation in the latter part of the sixteenth century and throughout the entire seventeenth, eighteenth, and nineteenth centuries. During all that time a couple could validly marry by surprising the priest in the way Agnese was suggesting that Lucia and Renzo and their two witnesses do. At the same time, of course, the vast majority of people were marrying not by taking the priest by surprise but in the conventional way, which involved notifying the priest ahead of time and then, at the actual ceremony, following the Roman Ritual which required the priest to obtain marital consent from the parties by asking each one "Do you, N. take N. here present as your lawful wedded wife/husband according to the rite of holy Mother Church?" and each would respond. "Volo I do."7 This "solemn interrogation," however, was required only for liceity, not for validity, and the surprise marriage, therefore, remained a problem.

3. Wernz - 1904

In his _Ius Decretalium_ published in 1904 Padre Wernz, "the last of the decretalists,"8 offered a solution to the problem. He wrote:

In the solemn _interrogation_ and response there is present the public and manifest _expression of consent of the spouses_ , and in this rite the _joining_ principally consists; for under that solemn form marriage is truly and properly contracted and becomes a sacrament. Consequently, although spouses can _validly_ express their consent before they are interrogated by the pastor, they cannot do that licitly. For by reason of both _Tametsi_ and the Roman Ritual (see S. C. De Prop. F. 17 Apr. 1820 in the cit. Collect. S. C. De Pr...., n. 15-42.) it is evident that this solemn interrogation and response _ought_ to take place; spouses therefore who would neglect that form would violate a _rite_ prescribed by the Church at least under pain of venial sin (see _Sanchez_ 1.c. n. 2.3.7; _Rosset_ l.c. n. 2895.) and specifically the _bride_ would be following an unbecoming practice; and oftentimes the _witnesses_ would only with great difficulty be able to testify to such a rushed consent. Indeed, from the nature of the matter, nothing would stand in the way of the Church taking those solemn interrogations and responses which the Roman Ritual requires for the _licit_ celebration of marriage and establishing them as _essential solemnities_ , much like the ancient, solemn formularies of Roman Law, v.g. Are you pledging yourself ? I am pledging myself. Once such a discipline was instituted, pastors, who, in terms of _validity_ , now intervene only by their passive assistance and are practically defenseless against the surprise marriage and the deceit of spouses, would be better protected.9

It would not be long before Padre Wernz's proposed solution would be endorsed by the Holy See.

4. Ne temere - 1905-1907

On May 20, 1905 the Sacred Congregation of the Council met to discuss certain questions that had been presented to the congregation regarding various practices that might result in marriages being invalid. A two year study was then undertaken which resulted finally in the congregation issuing, on August 2, 1907, the decree _Ne temere_ which ruled on, among other issues, the matter of eliminating the surprise marriage. The decree itself as well as the _Relatio actorum_ outlining the events leading up to the decree, are found on pages 525-575 of the _Acta Sanctae Sedis_ of 1907 (hereafter cited as _ASS_ ).

When one reads the _Relatio_ two things become clear: first that the congregation is determined to eliminate the surprise marriage, but secondly that, in order to achieve that end, they do not rush to implement Wernz's solution (requiring for the validity of a marriage that the role of the priest be changed from a passive to an active one) but prefer, at least initially, to find a less drastic way. Chronologically the thinking evolved as follows:

_May 20, 1905_ \- at the very first meeting it was agreed that, in terms of the issue being discussed here, the basic idea was that a pastor ought to assist at a wedding on invitation and voluntarily ( _rogato e volontariamente_ ) as the method of abolishing all surprise marriages.10 The thinking at the time was that if it were required for a valid marriage that the priest be invited and acting freely, that would be sufficient protection against the surprise marriage.

_January 6, 1906_ \- the matter next came up in the _votum_ of the consultor, Augustus Sili, and is mentioned twice by him; first in the expositive section of his _votum_ where he simply says that a marriage in which the pastor is not invited would be invalid;11 and then in the dispositive part where, in a proposed canon it is stated that, in order for a marriage to be valid, the priest must be invited.12

_c. January, 1906_ \- In an undated votum, the defender of the bond, Charles Lombardi, agrees that requiring that the priest be invited should be a sufficient method of eliminating the surprise marriage.13

_February 17, 1906_ \- Monsignor DeLai, the secretary of the congregation, offered a schema or draft of canons in which he proposed Wernz's solution. His proposed canon read, "The ordinary or pastor, in order that he assist validly, ought to be invited and ought to request and receive the matrimonial consent of the contractants."14 When, however, the cardinals formulated a new draft subsequent to DeLai's votum, they omitted all mention of the priest requesting and receiving consent and accepted Sili's and Lombardi's suggestion that demanded only that the priest be invited.15

_July 14, 1906_ -Following the events of February, the congregation consulted with members of the Commission for the Codification of Canon Law, including the secretary of that commission, Monsignor Gasparri, and another draft was proposed. The actual canon of this draft read: "The pastor or ordinary or delegated priest, in order that they validly assist, must be invited and not be in disagreement ( _rogati nec contradicentes_ )." It was now gradually becoming apparent to the congregation, however, that such phrases as _rogato e volontariamente_ and _rogati nec contradicentes_ were probably too vague to constitute good law. It was reasonably clear that an invitation could be implicit as well as explicit,16 and how far could "implicit" be stretched? And how does one determine whether the priest is acting voluntarily and is not in disagreement? Should the validity of a marriage really depend on such internal acts on the part of the priest, especially acts that could often almost defy being proved? So a footnote to the canon itself noted that some of the consultors were of the opinion that the canon should state, that, for a valid marriage, the priest must request and receive the matrimonial consent.17

_January 26, 1907_ \- At the close of the plenary meeting of July 14, 1906 the cardinals decided that given the complexity and importance of the matter and the fact that not all of the consultors were in agreement regarding it, still another schema should be drafted. This final schema was presented by Monsignor DeLai at the meeting of January 26, 1907, and the pertinent canon of that schema now finally required for the validity of the marriage that the priest request and receive the matrimonial consent.18 It had at last been recognized that the only practical way of obtaining the goal of abolishing the surprise marriage was to change the role of the priest from a passive to an active one and require that he both request and receive the consent of the couple.

_August 2, 1907_ \- Number IV §3 of the final decree, _Ne temere_ , promulgated on this date, read, "The pastor and local ordinary validly assist at a marriage provided that, having been invited and asked, and not constrained by force or grave fear, they request and receive the consent of the contracting parties.19

5. The 1917 Code of Canon Law

Canon 1095 §1, 3° of the 1917 code dropped altogether the requirement that the priest be invited to assist, and stated simply, "A pastor and local Ordinary validly assist at a marriage provided that, constrained by neither force nor grave fear, they request and receive the consent of the contracting parties."

This neat, concise canon certainly ruled out the surprise marriage, which, given the history of its formulation, was clearly its purpose. Eventually, however, it gave rise, as we shall see, to some vexing questions.

6. Vermeersch - 1934

In 1934 Arthur Vermeersch asked about the following case: the bride and groom come to church; they sign the register as previously prepared by the pastor; the ceremony takes place as usual; the priest blesses the ring; the groom places it on the bride's finger, and the nuptial Mass is celebrated. Inadvertently, however, the pastor fails to request, by express words, the consent of the spouses. Is the marriage valid?

Vermeersch answered the question in these words:

The voluntary presence or assistance of the pastor, the care taken by him to write out the complete register, his coming to the altar where he blesses the ring and performs the usual actions as found in the Ritual, manifest his requesting of consent; meanwhile the spouses, who come to church with their witnesses and who do all that they are asked to do, give the matrimonial consent which they came to the church precisely to do. The marriage therefore is valid.20

7. Cappello - 1939

In the fourth edition of his _De matrimonio_ , published in 1939, Felix Cappello restated Vermeersch's case and gave qualified approval to Vermeersch's analysis. Cappello wrote:

We consider such a marriage to be at least probably valid. For by the fact that the pastor handed the couple the marriage register for their signatures and that each signed it; and by the fact that the pastor blessed the ring and handed it over, and that he properly carried out all the other matters in customary fashion, the law was fully satisfied, because in those circumstances it seems that the requested and received consent mentioned in can. 1095 §l, 3° is entirely present.21

8. Bender - 1960

The Dominican Father Ludovicus Bender disagreed with the two Jesuits, Vermeersch and Cappello, on this issue. Bender noted that canon 1095 §1, 3° required the pastor to request the consent of the parties. Requesting matrimonial consent, he said, consists of two elements: the _act_ itself, i.e. requesting, and the _object_ of the act, i.e., matrimonial consent; and both elements must be present for a valid marriage.

First of all, therefore, it is not sufficient for the pastor to say, "Anthony, what is it you intend?" Whereupon Anthony responds, "I intend to take Cecilia here present as my wife," because in that scenario the pastor is requesting something, but he is not requesting matrimonial consent, even though Anthony in response to the question, does spontaneously manifest his matrimonial consent. So, first of all, according to Bender, it is important to remember that, for a valid marriage, both elements must be present, both the _act_ and the _object_ of the act. It is not enough, therefore, for the pastor simply to request _something_ ; he must request _matrimonial consent_.

Secondly, as regards the _object_ , it should be pointed out that the object may be stated _implicitly_ , since in matters of this kind implicit acts and explicit acts are, in general, equivalent in law. The pastor, therefore, would, in terms of validity, adequately fulfill the requirements of canon 1095 if he said to a young couple, "Anthony, do you take Cecilia here present as the lawful mother of the children to be procreated by you in accord with the law established by God?" Because, implicit in this question is the question "Do you take Cecilia here present as your lawful wife?"

Thirdly, however, as regards the act itself, Bender was of the opinion that the act must be _explicit_ , that is to say, that it must have the specific nature of a request for matrimonial consent.

What then of the case posed by Vermeersch and Cappello? As Bender reconstructs the case, his principal emphasis is on the pastor handing over the marriage register for the signatures of the couple. That, for Bender, seems to be the act that might most closely resemble the requesting of marital consent. For Bender, however, the scenario described by Cappello, where the pastor inadvertently omitted the actual interrogation of the parties but carried out all the other customary functions, including especially the handing over of the marriage register for signatures, would result in a marriage that would be invalid both in terms of the act itself and in terms of the object of the act.

As regards the _object_ , Bender noted that the signing of the marriage register is not even implicitly a manifestation of matrimonial consent. It is rather the production of a written document about something soon to be done or something just done. But no one, not the spouses or the witnesses or the parents or friends or the pastor or canonists, sees the signing of the book as a manifestation of consent. Clearly they are two different things. And as regards the _act_ itself, handing the book to the spouses is not _requesting_ them to do anything. The handing or offering of the book does not have the specific nature of a request, and does not therefore fulfill the requirement of the law.

On both counts, therefore, "matrimonium ... non potest esse validum", said Bender.22

9. Ordo Celebrandi Matrimonii - 1969

On March 19, 1969 the new _Ordo celebrandi matrimonii_ was promulgated. By 1969, of course, the clandestine marriage and the surprise marriage were no longer the serious dangers they once were. The social conditions that gave rise to those problems had changed considerably, and though no one wanted to reopen the door to surprise marriages, some authors were even suggesting that it was time once again for the Church to require the form of marriage for liceity only.23

The new rite of marriage, at any rate, while not, of course, derogating from canon 1095 §1, 3°,24 nevertheless, now calls for a ritual implementation of the canon in a surprisingly free manner. When the moment in the marriage ceremony arrives for the couple to express their consent, the new rite offers two options. The _second_ option (to be used if "it seems preferable for pastoral reasons") calls for the priest to "obtain consent from the couple through questions" according to the traditional "solemn interrogation", "Do you Anthony, take Cecilia" etc. But the _first_ option directs the priest to say to the couple, "Since it is your intention to enter into marriage, join your right hands, and declare your consent before God and his Church," whereupon the groom says to the bride: "I, Anthony, take you Cecilia, to be my wife." etc., and the bride then, _mutatis mutandis_ , does the same.

This clearly was a much more relaxed understanding of canon 1095 of the 1917 code than the one given it by Padre Bender who defined the requesting of consent as "an act towards another person which is done in such a way that that person can give and manifest consent by a simple affirmative sign, like saying "Yes" or "I do" or like nodding one's head.25

10. The coetus on Marriage - 1970

When the _coetus_ on marriage of the Pontifical Commission for the Revision of the Code of Canon Law met on November 10, 1970, the first item on its agenda was the revision of the canons on the form of marriage. The discussion that day centered on the proposal, favored by the _relator_ or chairman, Father Peter Huizing, S.J., that the phrase "to assist at marriage" be given a technical meaning that would require not only the presence of the priest but also the fact that he would request and receive the consent. Although the new _Rite of Marriage_ did not seem to enter the discussion, some of the consultors were opposed to Father Huizing's definition of assistance at marriage. Nevertheless, when the matter came up for a vote, thirteen voted in favor of Father Huizing's proposal; one voted in favor _iuxta modum_ ; and only three voted against. It was agreed, therefore, that the new code should still require that the priest request and receive the consent of the contracting parties.26

11. Zalba - 1972

In an article that appeared in _Periodica_ in 1972 Marcelino Zalba, S.J. noted that the new _Rite of Marriage_ , which favored the priest inviting the spouses to express their consent, prompted some to question whether _inviting_ the spouses to express their consent truly amounted to _requesting_ that consent as required by canon 1095 §1, 3°.

Father Zalba himself argued persuasively that an invitation certainly and without doubt amounted to a request, but conceded that this somewhat broader understanding of how a request could be made might give rise to a new problem. Father Zalba offered this as an example: suppose that a Catholic priest and a Protestant minister are present at a mixed marriage for which no dispensation from form has been granted. The understanding is that the priest will officiate. At the time of the ceremony, however, the priest, contrary to norm 12 of _Matrimonia mixta_ ,27 suggests to the Protestant minister that they use the question and answer format, with the priest requesting the consent of the Catholic party and the minister requesting the consent of the Protestant party; which they proceed to do.

The priest, of course, has acted illicitly; but has he fulfilled the requirements of canon 1095 §1, 3°, and is the marriage therefore valid? Father Zalba based his conclusions on the deliberations leading up to the decree _Ne temere_ as found in the Relatio actorum (which demonstrate that giving the priest an active role had no other purpose than to avoid the surprise marriage - which was not an issue in the Zalba case), on the opinions of Vermeersch and Cappello regarding the case of the priest who conducted the wedding in the usual manner except that he forgot to make the solemn interrogation of the parties, on the broader understanding of what it means to request consent as found in the new Rite of Marriage, and on the opinions of other authors in somewhat similar cases. In light of these considerations he concluded that the marriage was certainly valid.

Zalba's reasoning process went along these lines: when the nonCatholic Cecilia heard the priest ask the Catholic Anthony if he was taking Cecilia as his lawful wedded wife, and Cecilia offered no objection, that meant that the priest was effectively, though implicitly, asking Cecilia as well whether she was accepting the role of wife and consenting to marriage; and since she did not object, she was, in effect, giving her consent. When, therefore, the priest directly requested and received Anthony's consent, he was indirectly requesting and receiving Cecilia's consent as well, and the marriage was therefore valid.28

Zalba's fictitious case was, of course, quite different from that of Vermeersch and Cappello. The Vermeersch/Cappello case involved a priest who did not personally or through another request in so many words (either by interrogation or invitation) the consent of either party, whereas Zalba's case involved a priest who physically and directly requested the consent of one party but not the other. In both cases, however, the authors found in favor of validity. Within a few years, two similar but this time real cases were presented to the apostolic delegate of the United States but received quite a different response.

12. Response of the Congregation for the Doctrine of the Faith - 1975

On September 11, 1975 the chancellor of the Diocese of Salina, Kansas made this request of the apostolic delegate:

I write for your kind assistance in obtaining clarification regarding the exact requirements of canon 1095, paragraph 1, section 3, which indicates that for the validity of a marriage, the officiating priest must "ask and receive the consent of the contracting parties."

This question has arisen in connection with a petition for a declaration of nullity of a marriage for which no dispensation from Canonical Form was granted and at which a priest of our Diocese "Officiated" by simply being present and "listening to" the vows of the couple with a non-Catholic minister taking the active part. This priest did not judge it necessary to apply for a Canonical form dispensation but simply allowed the non-Catholic minister to proceed with the marriage thinking that his (the priest's) mere presence would qualify by reason of his hearing the vows.

There is added reason for seeking clarification relative to the exact canonical requirements on the part of an officiating priest for the validity of a marriage. We have recently learned here at the Chancery that it has become the practice of a few priests when officiating at a marriage in a non-Catholic church at which the non-Catholic minister was allowed to "participate", that the priest would receive the vows of the Catholic party and the nonCatholic minister would receive the vows of the non-Catholic party - in these instances no dispensation from Canonical Form was requested or granted.

Our Chancery has researched this question and has sought clarification by consulting several different sources of canonical jurisprudence and commentary. However, we have not been able to satisfy ourselves as to what precisely is meant or required when canon law indicates that the officiating priest must "ask and receive the consent of the contracting parties." Whatever kind assistance you can offer us either through your office or by directing this inquiry to the proper office in Rome would be sincerely appreciated.

The apostolic delegate forwarded the request to the Sacred Congregation for the Doctrine of the Faith which, on November 28, 1975, responded to the Bishop of Salina:

In his letter of the 11th of September of this year, the chancellor of your [Bishop of Salina] diocesan curia made inquiry of this S. Congregation whether a marriage must be held to be null because of defect of canonical form when a non-Catholic minister received the consent of the contracting parties while the pastor, however, listened. The pastor, on his own authority, had given permission to have the wedding celebrated in his parish church.

Moreover, the said chancellor has informed this S. Dicastery that sometimes in the said diocese, when mixed marriages are entered into, each one of the contracting parties expresses matrimonial consent to the respective officiant of his/her religious confession while the other officiant merely listens.

After having subjected all the circumstances of the matter to mature examination, I inform you, relative to the matter, that this S. Congregation has decreed that for the valid form of a wedding celebration it is required that the Ordinary or the pastor or their delegate should have an active role, that is, that he truly receive the consent of the spouses and, indeed, of each one of the contracting parties; and that, otherwise, the wedding celebration must be considered invalid.29

What is particularly noteworthy about these remarks by the congregation is not so much what they say as what they fail to say. Remarkably, they say nothing at all about the need for the priest to request the consent of the parties. Despite the clear prescription of canon 1095 §1, 3° that the priest must request and receive the consent, the congregation makes no mention whatsoever of the need to request but only the need to receive consent. The congregation notes that the priest must have an active role, but it then goes on to say that what an "active role" means is that he truly receive the consent of the spouses, not that he request and receive, only that he receive the consent.

It seems puzzling that the congregation would so studiously avoid mentioning the requirement that the priest request the consent of the parties, and the lacuna is difficult to explain. One possible explanation, perhaps, is that in the years following the new _Ordo celebrandi matrimonii_ , there remained some vestigial doubt on the part of some that now that the priest could simply invite the couple to declare their consent, a genuine requesting of consent was no longer necessary; and this explanation might enjoy some modicum of credence in light of a meeting of the coetus on marriage some two years later. Still, the response of the congregation remains something of a mystery.

13. The Coetus on Marriage - 1977

In 1975, as part of the process of revising the Code of Canon Law, a draft of the canons on the sacraments was sent worldwide by the Commission for the Revision of the Code to the standard consultative bodies such as conferences of bishops and canon law faculties. Included in that schema was the draft of the canon that had been voted on at the November 10, 1970 meeting of the _coetus_ on marriage discussed under number ten of this paper. The draft canon read, "To assist at marriage is, while being present, to request the manifestation of consent of the contracting parties, and to receive it."

When the suggestions of the consultative bodies were returned to the commission, the coetus on marriage met on October 17, 1977 to discuss the canons on the form of marriage. It was noted that day that some of the suggestions submitted by the organs of consultation regarding the canon here at issue, that is, the one dealing with what it meant "to assist at marriage", called for a deletion of the word "request" since, it was said, "according to the new rite, consent is not requested by the minister but is manifested by the parties between themselves."

The consultors, however, did not agree that the word "request" should be deleted because" the phrase "while present, to request the manifestation of consent" does not regard the modalities of this manifestation but the fact of the manifestation of consent, about which the sacred minister does not conduct himself in a merely passive manner."

The draft canon was then voted on and the vote was six to two to retain the canon substantially unchanged.30

14. The 1983 Code of Canon Law

When the Code of Canon Law was finally promulgated in 1983, the canon that has been here under discussion was numbered 1108 §2 and read: "The person who assists at a marriage is understood to be only that person who, being present, requests the manifestation of the contracting parties and receives it in the name of the Church."

15. Navarrete - 1994

In a 1994 _Periodica_ article,31 Father Urban Navarrete, S.J., a scholar revered the world over by his colleagues, took the position that in the following instances the marriage is certainly valid:

1 - When the official witness, with awareness and intent, personally requests, by words or equivalent signs, the manifestation of consent from one or both parties, either separately or at the same time, and also receives that manifestation of consent made by both parties either by words or equivalent signs.

2 - When the official witness, being present with awareness and intent to assist, and presiding at the celebration, does not actually make either an invitation or an interrogation regarding the manifestation of consent but the spouses, on their own initiative, mutually express their consent, as for example, when, before the priest has a chance either to invite or request the couple's consent, the groom begins "I, Anthony, take you Cecilia etc.," and the priest does not interrupt.

3 - When the official witness, with awareness and intent to assist at a particular marriage, does everything that is prescribed in the liturgical rite but, either through inadvertence or confusion, omits the interrogations that ask for the manifestation of consent. On this point Navarrete notes that since no particular formula is prescribed for validity, the requesting of the manifestation on the part of the official witness and the manifestation of that consent on the part of the contractants is implicitly and sufficiently expressed in the totality of juridic acts and liturgical rites which precede, accompany, and follow the celebration of the marriage, even though the part where the liturgical rite prescribes the requesting and manifestation of consent in a specific way is omitted.

4 - When the official witness, with awareness and intent, assists at a particular marriage at which he is, of course, present but at which he assists silently, while another person, either a man or a woman, on the mandate of the official witness, and in his name, requests the manifestation of consent, with the official witness himself properly receiving it, as would happen, for example, if the mandated person performed the entire liturgical rite including the interrogation asking for the manifesting of consent. On this point, notes Navarrete, it is not a question of delegation; it is simply a matter of the interrogations being made by another person in the presence of the one who, as the official witness, requests the consent through an activity that is materially that of the other person but is juridically his own, and then receives that consent personally and directly.32

These four instances include, of course, the cases posed by Vermeersch and Cappello as well as those posed by Zalba and Salina. In every instance, according to Navarrete, the marriage is without doubt ( _absque dubio_ ) valid.

Navarrete's rationale for concluding to validity is that in each of the four cases the pastor or other official witness has, in fact, done what the law requires, that is to say, that he has requested and received the manifestation of consent by the parties. Perhaps he has not requested the consent in a material or physical or explicit way but in each of the four cases he has, in a juridical way, requested the consent.

The distinction between doing something physically and doing something juridically is a familiar one and is perhaps best illustrated by Navarrete's fourth case where the official witness, in effect, mandates another person as his procurator or proxy to request the consent in his name. The use of a procurator is perhaps the classic example in law of a person performing an action juridically (and being responsible for that action) while not performing that action physically, and is an ancient legal institute. Rule 68 of the _Regulae Iuris_ says: " _Potest quis per alium quod potest facere per seipsum_ ,"33 and Reiffenstuel (1641-1703) noted: "A procurator can intervene in all matters and cases in which it is not considered to have been expressly prohibited."34

A principal acting though a procurator is not, however, the only example of an action being done juridically though not physically. According to Navarrete this is exactly what happens in that part of his first case where the official witness requests the manifestation of consent of only one party (the Zalba case), as well as in his second and third cases, where either the couple on their own initiative express their consent prior to the request by the official witness, or where the official witness, while performing all the other customary functions at a wedding, forgets to make the actual solemn interrogation. In such cases, as Navarrete sees it, the priest is present precisely to officiate at the wedding; he is not taken by surprise; the couple express their consent in many ways; and those present understand that a wedding has just taken place. In light of all that, even though the letter of the canon has perhaps not been strictly observed, nevertheless the law recognizes that in substance the necessary action has taken place, or as Cappello said: "the law is fully satisfied _legi plene satisfactum est_ ," and the marriage is therefore valid.

This is especially true because the purpose of the law, the _finis legis_ , in all these cases has been attained. It is eminently clear from the proceedings leading up to the decree _Ne temere_ , as outlined under number four of this paper, that the one and only purpose of shifting the role of the priest from a passive to an active one by requiring him to request and receive the consent was to avoid the surprise marriage. From 1907 on, the point of giving the priest an active role was never to enhance the position of the priest. Quite the contrary. There was always a reluctance to give the priest an active role precisely because it was feared that doing so would detract from the position of the spouses who, when both are Christian, are the ministers of the sacrament. Giving the priest an active role, in other words, was never an end itself but a means (and perhaps a less than ideal means) of protecting against the surprise marriage.

This is not to say that canon 1108 §2 of the 1983 code does not require for validity that the official witness exercise an active role at a wedding. It very much does. At the same time, however, when the purpose of the law has been attained (i.e. when the official witness is not taken by surprise) and when juridically the official witness truly takes an active role, then the marriage is presumably valid. This, however, is verified, according to Navarrete, when the official witness conducts himself in such a way that, in a very real sense, he himself juridically exercises responsibility regarding a public act so that he can render authentic witness before the Church regarding its existence. What is required, according to Navarrete, is that the official witness be present in the place where the marriage is celebrated and that he act as the person legitimately deputed for this act and therefore as the person responsible before the Church for that juridic act which is placed by the parties manifesting their consent. If the official witness does that, if he is present with awareness and intent at the moment when the parties express their consent so that he can give authentic testimony before the Church to the fact that the marriage was celebrated in his official presence, then the official witness has juridically, perhaps not physically, but juridically requested the consent of the parties as required by canon 1108 §2, and the marriage is therefore valid.35

Concluding Remarks

If the positions of Navarrete, Vermeersch, Cappello, Zalba et al. are at least probably correct,36 then, in terms of _tribunal_ practice, judges would be hard pressed to reach moral certitude of invalidity when presented with cases that reflect any of the four scenarios outlined by Padre Navarrete. In terms of _chancery_ practice, however, most diocesan and conference policies would undoubtedly remain in place, because those policies are, for the most part, based on the following three norms: canon 1119, which requires that, outside the case of necessity, the rites prescribed in the liturgical books approved by the Church are to be observed in the celebration of marriage; canon 1127 §2, which implies that, if grave difficulties hinder the observance of canonical form in a mixed marriage, then the proper solution is to request a dispensation from form; and canon 1127, §3, which explicitly disallows, in a mixed marriage, a religious celebration in which the Catholic who is assisting and a nonCatholic minister together, using their own rites, ask for the consent of the parties.

Apart from its practical implications, however, canon 1108 §2, with its fascinating history, serves as an illuminating case study of the art of legislating and the art of interpreting within the context of canon law.

1999

Return to TOC

ENDNOTES

1 Letter to Polycarp, 5. PG 5: 724.

2 James Brundage, Law, Sex and Christian Society in Medieval Europe (Chicago: University of Chicago Press, 1987) 276-277. And also Canons and Decrees of the Council of Trent, Original Text with English Translation, Session 24, ch. 9 (St. Louis: Herder, 1941) 189 and 459-460.

3 _Decretum_ C. 30, q. 5, c. 9.

4 George Joyce, _Christian Marriage: An Historical and Doctrinal Study_ (London, Sheed and Ward, 1933) 107-108.

5 Session 24, ch. 1.

6 Alessandro Manzoni, _I Promessi Sposi_ , translated by Archibald Colquhoun as _The Betrothed_. (New York, E. P. Dutton, l951) 80-83. For an historical rather than a fictional example of the surprise marriage, see John Creagh, _A Commemary on the Decree "Ne Temere"_ (Baltimore: J. H. Furst. 1908) 39.

7 Francisco Xavier Wernz, _Ius Decretalium_ , Tomus IV, _Ius Matrimoniale_ (Rome: Propaganda, 1904) 305.

8 Clarence Gallagher, "Francis Xavier Wernz, S. J. The Last of the Decretalists. Wernz's Contribution to Canonistic Studies," _Investigationes Theologico-Canonicae_ (Rome: Universita Gregoriana, 1978) 169-184.

9 Wernz, 305, n.273.

10 _ASS_ 40 (1907) 531.

11 Ibid., 538 under 3a.

12 Ibid., 540 under ch. I, §1.

13 Ibid., 548 under 8.

14 Ibid., 565 under canon 2.

15 Ibid., 567.

16 See the _Codicis Iuris Canonici Fontes_ , V. 6, p. 893, n. 4349, dubium IV for the ruling on this matter dated March 28, 1908 by the Congregation of the Council. See also Charles Cronin, _The New Matrimonial Legislation_ (London: R and T. Washbourne, 1909) 177. This valuable commentary on _Ne temere_ , published only two years after the decree itself, is very helpful in clarifying the background and proceedings that led up to the decree. The author incidentally, also offers, on page 176, an interesting observation on the validity of the marriage of Renzo and Lucia when they attempted to follow Agnese's instructions.

17 _ASS_ 40 (1907) 570 under canon 5 and note 1.

18 _ASS_ 40 (1907) 573 under canon 3 §2.

19 _AAS_ 40 (1907) 528.

20 Arthur Vermeersch, "Quaesita Varia. V. De forma celebrationis matrimonii," _Periodica_ 23 (1934) 202.

21 Felix Cappello, _De matrimonio_ 4th ed. (Rome: Marietti, 1939) n. 669. This material did not appear in Cappello's third edition published in 1933.

22 Ludovicus Bender, _Forma Iuridica Celebrationis Matrimonii_ (Rome: Desclee, 1960) 65-69.

23 Lawrence Wrenn, "Updating the Law on Marriage," _The Jurist_ 27 (1967) 274-278.

24 Number 17 of the introduction to the new _Rite of Marriage_ specifically notes that it is always necessary for the officiant to request and receive the consent of the parties in accord with canon 1095 §1, 3°. See also 1917 code, c. 1120.

25 Bender, 66.

26 _Communicationes_ 8 (1976) 36.

27 _Matrimonia mixta_ , promulgated _motu proprio_ by Pope Paul VI on March 31, l970. See CLD 7: l3.

28 Marcelino Zalba, "Dubium circa partem activam testis qualificati in celebratione matrimoniorum," _Periodica_ 61 (l972) 107-118.

29 _CLD_ 8: 820-821.The original Latin version of this response from the congregation shows this English translation to be entirely accurate. A copy of the Latin version, incidentally, was graciously forwarded to me by Monsignor James E. Hake, who was the chancellor of Salina in 1975 and remains so today. It was he who made the original inquiry of Archbishop Jean Jadot, the then apostolic delegate to the United States.

30 _Communicationes_ 10 (1978) 86-87.

31 Urban Navarrete, "Sensus verborum 'exquirit' et 'recipit' manifestationem consensus matrimonialis" (c. 1108, §2)," _Periodica_ 83 (1994) 611-634.

32 Ibid, 632-634.

33 _Regulae Iuris_ 68 in VI, 5, 12. See also _regula_ 72 which says: "Qui facit per alium est perinde ac si faciat per seipsum."

34 Anacletus Reiffenstuel, _Ius Canonicum Universum_ (Paris: Ludovicus Vives, l865) 2: 43, n. 59. For the same principle in Roman law see the _Digesta_ 3, 3, 43 §1.

35 Navarrete, 632.

36 More than a year ago now a bishop wrote to the Pontifical Council for the Interpretation of Legislative Texts regarding the following doubt: utrum canon 1108§2 ita intelligendus sit ut referatur tantum ad physicam aut etiam ad iuridicam exquisitionem receptionemque manifestationis consensus. The council promptly responded that, since this was not a genuine dubium iuris but rather a question of the correct application of a law, the council was referring the matter to the Congregation for Divine Worship and the Discipline of the Sacraments, which would issue a response. When a few months passed and the bishop had not received a response, he wrote to the congregation regarding the matter but has not yet received a reply. Perhaps the congregation has concluded that thus far the debate has not resulted in sufficient certitude to warrant its taking a firm position one way or the other.

# ARTICLE THREE

## CANON 1095: A BIRD'S EYE VIEW

I - INTRODUCTORY REMARKS

Canon 1095 is a new creature; the 1917 code contained nothing like it. Basically it says that people who are not psychologically equipped for marriage cannot enter a valid marriage.

Canon lawyers, especially judges, are happy to have the canon. It is one of the important innovations in the new code. At the same time, however, it is quite clear that the canon, in and of itself, says almost nothing. It is very much like saying that one must be strong enough for the task. Well, of course! But the question is: what is the task?

In much the same way, canon 1095 tells us that a person must be strong enough for marriage. But the question is: what is marriage? It is a question that has been asked for centuries The answer has not always been the same.

II - MARRIAGE BEFORE VATICAN II

There are two basic elements to marriage: the _procreational_ element called the" _bonum prolis_ ," and the _personalist_ element, called the " _bonum coniugum_."

As the subject of marriage has been investigated over the centuries by various civil lawyers, canon lawyers and theologians, some have tended to emphasize the _procreational_ element while others have emphasized the _personalist_ element. Let us look briefly at a few examples of each.

A - Those Favoring the Bonum Prolis

1 - _St. Augustine_ (d. 430). St. Augustine, as Theodore Mackin has pointed out,1 was "caught in a kind of crossfire." He lived at a time when two extremist positions were tearing society apart. One opinion said, in effect, that all sex was bad, the other that all sex was good. Augustine attempted to find orthodoxy somewhere in between. Sex, he said, was sometimes good and sometimes bad. Usually bad perhaps. But sometimes good, namely when it is had within marriage for the purpose of procreating offspring.2 Procreation, for Augustine, was the main point of marriage. Etymologically, he noted, the word matrimony is derived from the Latin word for mother \- mater.3 Matermatrimony. When a couple marries, in other words, the woman becomes not so much a wife as a mother. Procreation is what counts. Indeed, in his final essay on marriage, Augustine spelled it out quite clearly. He said: "Therefore the propagation of children is the first, the natural and the legitimate purpose of marriage."4

This Augustinian attitude and theory on marriage was, as we know, immensely influential for hundreds and hundreds of years.

2 - _Gratian_ (1140). When Gratian composed his _Decretum_ , he phrased the question in more legal terms than had Augustine but his conclusion was basically the same. In Cause 27 (the opening cause on the subject of marriage) he wrote, "Let us ask ourselves the question: which sort of consent constitutes marriage? Is it consent to cohabitation or to intercourse or to both?"5

Gratian's answer was that the consent that constitutes marriage is the consent to intercourse. Even the Virgin Mary, he said, consented to carnal intercourse. If she had not, he implied, she would not have been truly married.6 Not that the Virgin actually _had_ intercourse (because she also had a vow of virginity) but she consented to it at the time of marriage and that, says Gratian, is what constituted the marriage.

So once again, an extraordinarily influential author had endorsed the position, even on the basis of the toughest possible case, that the essence of marriage consists not in its personalist but in its procreational aspects.

3 - _Duns Scotus_ (circa 1300). The Scottish Franciscan, John Duns Scotus, in his commentary on the _Sentences_ of Peter Lombard, could hardly have been more explicit or more direct in lending his support to the Augustinian position. He defined marriage itself, the contract of marriage and the sacrament of marriage as follows:

Marriage is an indissoluble bond between man and woman arising from the mutual transferral of power over each other's body for the procreation and right education of offspring.

The contract of marriage is the mutual transferral by man and woman of their bodies for perpetual use in the procreation and right education of offspring.

The sacrament of marriage is the expression of certain words of man and woman, signifying the mutual handing over of power over each other's body for the right procreation of offspring, efficaciously signifying by divine institution the conferral of a grace which is beneficial to each of the contractants for their mutual joining of souls.7

4 - _Wernz_ (1904). In the years just prior to the 1917 code, the idea that marriage consisted basically in the right to intercourse was generally accepted. The Jesuit, F. X. Wernz, reflected that acceptance when he described, in his _Ius Decretalium_ , what pertained to the _essence_ , to the _integrity_ and to the _perfection_ of marriage. He wrote:

As regards the matrimonial contract, the _material object_ is the persons themselves while the _formal object_ (i.e., the aspect under which it is viewed) is the undivided sharing of life. This sharing of life consists principally and _essentially_ in the mutual, equal, exclusive and perpetual right and duty over the spouse's body for the generation and education of offspring, not for any other purposes, but always with the wife being subject to the husband who is her head. Then, in order that that essential communion attain its _integrity_ , the communion of bed and board is necessary but can sometimes be absent without detracting from the essence of marriage. Finally, the _union of souls_ through the mutual love of the spouses, although it is a condition for a happy marriage, nevertheless is not part of the _object of the matrimonial contract_ , nor indeed, could the _marriage bond_ consist in so fickle an element.8

5 - _The 1917 Code_. Given the fact that Wernz was reflecting what, by that time, was the common opinion, the actual wording of the pertinent canons in the 1917 code came as no surprise. Canon 1013 referred to the procreation and education of offspring as the "primary end of marriage" and canon 1081, §2 said that "Matrimonial consent is an act of the will by which each party gives and accepts a perpetual and exclusive right over the body for those acts which are per se apt for the generation of offspring."

With the promulgation of the 1917 code the Augustinian position became "official" and dominated Catholic thought for the next several decades.

B - _Those Favoring the_ Bonum Coniugum

1 - _Roman Law_ (circa 235). Although there have always been influential proponents for the position that marriage is _primarily procreational_ , it is also true that there has always existed a solid tradition in favor of the other position, namely that marriage is, at least in part, _essentially personalist_.

In classical Roman law (and it is, after all, axiomatic that for many centuries, "Ecclesia vivit lege Romana"), there were two commonly accepted definitions of marriage, but neither of them even alluded to children. Both of them spoke only of the personalist aspects of marriage.

The definition in the _Digest_ , attributed to Modestinus, said that "marriage is a union of a man and a woman and a partnership of the whole of life, a participation in divine and human law."9 The definition in the _Institutes_ , attributed to Ulpian, was quite similar. It said that "marriage, or matrimony, is a union of a man and a woman, involving an undivided sharing of life."10

Seeing marriage as primarily personalist was, therefore, firmly rooted in Roman law.

2 - _Hugh of St. Victor_ (d. 1141). Although Hugh of St. Victor has been referred to as the "second Augustine" because of his great indebtedness to the bishop of Hippo, Hugh and Augustine had quite different notions of marriage. David Fellhauer summarized Hugh's position this way. "Hugh," he said,

distinguished between _coniugium_ and _officium coniugii_. The latter remained the obligation of mankind to propagate the human race, which required sexual intercourse. But the former, simple _coniugium_ , was the marital society in itself, in which carnal copula was neither required nor always to be desired. In Hugh's theory the distinction between _coniugium_ and _officium coniugii_ was so pronounced that marriage actually involved two acts of consent, one of the marital society of two persons who lived in a communion of hearts and minds and who loved each other (spiritually, but not necessarily sexually); the other consent was directed to sexual intercourse. These two acts of consent, _consensus coniugalis_ and _consensus coitus_ , ordinarily coincided. But they need not. No one was bound to engage in marital copula, at least when its exclusion was mutually agreed upon. Thus the marriage of the Blessed Virgin and St. Joseph was a complete marriage. And more, it was the perfect marriage, the ideal, in Hugh's opinion. Mary and Joseph were united in a love which was without imperfection; they entered a conjugal society of exquisite closeness and mutual care; and they did not have sexual relations.

What was, then, for Hugh of St. Victor the object of matrimonial consent? It was the _coniugalis societas_ , the community of conjugal life and love. The copula was not necessary; it was not even - if one wished the perfect marriage - desirable. And it did not belong to the essence of marriage.11

Hugh's position, it is clear, was extremely and unrealistically spiritual. It would have to be modified before gaining any sort of widespread acceptance. It was Peter Lombard who took up that work of modification.

3 - _Peter Lombard_ (1158). Peter Lombard completed his _Book of Sentences_ in 1158, became the Archbishop of Paris the following year, and died the year after that. His _Book of Sentences_ was the standard theology text book in the Middle Ages. Most of the major theologians over the next few centuries wrote commentaries on it. It postdated Gratian's _Decretum_ by seventeen or eighteen years.

Peter disagreed with Gratian on the subject of marriage and he stated his disagreement directly. He took Gratian's key question "Which sort of consent constitutes marriage? Is it consent to cohabitation or to intercourse or to both?" and he gave it a different answer. Gratian, as we saw, answered the question by saying that it was consent to carnal intercourse that makes marriage. Peter's response was that "neither the consent to cohabitation nor the consent to carnal intercourse make marriage but rather the consent to the conjugal society."12

So the issue was clearly joined in the twelfth century. It was one giant against another: Gratian against Peter Lombard. Gratian would eventually win, but more eventually, Peter too would have his day.

4 - _Thomas Aquinas_ (1256). Thomas was one of the many theologians who wrote a commentary on Peter Lombard's _Book of Sentences_ , and it is principally in that commentary that we find Thomas' teaching on marriage. Thomas wrote his commentary early in his career while he was lecturing in Paris on the _Sentences_. He was only about thirty years old. The _Sentences_ had been written about a hundred years earlier.

When Thomas arrived at distinction 28, where Peter had posed the question (which Gratian before him had posed) about which sort of consent constitutes marriage, consent to cohabitation or to intercourse or to both, Thomas came down firmly on the side of Peter. "It seems," he said, "that the consent which makes marriage is the consent to intercourse," and then Thomas gives four reasons to support that statement. "But in fact," he says "the contrary is true.... The effect should respond to the cause. But consent is the cause of marriage. Since, therefore, intercourse does not constitute the essence of marriage, it seems that it is not the consent to intercourse that causes marriage. The truth of the matter is this: that the consent that makes marriage is the consent to marriage because the proper effect of the will is the thing willed.... Marriage, however, as noted above, is not essentially the carnal union but rather a certain association of the husband and wife."13

Thomas, therefore, said essentially the same thing as Peter. For Peter the consent that makes marriage is the consent to conjugal society; for Thomas it is the consent to marriage itself, but to the whole of marriage and not just the carnal part of it.

5 - _Thomas Sanchez_ (1605). Although Sanchez may properly be listed in this grouping of "Those Favoring the _Bonum Coniugum_ ," his endorsement of this position is rather ambiguous and equivocal, and thus symbolizes the waning strength of this viewpoint. On the one hand, Sanchez defined marriage as "the undivided, persevering sharing of life so that the purpose of marriage, which is cohabitation, may be attained,"14 but on the other hand, he spoke of "the mutual giving over of bodies" as that "in which marriage consists" and the "increase of the human race," he intimated, was "the principal end of marriage."15

It would seem, therefore, that Sanchez considered the _personalist_ aspects of marriage, "the undivided, persevering sharing of life" as very important, almost as important as the _procreative_ aspects, but not quite. And not quite essential either.

It was a sign, perhaps, that the battle was virtually over. But not the war, of course.

III. PSYCHIC REQUIREMENTS FOR VALID MARRIAGE BEFORE VATICAN II

A - General Remarks

Let it be clear, first of all, that if the essence of marriage consists only in the right to those acts with are per se apt for the generation of offspring, then there can be only one kind of constitutional incapacity for marriage, and that is _impotence_. If, however, the essence of marriage also includes the right to an interpersonal relationship, then there is a second kind of incapacity, namely _incompetence_.16 To this extent, at least, there is a direct connection between a society's notion of marriage and the psychological requirements for marriage.

But even beyond that, even within the narrower limits of the "incapacitas praestandi consensum" itself,17 one would have to assume that all things being equal, the following would be a legitimate rule of thumb: _the more sophisticated a society's notion of marriage, the higher will be the psychological aptitude level demanded of the participants._

Historically, of course, all things have _not_ been equal. At certain times and in certain societies, for example, divorce has been quite acceptable while at other times and places, the damage done by divorce to the immediate and extended family and to society as a whole has been so apparent and so frightening as to make divorce almost unthinkable. Then too, there has been over the centuries a growing appreciation of how emotional disorders impair a person's ability to relate to others. Obviously factors such as these (and many others as well) will exert a strong influence on legislators in their determination of the psychological aptitude levels of marriage that would be appropriate to their own societies.

One would expect, therefore, that the rule of thumb would suffer many exceptions. And so it has. By and large, however, the rule seems to be a generally valid one. In practice, wherever marriage has been viewed as consisting essentially only in the _procreative_ aspect, the psychological requirements for marriage have tended to be low; but where the essence of marriage has also included a _personalist_ element, the requirements have, as a rule, been higher.

The opinions of various authors, jurists and legislators over the centuries regarding the psychological aptitude for marriage fall generally into three categories: the rationality norm, the puberty norm, and the proportionality norm.

B - The Rationality Norm

During most of the Church's history, the rationality norm prevailed. This meant that when a person enjoyed the use of reason, he or she was considered _capable_ of marriage; when, however, a mental disorder deprived a person of the use of reason, that person was considered _incapable_ of marriage.

The following are the highlights in the history of this position.

1 - _Roman Law_ (circa 230). Although Roman Law saw marriage as essentially interpersonalist, its knowledge of mental disorders was quite limited and, largely as a result of that, Roman Law settled on the rationality norm and apparently found it adequate. Among the Romans a person, it seems, was either sane or insane, i.e., mad or "furious," as they said. Sane people possessed the use of reason and could marry. "Furious" people could not. The rule was stated succinctly in what eventually became an axiom, usually attributed to the jurist Paulus. It read "Neque furiosus neque furiosa matrimonium contrahere possunt sed contractum matrimonium furore non tollitur",18 i.e., "Neither the insane man nor the insane woman can enter marriage but once the marriage is contracted, it is not invalidated by subsequent insanity."

The axiom itself did not appear in the _Corpus Iuris Civilis_ but the clear and exact sense of it was stated in slightly different words in the _Digest_ ,19 and it is quite apparent that that was the only rule the Romans had to regulate psychological aptitude for marriage.

Given their total culture it appears to have been sufficient.

2 - _Gratian_ (1140). Gratian's theory, as we have seen above, was that marriage is constituted by the consent of the parties to intercourse. He obviously found the "Neque furiosus" axiom quite compatible with this theory and so, in treating of the psychological requirements for marriage, Gratian simply quoted the ancient axiom (more or less) without explanation of any kind.20 Gratian too, in other words, found it sufficient.

In quoting the axiom, incidentally, Gratian, like Burchard of Worms before him,21 took the liberty of ascribing it to Pope Fabian, a contemporary of Paulus, rather than to Paulus himself. Gratian did this, no doubt, because it better suited his grand purpose of exalting clergy over laity, but according to Daniel J. Boorstin, such a practice was quite acceptable in the Middle Ages. The age of modern historical criticism had not yet arrived and so certain liberties were apparently still permissible. Boorstin writes "Forgery was a prosperous medieval art.... Forgery of documents to support an acknowledged authority was generally considered an act of piety or patriotism. Before falsifying historical documents could have the opprobrium of forgery, it was necessary to believe that the historical past was not a flimsy fabric of myth and legend but had a solid definable reality."22

Gratian, at any rate, agreed with the third century axiom and found it sufficient. Unless a person was violently insane, he or she was capable of marriage.

3 - _Innocent III_ (1205). In the year 1205, Pope Innocent III issued the decree _Dilectus_ 23 in which he said that, if it was really true, as Rufina and her father claimed in the case at hand, that Rufina's husband, Opizo, "suffered from a continuing madness - _continuo furore laborat_ ", then clearly "a legitimate consent could not occur - _legitimus non potuerit intervenire consensus_ " and the couple could separate.

The decision of Pope Innocent is one of the few examples we have over a period of many centuries of an allegation of marriage nullity on the grounds of defect of consent due to a mental disorder. Innocent, like his predecessors, used the simple rationality test.

4 - _Thomas Sanchez_ (1605). Not surprisingly, the position of Sanchez on this point is not entirely clear. As he was ambiguous regarding the essence of marriage, he is likewise ambiguous regarding the psychological requirements for marriage. On the one hand, Sanchez has long been considered not just a proponent but indeed the _chief_ proponent of the simple rationality norm; on the other hand there are certain indications in his writing that he was more inclined towards the puberty norm. It is unclear, for example, whether Sanchez was distinguishing between deliberation and discretion. It is also unclear whether he was applying the rationality norm just to betrothal or to marriage as well. William Van Ommeren discussed the matter at considerable length in his 1961 dissertation.24

It is all quite confusing; but the fact is that, deservedly or not, the name of Thomas Sanchez has always been associated with the simple rationality test.

5 - _Buratti_ (1624). In his book, _Power to Dissolve_ , John T. Noonan, Jr. indicates that, very likely, no marriage sanity case had been presented to the Roman Curia between 1205 (when Innocent III issued his _Dilectus_ in the case of Rufina vs. Opizo) and 1763 (when the Sacred Congregation of the Council, as we shall see under number 6, took up the case of Jose and Ana).25 Van Ommeren, however, does mention one case heard before the Rota in 1624 in which the ponens, Buratti, lent his full support to the simple rationality norm by writing "The madman, the captive in mind and the person destitute of senses are unable to contract marriage if, being entirely deprived of reason or sense, they suffer from permanent insanity or from a defect of sense."26

Buratti's wording was extremely cautious, as though to close off any possibility of moving beyond the simple rationality test. For Buratti, it seems, only the absolute madman was incapable of marriage.

6 - _Sacred Congregation of the Council_ (1763). In the chapter entitled "Captive in Mind," Noonan discusses the case of Jose Ponce de Leon vs. Ana Guzman heard before the S.C.C. in 1763. The marriage of Jose and Ana had actually taken place in 1728 when Ana was 22 years old. There was a great deal of evidence pointing to Ana's insanity. One witness, a stranger to Ana, testified that about a year before the wedding Ana had suddenly approached him, and, with shrill cries and and laughs, told him that the devil would carry him off. Just prior to the wedding, rumors reached Jose's family that Ana "was crazy, had always been crazy and at the present was without improvement." On the wedding night, Ana totally surprised Jose by announcing that she had made a vow of virginity and could not have sex with him. During the months following the wedding, Ana indulged in all sorts of bizarre behavior, including screaming obscenities, running naked in the sight of the household and, while naked, making piles of snow in the garden.

The decision of the S.C.C. was "non constat." The nullity of the marriage had not been proved since Ana might have been enjoying the use of reason at the moment she exchanged consent.27

Even within the limits of the rationality norm, this was an extremely narrow reading.

7 - _Parrillo_ (1928). The simple rationality test seems archaic and medieval to us today but it was vigorously defended, as recently as 1928 by Franciscus Parrillo, the rotal auditor. In a long, thirteen page law section of a negative sentence dated February 16, 1928, Parrillo argued the position in a way that was remarkably similar to the S.C.C. decision of 165 years earlier.28 The simple rationality test was not dead yet.

C - The Puberty Norm

The puberty norm was proposed fairly early on but for many years failed to gain the kind of widespread practical acceptance that the simple rationality norm did, despite the immense authority of its principal proponent, namely:

1 - _Thomas Aquinas_ (1256). In his commentary on Peter Lombard's _Book of Sentences_ , Thomas was crystal clear in stating his position regarding the degree of psychological strength required for various actions, including the entering of marriage.

He divided a person's early life into three seven year periods and then said:

Before the end of the first septennium people are not capable of entering any sort of contract, but at the end of that first septennium they begin to be capable of promising certain things in the future, particularly those things to which natural reason more inclines them, but not of obliging themselves to a perpetual bond since they do not have a firm will; and therefore people are able to contract engagements. But at the end of the second septennium people can oblige themselves to those things which pertain to their own person like entering either religion or marriage. And after the third septennium they can even oblige themselves to those matters that concern other people as well, and after the age of twenty-five people are empowered, in accordance with the law, of disposing of their own belongings.29

Thomas' position that marriage involves obligations that pertain only to one's own person and not to others, seems puzzling to us now. But puzzling or not, the position of Thomas was at least firm and clear: the maturity of at least a fourteen year old was required for entering marriage.

2 - _Schmalzgrueber_ (1719). Among the Romans it was understood that a young person should have reached the age of puberty before marrying,30 and this norm, which had been generally accepted by the Church, eventually found its way into the Decretals of Gregory IX.31

Initially the point of requiring puberty for marriage was, of couse, that marriage essentially involved intercourse and it is at the age of puberty that one becomes reasonably capable of procreative intercourse.

Schmalzgrueber, however, noted that there were two reasons for requiring puberty as a minimum age for marriage:

a - Because marriage induces a greater and firmer obligation than does engagement; and consequently it demands a greater maturity of judgment and a greater freedom of consent.

b - It has been said that the use of reason is sufficient, and that the use of reason is generally present at the end of the seventh year; for marriage, however, besides the use of reason, there is also required the power of generating, that is to say, the capacity for perfect carnal intercourse.32

For Schmalzgrueber, therefore, the degree of discretion usually attained around the age of puberty was required in order to enter marriage.

3 - _Wernz_ (1904). Like Schmalzgrueber, Wernz in his pre-code commentary discussed the degree of discretion required for marriage under the general heading of the age required for marriage. He wrote:

The canonical impediment of age in celebrating marriage is a double defect, namely the defect of discretion of judgment for conjugal consent and the defect of actual potency for generating.33

Wernz then went on to observe that the discretion of intellect sufficient for a valid and licit marriage is presumed present in the boy of fourteen and the girl of twelve.

Wernz, therefore, clearly endorsed the puberty norm, which meant logically that if a person were deprived by a mental disorder of that degree of discretion at the time of marriage, the marriage would be null.

D - The Proportionality Norm

1 - _Gasparri_ (1891). Gasparri wrote the first edition of his treatise on marriage more than a decade before Wernz. Like Wernz, Gasparri too treated the matter of discretion under the impediment of nonage. Unlike Wernz, however, Gasparri broke new ground. He went off in a new direction. He left behind the old puberty norm and demanded instead what he called "due discretion - debita discretio," i.e., a degree of discretion that would be proportionate to marriage and which would require in the contractant a sufficient understanding of the nature, importance and essential qualities of marriage.34

Gasparri's new direction must have seemed, at the time, fairly insignificant. In practice, after all, there was probably little difference between the degree of discretion enjoyed by the ordinary fourteen year old and the degree of discretion proportionate to Gasparri's idea of marriage (which essentially involved only the joining of bodies). Within seventy-five years, however, Gasparri's idea of marriage would be supplanted by Vatican II's idea of marriage (which included the joining of souls), and the degree of discretion proportionate to that sort of marriage would be far greater than Gasparri or any of his contemporaries ever imagined.

2 - _Sincero_ (1911). In a rotal decision dated August 28, 1911, Luigi Sincero endorsed Gasparri's idea of due discretion (though Sincero did not consider it germane in the case at bar) and thereby contributed to the dissemination and acceptance of the Gasparri position.35

3 - _Prior_ (1919). In a rotal decision of November 14, 1919, Prior rejected the Sanchez rule, as he called it (the simple rationality norm), noted that Thomas Aquinas demanded more than Sanchez (the puberty norm), and then himself went on to quote and endorse the Gasparri position (the proportionality norm).36

After Prior, more and more jurists came to accept the proportionality theory as appropriate and reasonable. As long, however, as the object of the proportionality was marriage seen as a procreative union only, the potential of the theory was severely limited. Only if marriage could be seen as both procreative and personalist would the theory be able really to expand and blossom.

To do that, however, it would take an ecumenical council.

IV - THE SECOND VATICAN COUNCIL.

The Pastoral Constitution on the Church in the Modern World, _Gaudium et spes_ , was promulgated by Pope Paul VI on December 7, 1965.

The Constitution saw marriage as consisting essentially of both a procreative and a personalist element; both the _bonum prolis_ and the _bonum coniugum_ , it said, are at the heart of marriage. The council, in other words, rejected the position of Gratian that had been dominating Catholic thought for so long and embraced instead the position of Peter Lombard.

In number 48 of the constitution, for example, we read:

The intimate community of life and conjugal love, which has been established by the Creator and endowed by him with its own proper laws, is rooted in the covenant of its partners, that is, in their irrevocable personal consent. Therefore the institute of marriage, made firm by divine law, arises, even in the eyes of society, by that human act by which the spouses mutually hand over themselves and receive the other; once entered, however, for the sake of both the _bonum coniugum_ and the _bonum prolis_ , as well as of society itself, the sacred bond no longer depends on human decision alone.37

And number 50 concludes with these words:

But marriage is not merely for the procreation of children: its nature as an indissoluble covenant between two people and the _bonum prolis_ demand that the mutual love of the partners be properly shown, that it should grow and mature. Even in cases where, despite the intense desire of the spouses, there are no children, the marriage still perdures as a sharing and communion of the whole of life and remains valid and indissoluble.38

The general tenor of the constitution regarding marriage is well known. In 1965 it was a call to the whole Church to rethink what had become its accustomed position regarding the essence of marriage. The essence of marriage, said the constitution, consists not just in a procreative element but in a personalist element as well.

Besides this fundamental point, however, two other, rather incidental matters deserve mention.

First I suspect that it is not entirely accidental that the very council which promoted collegiality (i.e., decentralization) is also the council which promoted _personalism_ in marriage, whereas Gratian, whose goal was to strengthen the papal hand (i.e., centralization), promoted _procreationism_ in marriage. There is a certain sense, in other words, in which the more monarchical type governments tend to emphasize the _institution_ (where procreation is a prime virtue) whereas the more democratic type governments favor the _individual_ (where personalism is stressed). This, however, is more a sociological than a canonical question.

A second point is this. It is well known that many churchmen, including even some bishops who participated in the Second Vatican Council, vigorously resisted applying _the teaching of the council_ on marriage to _the canon law_ on marriage. The remarks of the council, they said, were pastoral in nature and were never meant to be uprooted and transplanted into a legal or juridical setting. To do so would be to do them violence and would come to no good. History, however, has never been tolerant of such compartmentalization, and before long the inevitable began to happen. Beginning with Lucien Anne's decision of February 25, 1969, there were over the next fifteen years a host of decisions by the Rota and other courts around the world, directly translating the conciliar teaching into jurisprudence. The Commission for the Revision of the Code was, meanwhile, taking the same tack. Father Peter Huizing, the chairman of the Marriage Committee, reported in the 1971:1 issue of _Communicationes_ :

As regards the question of how the personal relationship of the spouses along with the ordering of marriage to procreation should be expressed ... to accord with the Second Vatican Council's description in the Pastoral Constitution on the Church in the Modern World, _Gaudium et spes_ , the majority of the committee finally agreed in affirming the nature of marriage as an intimate joining of the whole of life between a man and a woman which, by its nature, is ordered to the procreation and education of offspring. Following the same constitution, the committee decided that the notion of the primary ... and secondary ends; of marriage) ... should no longer be used.39

So the stage was now set for the drafting of a new Code of Canon Law.

V - THE CODE OF CANON LAW

A - On Marriage

Once the committee agreed to the general philosphy as reported by Huizing, the task was then to incarnate that philosophy in appropriate canons.

This was accomplished particularly in the following areas.

1 - _Nature of Marriage_. Canon 1055 of the new code (the opening canon on marriage) notes that marriage is, by its nature, ordered to both the _bonum coniugum_ and the _bonum prolis_. Interestingly, the _bonum coniugum_ is listed first. The same canon refers to marriage as a "partnership of the whole of life," and notes that it is entered by means of a "covenant." The opening canon on marriage of the old code (c. 1012), used the word "contract" rather than "covenant" and offered no description of marriage whatsoever.

2 - _Ends of Marriage_. The second canon on marriage in the old code (c. 1013, §1) listed the procreation and education of offspring as the primary end or purpose of marriage. The new code simply omits a comparable canon.

3 - _Object of Consent_. Canon 1057, §2 of the new code states that 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. The parallel canon in the old code (c. 1081, §2) described matrimonial consent as an act of the will by which each party hands over and receives the perpetual and exclusive right to the body for those acts which are per se apt for the generation of offspring.

4 - _Ignorance_. Canon 1096, §1 of the new code says that for matrimonial consent to be valid, it is necessary that the contracting parties at least not be ignorant that marriage is a permanent consortium.40 The parallel canon in the old code (c. 1082, §1) required that the contractants recognize marriage not as a consortium but simply as a society.

5 - _Effects of Marriage_. Canon 1135 of the new code notes that each of the spouses has equal obligations and rights to those things which pertain to the partnership of conjugal life. The parallel canon in the old code (c. 1111) referred, instead, to the rights and obligations of the spouses "for those acts which are proper to conjugal life."

All five of these examples, especially when seen in constellation, clearly demonstrate that the vision of marriage held up by the Fathers of the Second Vatican Council has been effectively incorporated into our present Code of Canon Law.

B - On the Psychic Requirements for Marriage

The 1917 code contained no canon that required any particular degree of maturity or psychic health for a person to enter marriage. There was, of course, a canon on the impediment of nonage (c. 1067) and also the canon on ignorance just mentioned (c. 1082), but the old code contained no canon that stated any sort of minimum psychological aptitude required for marriage. As late as 1928, as we saw, one rotal auditor was still applying the old simple rationality test.

In accordance, however, with the rule of thumb mentioned above under III.A, that the more sophisticated a society's notion of marriage the higher will be the psychological aptitude level demanded of the participants, it was clear by 1970 that it would be absolutely imperative for the new code to contain such a canon.

That canon, as eventually promulgated, is canon 1095 and reads as follows:

Canon 1095 - They are incapable of contracting marriage:

1° who lack the sufficient use of reason;

2° who suffer from grave lack of discretion of judgment concerning essential matrimonial rights and duties which are to be mutually given and accepted;

3° who are not capable of assuming the essential obligations of matrimony due to causes of a psychic nature.

In _Annulments and Decisions_ I have referred to the three numbers of the canon as 1°) lack of due reason, 2°) lack of due discretion, and 3°) lack of due competence. Each number deserves a brief comment here.

1 - _Lack of Due Reason_. The tripartite division found in canon 1095 had actually been devised very early on. In the 1971:1 issue of _Communicationes_ , Father Huizing reported that in its early discussions the Marriage Committee had agreed on the following:

Although the principles regarding the incapacity for eliciting valid matrimonial consent are implicitly contained in the present law, it was considered appropriate that they be more distinctly and clearly expressed in the new law. The division would be as follows: the total incapacity of eliciting marital consent because of a mental disorder or disturbance by which the use of reason is impeded; incapacity stemming from a grave defect of discretion of judgment about the matrimonial rights and duties that are to be mutually exchanged; and the incapacity of assuming the essential obligations of marriage due to a serious psychosexual anomaly.41

It is worth noting that Father Huizing referred to lack of due reason as a "total incapacity," as it truly is. It is, indeed, precisely because of this that the ground is virtually ignored by tribunals in their day-to-day practice. Courts tend to resist trying to prove the superfluous, and it is superfluous to show the "total" incapacity of 1° when 2° recognizes that, for an affirmative decision, it suffices to show the "partial" (or, at least, "the not so total") incapacity which comes from lack of due discretion.

Despite what seems a practical tautology, however, the tripartite division has, nevertheless, found its way in to law.

2 - _Lack of Due Discretion_. The English word "discretion" refers to both the intellect and the will. When we say that we leave a matter to another person's discretion, we mean that it is left to both the judgment and the free choice of that person.

The Latin word has traditionally had the same meaning. If one looks up "Discretio iudicii" in Palazzini's _Dictionarium Morale et Canonicum_ , it says see "Capacitas intelligendi et volendi" and when one turns to that heading, it begins by noting that "discretio iudicii" (which is the same phrase used in 1095, 2°) consists of two elements: understanding and willing.42

The meaning of discretion is, therefore, quite clear. It means first of all that a person must understand the duties that are to be assumed, and that secondly he or she freely choose to assume those understood duties.

3 - _Lack of Due Competence_. The statement was made earlier (above, III.A) that when the essence of marriage was understood to consist only in the right to intercourse, then there would be only one sort of constitutional incapacity for marriage, namely the incapacity for intercourse, i.e., impotence. This was certainly logical and was clearly implied in the opening pages of Gasparri's work on marriage.43

It should be remembered, however, that the 1917 code recognized not only the essence of marriage (the right to intercourse) but also two _essential properties_ of marriage (unity, i.e., fidelity, and indissolubility). If, therefore, it were recognized that a person could be psychologically incapable of fidelity or indissolubility, then besides _impotence_ there would be a second kind of constitutional incapacity, namely _incompetence_. So understood, incompetence would, of course, have an extremely limited scope; it would apply only to people who were truly incapable of either fidelity or perpetuity, usually the former.

The concept seems to have been used for the first time by the Rota in a decision given by Alberto Canestri on February 21, 1948. At the time Canestri referred to incompetence as "moral impotence," a term which gained fairly wide acceptance for a time but was eventually discarded. Canestri wrote:

There are men and women who, by reason of an atavistic or hereditary imperfection, or because they are mired in vice or have been poisoned by breathing in the fumes of a corrupt society, are so depraved, especially in the area of sexual desire, that they are rendered incapable of marriage by a kind of impotence, not a physical but a moral impotence.44

Given this background, that incompetence or moral impotence as understood from 1948 on referred primarily to an incapacity for fidelity due to hyperaesthesia, it is understandable that the 1970 draft and even the 1975 draft of canon 1095 spoke of people being incapable of assuming the obligations of marriage _due to a psycho-sexual anomaly_. Once it was realized, however, that the very essence of marriage included the right to an interpersonal relationship, then it was obvious that the phrase "due to a psycho-sexual anomaly" was unduly restrictive and the phrase was dropped. The 1980 draft changed "psycho-sexual anomaly" to "psychic anomaly," and the 1983 code spoke only of "causes of a psychic nature."

According to the present code, therefore, a marriage is rendered null by any psychological reason (even though it is not a "disorder" or "anomaly") whenever that reason or cause renders a spouse incapable of assuming the essential obligations of marriage, especially the obligation of engaging in an interpersonal relationship.

VI - CONCLUDING REMARKS

Canon 1095 of the new Code of Canon Law, taken in context, says certain things but leaves other things unsaid.

It says that in order to enter a valid marriage, a person must enjoy sufficient discretion and sufficient competence for a marital consortium.

Left unsaid, however, is the precise nature of a consortium. Also left unsaid is the meaning of "sufficient discretion" and "sufficient competence"; but it is clear that these latter terms are essentially relational to the former, so that if we knew the precise meaning of the term "consortium" then we would, at least, be well on our way to understanding how much discretion and how much competence would be "sufficient."

The special task for the jurist in our time, therefore, is to determine as precisely as possible the essential elements that go to make up a consortium. We could start,·for example, with the dictionary definitions and look to the right of one spouse to the 1) company, 2) affection, and 3) help of the other. Or we could consider Ombretta Fumagalli Carulli's three "constitutive elements" of conjugal love: 1) recognizing the other as a person endowed with his or her own identity, 2) regarding the other as a person with whom one wants to establish a common life, and 3) wishing the other well.45 My own three components of 1) self revelation, 2) understanding, and 3) loving, which were adapted from Eugene C. Kennedy's "signs of life in marriage,"46 seem to me to be the basic practical skills one must enjoy in order to enter a stable, intimate relationship. And there are several other approaches that deserve consideration as well.47

Above all, perhaps, we should be reading and listening to what married men and women are saying about what it really takes to make it in marriage. Male celibates are not without their own insights into marriage but it certainly makes no sense to listen only and exclusively to them, as we have in fact done for so many years.

Canon 1095 is a useful canon but it leaves much to the "discretion," i.e. to the insightful decisions, of the judges. Not all of us, of course, will understand the canon in exactly the same way but all of us must, at least, be as knowledgeable and as equitable and as responsible and as charitable as, with God's grace, we can be.

1984

Return to TOC

ENDNOTES

1 Theodore Mackin, _What is Marriage?_ (New York: Paulist, 1982), p. 128.

2 St. Augustine, _De Bono Coniugali_ , c. 6; PL 40: 377-378.

3 St. Augustine, _Contra Faustum Manichaeum_ , lib. 19, c. 26; PL 42: 365.

4 St. Augustine, _De Coniugiis Adulterinis_ , lib. 2, c. 12: PL 40: 479.

5 _Decretum_ , C. 27, q. 2, c. 2.

6 _Decretum_ , C. 27, q. 2, c. 3.

7 Duns Scotus, Quaestiones in quartum librum Sententiarum, dist. 26, q. unica ( _Omnia opera_ , Vol. 19, p. 186).

8 Francesco Xav. Wernz, S.J., _Ius Decretalium_ , Tomus IV (Romae: Typographia Polyglotta S.C. De Propaganda Fide, 1904), p. 48.

9 _Digesta_ , 23, 2, 1.

10 _Instituta_ 1, 9, 1.

11 David Fellhauer, "The 'Consortium Omnis Vitae' as a Juridical Element of Marriage," _Studia Canonica_ 13 (1979) 58-59.

12 Peter Lombard, _Libri IV Sententiarum_ , lib. IV, dist. 28.

13 St. Thomas, _In IV Sent_ , d. 28, art. 4.

14 Thomas Sanchez, _De Sancto Matrimonii Sacramento_ , lib. 2, disp.1, n. 8.

15 Ibid., lib. 2, disp. 4, n. 3.

16 Lawrence G. Wrenn, _Annulments_ , p. 7 under B5.

17 As opposed to incompetence, which is the "incapacitas praestandi obiectum consensus".

18 _Fontes Iuris Ante Justiniani_ , II, 345.

19 _Digesta_ , 23, 2, 16.

20 _Decretum_ , C. 32, c. 26.

21 Burchardus, X, 28-29; PL 140: 819.

22 Daniel J. Boorstin, _The Discoverers_ (New York: Random House, 1983), p. 576.

23 X, 4, 1, 24.

24 William M. Van Ommeren, _Mental Illness Affecting Matrimonial Consent_ (Washington: Catholic University of America Press, 1961), pp. 105-132. See also John R. Keating, _The Bearing of Mental Impairment on the Validity of Marriage_ (Rome: Gregorian University Press, 1964), pp. 123-143.

25 John T. Noonan, Jr., _Power to Dissolve_ (Cambridge: The Belknap Press of Harvard University Press, 1972), pp. 154-155. "Apart from Innocent III's decision incorporated in the decretal _Dilectus_ , neither the advocates of the parties nor the Secretary of the S.C.C. were able to refer to any instance of marriage attacked for insanity before any court of the Curia. It would be rash to say that no marriage sanity case had gone to Rome since _Dilectus_ had been issued in 1205, but where precedent is unknown it is as good as nonexistent."

26 _S.R.R.D._ , _coram_ Buratti (Rome, 1624), annot. ad decis. 763, as quoted in Van Ommeren, p. 38.

27 Noonan, pp. 136-158.

28 _S.R.R.D._ 20: 58-71

29 St. Thomas, _In IV Sent_ , d. 27, q. 2, a. 2, n. 7.

30 _Instituta_ 1, 10.

31 X, 4, 2-3.

32 Franciscus Schmalzgrueber, _Ius Ecclesiasticum Universum_ , tom. 4, pars 1, tit. 2. See also tom. 4, pars 1. tit 1, n. 14.

33 Wernz, p. 469.

34 Gasparri, _De Matrimonio_ (Paris, 1891), n. 777. In Gasparri's 1932 edition, see n. 783.

35 _S.R.R.D._ 3: 450.

36 _S.R.R.D._ 11: 173. See also _AAS_ 13 (1921) 56.

37 _Gaudium et spes_ , no. 48.

38 _Gaudium et spes_ , no. 50.

39 _Communicationes 3_ (1971) 70.

40 The word "consortium" is a legitimate word in the English language but, except for this one canon, the CLSA translation has translated it "partnership." See cc. 1055, 1098 and 1135. The _American Heritage Dictionary_ gives, as one of its meanings for the word consortium, "a husband's right to the company, help and affection of his wife (and) the right of the wife to the same." _Webster's New Collegiate Dictionary_ defines consortium as "the legal right of one spouse to the company, affection and service of the other."

41 _Communicationes 3_ (1971). See also _Communicationes 7_ (1975) 41 for the actual 1970 draft. Regarding Huizing's statement about the _implicit_ presence of the notion of incapacity in the 1917 code, see cc. 1035 and 1081, §1.

42 Petrus Palazzini, _Dictionarium Morale et Canonicum_ , 4 vols. (Rome: Catholic Book Agency, 1962), vol. 2, p. 103 and vol. 1, p. 536.

43 Gasparri, §7.

44 _S.R.R.D._ 40: 64.

45 Ombretta Fumagalli Carulli, "Essenza ed esistenza nell'amore coniugale: Considerazioni canonistiche", _Ephemerides Iuris Canonici_ 36 (1980) 216-218.

46 Eugene C. Kennedy, "Signs of Life in Marriage" in _Divorce and Remarriage in the Catholic Church_ , ed. Lawrence G. Wrenn (New York: Newman Press, 1973), pp. 121-133.

47 See, for example, _Decisions_ , first edition, p. 60.

# ARTICLE FOUR

## REFINING THE ESSENCE OF MARRIAGE

This paper will consist of five sections. The first section will discuss the Jemolo case, which was a hypothetical case devised some years ago to test the common understanding of marriage that prevailed at the time. The Jemolo case states the problem. The next section, "Some Preliminary Observations," consists of a half dozen points which try to keep us on the straight and narrow, and so facilitate our attempt to come up with a solution to the problem. The third section attempts to define with some reasonable degree of precision the nature and essence of the marital relationship. This section might be called "A Solution" or perhaps more realistically "Towards A Solution." In the fourth section we will discuss several possible objections to the solution proposed. And finally, some practical applications of the theory will be considered, at least briefly

A - The Jemolo Case

Forty-five years ago the Italian jurist, A. C. Jemolo, asked his students and his readers to think hard about a hypothetical marriage case.1 An honest pondering of the case, Jemolo implied, would necessarily involve a thorough rethinking of the then current understanding of marriage.

The case that Jemolo posed was this: a man marries a woman not primarily out of love or to have a family or for any of the usual reasons; rather he marries her primarily to carry out a vendetta. His principal interest is to be mean and cruel to his wife and to make her pay for all the injuries committed by her family against him and his family.

Is it possible, asked Jemolo, that such an arrangement could ever be considered a valid marriage? The question was, at the time, an intriguing and troublesome one. Under the old code marital consent consisted in the exchange of rights to those acts which are per se apt for the generation of offspring. If in an individual case those rights were exchanged, and if at the same time neither of the essential properties of marriage (unity and indissolubility) were excluded, then a valid marriage would occur.

In terms of the _bona matrimonii_ (the goods or blessings of marriage), all three _bona_ (the _bonum prolis_ , the _bonum fidei_ , and the _bonum sacramenti_ ) could conceivably be present in such a case. Indeed in the scenario posed by Jemolo, the man did intend to have children; he did intend to be faithful to his wife (in the minimal sense that he was not reserving to himself the right to have a lover on the side); and he did intend to cohabit with his wife until death. The man, furthermore, was quite capable of fulfilling all those obligations.

In other words the man did, first of all, have the capacity for marriage as it was then understood, and secondly, he did not simulate marriage either totally or partially. _Technically_ , therefore, he entered what would have to be regarded as a valid marriage.

Yet common sense told Jemolo that such an arrangement could not possibly be called a marriage. This kind of hate-filled vendetta was absolutely and unequivocally unworthy of being considered a marriage, let alone a _sacrament_ of marriage. It is much more like a _Mafia_ contract than a _marriage_ contract; certainly it is not a marriage _covenant_.

The obvious implication, of course, was that if the Church judged that man's vendetta-inspired union to be a valid marriage, then there was something radically wrong with the Church's understanding of marriage. The essence of marriage needed reexamination. Something important, indeed something essential must have been overlooked and omitted. There must be something above and beyond the _bonum prolis_ , the _bonum fidei_ , and the _bonum sacramenti_. And that was the problem: if the marriage of the man bent on vendetta is not a marriage, and surely it is not, then _why_ is it not? In canonical terms, what essential element was lacking in that arrangement which rendered it non-marital, that is to say, something less than a marriage?

B - Preliminary Observations

1 - First I should like to point out what the missing element is not. The missing element is not to be found by looking at a person's motive for marrying. Jurisprudence has always held that an otherwise valid marriage is never rendered invalid simply by an unworthy motive. A person, for example, may marry for money or prestige, or to gain citizenship in a desirable country, or to escape from an unhappy home life, or for countless other less than noble reasons. Such motives, however, do not in themselves invalidate a marriage. Such motives can only affect validity when and if they also exclude the essence of marriage. If, for example, a Polish man married an American woman in order to gain entry into the United States, that motivation would not ordinarily invalidate the marriage. It could invalidate the marriage, if say, the man intended to divorce the woman as soon as he obtained his citizenship, but ordinarily and of itself it would not vitiate the marriage.

It has always been understood, in other words, that the _finis operis_ (in this case the purpose of marriage itself) and the _finis operantis_ (the motive of the spouse in marrying) do not necessarily have to coincide. It is probably nice if they do but they do not have to. All that is absolutely required is that the spouse, for whatever reason, consent to the essence of marriage. This is what is known as the principle of the irrelevancy of motive.

In the Jemolo case the man's motive for marrying was, of course, immoral; but despite this, he did not exclude the essence of marriage as it was understood at the time. He consented to the three _bona_ of marriage and that made the marriage valid. In other words, when we look for the missing element in the Jemolo case, we should look not at the _finis operantis_ but at the _finis operis_ ; we should look to the essence of marriage itself.

**2** \- My second observation flows from the first and is really the other side of the coin. It is the flip side of the principle of the irrelevancy of motive. It is this: just as generally speaking the presence of a bad motive does not result in invalidity, so it is equally true that the absence of a good motive likewise does not result in invalidity.

This, I think, is an important point because it means that if jurisprudence were eventually to conclude that some specific element, for example love, is essential to marriage, then the love that would be at issue would not be the love that motivates people to marry. Courts would not, therefore, declare a marriage null because it had been shown that one or both of the spouses were not "in love" when they married or that they failed to marry for reasons of love. Again motivation is basically irrelevant. Rather, the love that would be at issue would be something intrinsic to marriage itself. It would be part of the object of consent. It would be something the parties consent to.

If, therefore, jurisprudence were eventually to conclude that love is essential to marriage then it would be expected that when people marry, they would agree - even if they were not marrying for reasons of love - that they would be loving persons to each other for the rest of their lives. If therefore love comes to be accepted as essential to marriage, this and only this will be the love we are talking about.

**3** \- My third observation is a direct, if rather vague and quite general, response to the question raised by the Jemolo case. In the Jemolo case the man consented to the _bonum prolis_ , the _bonum fidei_ and the _bonum sacramenti_ and therefore seemed to enter a technically valid marriage. The question is: was there another element, essential to marriage, an element to which the man did not consent, which rendered the marriage invalid? In light of the Second Vatican Council and of the 1983 code, the answer is crystal clear. The answer is that besides the three _bona_ recognized prior to Vatican II, we now know that there is a fourth _bonum_ which is equally essential to marriage, namely the _bonum coniugum_.

Canon 1055, §1, the opening canon on marriage, makes this very clear. It reads: "The matrimonial covenant, by which a man and a woman establish between themselves a partnership of the whole of life, is by its nature ordered to the _bonum coniugum_ and to the procreation and education of offspring...."

Common sense told us all along, of course, that this was the basic problem in the Jemolo case. The man was not intending to be his wife's _helpmate_ but rather her _antagonist_ , and that is what rendered his union a non-marriage. This was not so clear in 1941 as it is now. Now it is clear that there are not three essential _bona_ but four. The precise, exact, detailed meaning of the _bonum coniugum_ we shall try to clarify during the course of these remarks, but for the present I would simply like to make the point that the _bonum coniugum_ , whatever it involves, is definitely and certainly an essential element of marriage.

**4** \- I would note, fourthly, that, except for indissolubility, it is really inaccurate to say that the _bona matrimonii_ themselves pertain to the essence of marriage. It is rather the right, the ius ad bona matrimonii, that pertains to the essence. Take the _bonum fidei_ , for example. It is not really fidelity but rather the _right_ to fidelity that pertains to the essence of marriage. If this were not so, if fidelity itself pertained to the essence of marriage, then part of the essence of marriage and therefore the marriage itself would cease to exist whenever a spouse was unfaithful; that, of course, is not true.

The same is true, of the _bonum coniugum_. Strictly speaking it is not the _bonum coniugum_ but the right to the _bonum coniugum_ exchanged at the time of the wedding that belongs to the essence of marriage. It is, therefore, the actual pledge of the spouses to contribute to their mutual welfare that is essential and constitutive of a valid marriage. If at some later time the actual, de facto _bonum coniugum_ should dissipate - if, for example, the couple's love for each other should turn to hate - that disappearance of the _bonum coniugum_ would not invalidate or dissolve the marriage. What is essential is not the _bonum coniugum_ but rather the right to the _bonum coniugum_.

**5** \- A fifth preliminary observation is this. The specific components of the _bonum coniugum_ might differ from culture to culture. It is quite possible, for example, that conjugal love would be considered an essential component of the _bonum coniugum_ in the twentieth century whereas it would not have been regarded as absolutely essential in the eighteenth century.

This was a point made by Lucien Anne in his famous decision of February 25, 1969.2 It strikes me as a valid and practical observation. It means, for example, that as we turn our attention to the task of determining the precise components of the _bonum coniugum_ , it is not necessary that we arrive at some sort of pure, universal essence that would be applicable for all places and for all times. Rather it would suffice if we could identify with reasonable preciseness the components of the _bonum coniugum_ for this time and this place, that is to say, for our own culture and our own civilization.

**6** \- My final preliminary observation is a simple word of caution, namely that in our attempt to locate and identify the exact dimensions of the _bonum coniugum_ for our culture, it is important that we avoid being either too generous or too stingy, too inclusive or too exclusive.

The Jemolo case made it clear that the 1917 code had sinned by being too exclusive, that in excluding the _bonum coniugum_ from the essence of marriage it had artificially truncated the notion of marriage and deprived it of some of its essential richness. The canonists of the early twentieth century fell into a trap regarding the essence of marriage. Now that that error has been corrected we do not want to fall into a similar trap, this time regarding the essence not of marriage itself but of the _bonum coniugum_. On the one hand _we do not want to say_ , "Yes, the _bonum coniugum_ is essential but the _bonum coniugum_ means only that the spouses should be civil to each other." On the other hand, neither do we want to say, "The _bonum coniugum_ is essential and that means that the spouses must be madly in love with each other or there is no marriage." These two extremes must be avoided. The challenge will be to find the truth, which will not necessarily be exactly in the middle but should, at least, be somewhere between the two extremes.

C - Towards A Solution

Over the years jurisprudence has defined with reasonable precision the sense of the three traditional _bona_. The _bonum prolis_ refers to the right of the parties to non-contraceptive intercourse; the _bonum fidei_ refers to the right of the parties to be their spouse's only sex partner; the _bonum sacramenti_ refers to the indissolubility of marriage.

The essence of the fourth _bonum_ , the _bonum coniugum_ , however, is not yet so clear. Does it refer to the right of the parties to simple, basic goodwill from their spouse? Or does it go so far as to include a right to a romantic, passionate love?

As with the other _bona_ , a clarification of this issue will come gradually through the work of jurisprudence. But in this section of the paper I would like to discuss six of the more obvious qualities that might constitute the essence of the _bonum coniugum_. They are partnership, benevolence, companionship, friendship, caring, and finally love.

1 - Partnership

Since marriage is a consortium and the usual translation of "consortium" is partnership, and since canon 1135 says that "each of the spouses has equal obligations and rights to those things which pertain to the partnership of conjugal life," it might seem that that quality of partnership constitutes the nucleus of the _bonum coniugum_.

Justice Story defined a partnership as "a relation existing between two or more competent persons who have contracted to place their money, effects, labor and skill, or some or all of them, in lawful commerce or business with the understanding that there shall be a communion of profit among them." In a more general sense a partner is anyone who has a part in something. A partner is a partaker, a sharer, a participant, an associate, or a colleague.

In light of all this it is clear, I think, that partnership is a pretty impersonal, business-like arrangement. Still there is something to be said for it. In terms of the Jemolo case one would be hard pressed to say that the man in that case recognized the woman as a true partner. On the contrary, he treated her not as a partner but as a victim. Certainly he did not intend her to share in what Justice Story called the "communion of profit among them." So even if jurisprudence had, in those days, recognized that much, namely that the essence of marriage required a true partnership, then the union proposed by Jemolo could easily have been declared null according to the then accepted rules of jurisprudence.

Mere partnership would therefore seem to have solved the Jemolo case. But that was forty-five years ago and since then the question has shifted somewhat. What we want to know now is whether it can be said that partnership is the special quality that constitutes the nucleus of the _bonum coniugum_. The answer, I think, is no. Since the Second Vatican Council, it seems to me, mainstream jurisprudence has concluded that mere partnership, that is, merely being a colleague, is not enough; some interpersonal relationship is required as constitutive of the essential nucleus of the _bonum coniugum_. Mere partnership therefore is too impersonal and too businesslike to qualify even as the bare minimum that would be required for a valid marriage.

2 - Benevolence

Benevolence, otherwise known as goodwill, seems to suffer from the same basic defect as partnership: it is too impersonal to constitute the essence of marriage. Marriage is now recognized as being an interpersonal relationship of some depth and intensity. But this is not what benevolence is.

Benevolence is defined in Webster's as the "kindly disposition to do good and promote the welfare of others: goodwill." Given that definition it would seem that the people who would appropriately exercise benevolence would be, not husband and wife toward each other, but rather benefactors and philanthropists toward their beneficiaries. Benevolence, I take it, can be present and even practiced without even knowing who the beneficiary is. It seems evident, therefore, that mere benevolence or goodwill would necessarily fall far short of what is required in order to have a true _bonum coniugum_. It is not enough, in other words, for husbands and wives to treat each other as beneficiaries. Some degree of personalism is absolutely essential in marriage.

Thomas Aquinas, incidentally, made a clear distinction between love on the one hand and goodwill or benevolence on the other. Love, he said, involves much more than simply wishing a person well. Goodwill, he said, is neither friendship nor love but just the beginning, just the first step or groundwork of friendship, the _principium amicitiae_.3

One would of course expect spouses to exercise goodwill toward each other, but one would also expect more. Mere benevolence is not enough to constitute a real marriage.

3 - Companionship

Companionship is more personal than benevolence and to that extent is closer to what might constitute the nucleus of the _bonum coniugum_. The word "companion" comes from "cum" and "panis". A companion, therefore, is one with whom you break bread. He or she is not some nameless beneficiary of your kindness but rather an acquaintance with whom you spend time and share experiences on the great journey of life.

C. S. Lewis suggests that companionship is a product of the gregarious instinct in human nature, and notes that it might also be called "clubbableness" since companionship is the kind of thing shared by men and women at the golf club or even in the barroom.4 Companionship, however, is something less than friendship. It is, you might say, the matrix of friendship in that given the right people and a shared interest, friendship might grow and develop out of it. But companionship is not so rich or so deep as friendship. Friendship is gold; companionship is silver.

But the jurisprudential question is whether the _bonum coniugum_ could be said to be present if, at the time of the wedding, the spouses consented not to love one another or even to be friends, but simply to be companions. The famous decision of November 29, 1975 of the five Signatura judges in the Utrecht case answered in the affirmative.5 In the opinion of those judges _communio vitae_ meant nothing more than the _communio thori, mensae et habitationis_ of the old canon 1128. In that view, in other words, a spouse was precisely a companion, or more precisely a sexual companion, that is to say, one with whom the other party broke bread and had sex, one with whom bed and board were shared.

Since that time, however, mainstream jurisprudence has, I think, come to require more than that. The present view is that spouses must share not just bed and board but they must share their whole lives as well. Marriage is a _consortium totius vitae_ , as canon 1055 says. It is a sharing not just of externals but of the internal lives of the spouses as well, a sharing of their thoughts and feelings and, in some way, of their very selves.

Mere companionship, therefore, is not enough to constitute the _bonum coniugum_.

4 - Friendship

St. Thomas says that there are five things that pertain to friendship: we should wish our friends well (benevolence); we should wish them to be and to live; we should take pleasure in their company (companionship); we should make choice of the same things; and we should grieve and rejoice with them.6

Clearly for Thomas friendship includes such things as benevolence and companionship, but it is also something over and above those things and is distinct from both of them. Friendship, furthermore, is likewise distinct from love, at least from the love of lovers. C. S. Lewis notes the following differences between friendship and love. First, lovers are always talking to each other about their love, whereas friends hardly ever talk to one another about their friendship. Second, lovers are normally face to face, absorbed in each other, whereas friends tend to stand side by side, absorbed in some common interest. Third, love is an exclusive relationship between two people only, whereas in friendship two friends delight to be joined by a third, and three by a fourth."True friendship," says Lewis, "is the least jealous of loves."7

So once again we come to the jurisprudential question: what is it that constitutes the essence of the _bonum coniugum_? Is it enough if the spouses pledge to be each other's lifelong friend, even each other's _best_ friend forever?

Friendship, as we noted, is golden. It is a _wonderful_ , noble thing and has been extolled by many of history's greatest poets and philosophers. But in spite of that, the right to friendship, it seems to me, still falls short of what is necessary for a valid marital relationship, principally because the marital relationship must have a certain exclusive quality about it whereas friendship, by definition, is not exclusive but inclusive.

Spouses should certainly be friends, just as they should be benevolent partners and companions. But none of those qualities, taken either separately or together, is sufficient to constitute the essential nucleus of the _bonum coniugum_. For that something more is required.

5 - Caring

The verb "to care" has many meanings. It is, first of all, often used as a synonym for love. Morton T. Kelsey, for example, has written a book which has as its title _Caring_ , but as its subtitle, _How Can We Love One Another?_ In fact, this book entitled _Caring_ is really all about _loving_. Second, caring can denote a burdensome sense of responsibility and solicitude, or trouble caused by duties, and in that sense we speak of a "careworn face." Third, it can mean to have charge of or to be responsible for, as a doctor or nurse cares for a patient and a shepherd or pastor cares for the flock. In this sense it is the opposite of apathy.

The classic, popular discussion of the subject is in a little book called _On Caring_ written by Milton Mayeroff. Mayeroff, in effect, adopts the third meaning of the term, namely to be responsible for something or someone. More precisely, Mayeroff defines caring as "helping the other grow,"8 which is basically what the doctor, nurse, shepherd and pastor do. Rollo May, in his book _Love and Will_ , adopts this same meaning of the term. May writes, "if I care about being, I will shepherd it with some attention paid to its welfare."9

Seeing care as "helping the other grow" is, in fact, a very ancient way of viewing care. Martin Heidegger recounts this ancient parable in which care is portrayed as a shaper and molder of the human being, or to use Mayeroff's expression, as one who helps another grow:

Once when "Care" was crossing a river, she saw some clay; she thoughtfully took up a piece and began to shape it. While she was meditating on what she had made, Jupiter came by. "Care" asked him to give it spirit, and this he gladly granted. But when she wanted her name to be bestowed upon it, he forbade this, and demanded that it be given his name instead. While "Care" and Jupiter were disputing, Earth arose and desired that her own name be conferred on the creature, since she had furnished it with part of her body. They asked Saturn to be their arbiter, and he made the following decision, which seemed a just one: "Since you, Jupiter, have given its spirit, you shall receive that spirit at its death; and since you, Earth, have given its body, you shall receive its body. But since "Care" first shaped this creature, she shall possess it as long as it lives. And because there is now a dispute among you as to its name, let it be called homo, for it is made out of humus (earth)."10

In saying that care "shall possess it as long as it lives," this ancient parable implies that the human being is essentially and irrevocably constituted as a caring person. This is certainly an upbeat, optimistic anthropology that suggests that our common vocation as human beings is to help one another grow. We are all called to care for one another. Caring is seen, therefore, as a kind of primordial human disposition.

But having said that, let us return once again to the jurisprudential question. In order to exchange the right to the _bonum coniugum_ what precisely is it that the spouses pledge to do? Is it that they pledge themselves to be caring spouses to each other?

I think it is not, and the reason I think it is not is this. In order to bring about the _bonum coniugum_ it is essential that the spouses not only care for each other, that is, help each other grow; it is also necessary that they allow themselves to be cared for. Caring, in other words, is only half the process. In the helping professions and in many other situations as well, caring alone works fine and can be a beautiful thing. But in close interpersonal relationships including marriage, caring alone (without a corresponding openness to be cared for) can be destructive.

Woody Allen's movie _Hannah And Her Sisters_ is, I think, a clear illustration of this. _Hannah And Her Sisters_ , as the title implies, is about the relationship of Hannah (played by Mia Farrow) with her two sisters, Lee and Holly. But it is also about Hannah's relationship with her two husbands, her first husband being Woody Allen, her second Michael Caine.

Hannah is a charming, efficient, accomplished, caring, thoughtful, considerate, self-sufficient, wonderful person. She has given up a career on the stage in order to have a family but in the course of the movie returns to do a single play on Broadway for which she gets rave reviews. She also deserves rave reviews as a homemaker and mother and she is, in general, a marvelous person, totally in control of her own life and always willing to help others.

The only problem is that she somehow manages to undermine everybody around her. Hannah and her first husband, Woody Allen, (as we see in flashbacks) are unable to have children and when they go to a doctor in an attempt to remedy the situation they find that Woody is incurably sterile. Hannah's second husband, Michael Caine, is deeply in love with Hannah. But at one point he says to her "It's impossible to live with someone like you, who is so giving but who has no needs of her own," and he goes out and has an affair with Hannah's sister Lee. Lee is a good person but is so overwhelmed by Hannah's flawlessness that she first lives with a totally antisocial, intellectual artist, and then has her fling with Michael Caine. Then there is Holly who, like Lee, is overpowered by Hannah and becomes a drug addict and can never figure out what she wants to do with her life. Interestingly, though, before the movie ends, Holly marries Woody Allen and, lo and behold, she becomes pregnant by Woody who, when he was with Hannah, was regarded as incurably sterile.

The message, I think, is clear; namely, in close interpersonal relationships, caring alone is not enough. Unless, indeed, it is coupled with a willingness to be cared for, caring alone can be a destructive and sterilizing thing in an institution like marriage. When, however, caring is in fact coupled with an openness to being cared for, then it is no longer called caring but something else, namely love.

6 - _Love_

Love, as we know, is a many splendored thing; but in our context, at least, it may be defined as an affective tendency toward another person which is dialogical in nature and which involves union with the other.

To describe love as an "affective tendency" is to distinguish it immediately from infatuation. A tendency is just an inclination or a propensity, and connotes perhaps a strong and eager but nevertheless a somewhat gentle movement, whereas infatuation involves a kind of dizzy, careening, uncontrolled, raging flame of desire. Etymologically the word infatuation comes from the Latin _fatuitas_ , which means "foolishness"; love, on the other hand, is the most unfoolish thing in the world.

The phrase "affective tendency" also distinguishes love itself or simple love from romantic love. In her book _The Theology of Romantic Love, A Study in the Writings of Charles Williams_ , Mary McDermott Shideler notes that romantic love always begins with the shock of an intense personal experience and then causes the lover, both in body and mind, to function as a whole person, as an integrated entity, focusing all his or her powers on the beloved. It is the kind of love that Dante had for Beatrice and, in our century, the kind of love that Wally Simpson and King Edward VIII seem to have had for each other. But as Shideler points out, that kind of romantic, heroic love is not the only love. "Sweetness and serenity," she says, "quiet affection and gradual development, belong as truly to the Kingdom of Love as do the tumults of the romantic encounter. The absence of the romantic response to experience implies no disparagement, because this can be a difference in style of loving, rather than a difference in degree or depth of love."11

Finally, the term "affective tendency" also distinguishes love from a completely cooled down, business-like experience that pertains only to the mind and the reasoning faculty. Love is affective. It involves the heart and the emotions. St. Thomas treats of love under the heading of the soul's passions12 along with hatred, desire and aversion, joy and sorrow, hope and despair, fear and daring, and anger. Love, said St. Thomas, pertains to the appetite,13 is rightly classified as a passion,14 can easily lead to ecstasy,15 and involves a "union of affection, without which," he says "there is no love."16

Love, therefore, is neither infatuation nor romantic love on the one hand, nor is it a kind of intellectual esteem or respect on the other. It is rather an affective tendency.

The second part of the definition of love notes that is is dialogical in nature. Unlike caring, therefore, which in itself is a kind of monologue, love is seen rather as a conversation, a dialogue. It involves two axes or poles in each person around which the love flows.

These two poles were called by Aquinas _amor concupiscentiae_ and _amor benevolentiae_ ,17 which Karl Rahner translates respectively as love of desire and love of generosity.18 Love of desire, as the term implies, involves desiring the other as a source of legitimate self-fulfillment, whereas love of generosity involves wanting the best for one's beloved for the beloved's own sake. In all healthy human love, however, both poles coexist and are more or less constantly active. In all healthy human love there must be both giving and receiving. Love is essentially an exchange. Contrary to the axiom, the fact is that it is not always more blessed to give than to receive.19 Human love, at any rate, cannot exist without both.

Finally let me mention briefly the third element in the definition of love, namely that it involves union with the other. Thomas devotes a separate article to this, noting that every love is a unitive force and that both poles, the love of desire and the love of generosity, are each in its own way creative of a unity between the lover and the beloved. Love is always a bonding force that makes for communion and, in some sense at least, makes two people one.20

If one were to list reasons in favor of the position that the essence of the _bonum coniugum_ consists in the _ius ad amorem_ , this perhaps would be the first, namely that both marriage and love have the same effect. They both create a bond between people; in both cases, the two people become one. In marriage they become one _flesh_ which is not necessarily true in all love. But this, I think, is the point. Whereas it is all right for two people to become one without being one flesh, it is not all right for two people to become one flesh without their first having become one. It is all right, in other words, for two people to love each other without being lovers, but it is not all right for people to become lovers unless they love each other. In marriage the spouses have a right to have intercourse, but there is something wrong (and probably immoral) if they have intercourse without loving each other.

This is the fundamental reason why the _bonum prolis_ and the _bonum coniugum_ go hand in hand and are inseparable: because the essence of the _bonum coniugum_ is the _ius ad amorem_ , and unless that is present it is not right to have intercourse. It perhaps even explains why in canon 1055, §1, the _bonum coniugum_ is mentioned first and the _bonum prolis_ second: because people should commit themselves to loving each other before they make love.

A second reason in support of the essentiality of the _ius ad amorem_ is the importance assigned to love in papal encyclicals, notably _Casti connubii_ (n. 23) and _Humanae vitae_ (nn. 8-9). In the former Pius XI referred to love as that "excellent soil" in which conjugal faith has rooted and he noted that "love of husband and wife ... pervades all the duties of married life and holds pride of place in Christian marriage." In the latter Paul VI noted that marital love was part of God's loving design, and that its characteristic features are that it be fully human, total, faithful, exclusive and fruitful.

A third reason for saying that the _bonum coniugum_ consists in the parties pledging to be loving persons to each other is found in the Second Vatican Council's _Gaudium et spes_ (nn. 48-50) which assigns to love an absolutely central and pervasive role in marriage, and which describes marriage as "an intimate community of life and love."

A fourth reason is the one developed by Theodore Mackin. He points out that if love is not essential to marriage, then the sacrament of matrimony is lacking a matrix.21 St. Paul pointed out in the fifth chapter of Ephesians that the love of wife and husband in marriage is the symbol of the love between Christ and the Church. Marriage is a sacrament precisely because it images the love of Christ and the Church, but unless love or the right to love is regarded as essential to marriage, then marriage is incapable of performing that imaging function, and without the imaging function there is no sacrament. To put it another way, how can a couple symbolize the love of Christ and the Church unless they pledge to love one another?

Finally, a fifth reason is that marital consent, as defined in canon 1057, §2, is, as Urban Navarrete said, "essentially an act of love."22 The canon says that "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 ( _sese mutuo tradunt et accipiunt_ ) in order to establish marriage."

The canon, it should be noted, does not say simply that the parties mutually _give_ themselves to each other. Rather it seems to go out of its way (as did _Gaudium et spes_ ) to state quite exactly that parties "mutually _give and accept_ each other" which, as we have seen, is precisely what love is. It seems quite clear, therefore, that, according to canon 1057, what the parties consent to at the time of marriage is to love each other.

So much for a brief statement of the position. Let us look now at some possible objections.

D - Some Objections

**1** \- A first objection to love ever being regarded as essential to marriage is that Pope Paul VI, in his allocution to the Rota on February 9, 1976,23 seemed to indicate that that can never be the case. Pope Paul took issue, in that allocution, with those people who "consider conjugal love as an element of such great importance in law ... that they subordinate to it the very validity of the marriage bond" and he also noted that "conjugal love is not included in the province of law."

When, however, the entire allocution is read, it is clear that there is no real conflict between the position of Paul VI and the position taken in this paper. Paul was making the point that it is consent and only consent that makes marriage, and once that consent is given an indissoluble bond is created. Whether the parties are in love prior to marriage or whether they fall out of love afterwards is juridically irrelevant.

That, of course, is entirely true but in no way does it differ from our position. Our position does not claim that love is essential to marriage. Rather it claims first that the right to the bonum coniugum is part of the essential object of marital consent, and second that the bonum coniugum consists not in partnership, companionship, caring, etc., but rather in the love of the parties for each other.

Once, however, the parties consent to marry and pledge to love each other, the marriage is then valid; it remains valid, of course, even if their commitment to love later disappears.

**2** \- Another objection to our position is that whatever is consented to in marriage must be under the control of the will; love, however, is an affection or an emotion and, as such, is not under the control of the will. This is a point made by Bishop Zenon Grocholewski, Secretary of the Signatura, in his 1979 _Periodica_ article.24 How, he asks, can people oblige themselves to be affectionate? Either we are affectionate or we are not. We cannot just decide to be affectionate and then be so. Human nature does not work that way.

St. Thomas, however, states quite clearly that human nature in fact does work that way. Thomas takes up the question in several places25 and he concludes that love may be viewed as residing either in the sensitive appetite or in the rational appetite. Even when it is in the sensitive appetite, however, love is under the command of the will. Thomas concludes, in other words, that a person's love is free and voluntary and can, indeed, even be measured. He notes, for example, that a man should love his wife more intensely than he does his parents, but he should love his parents with greater reverence than he does his wife.

It would seem, therefore, at least according to Thomistic psychology, that love is subject to the will and can therefore be something that is consented to in marriage. There is nothing inappropriate about spouses committing themselves, at the time of marriage, to being loving persons.

**3** \- In that same 1979 article Bishop Grocholewski made another point which would certainly contradict my own position, so let me list that as objection three.

Grocholewski first of all recognizes that the _ius ad amorem_ is essential for a valid marriage. For him, however, the essential nucleus of love is not love as we have defined it, namely as an affective tendency which is dialogical in nature. For Grocholewski, the essential nucleus of love includes no affectivity and no receiving, but only giving, non-affective giving.26 By love, in other words, he means, if I understand him correctly, benevolence or, at the very most, caring (though he does not use that word). When people marry, according to Grocholewski, they give each other the right to benevolent acts and to a benevolent disposition, that and nothing more.

I would answer that objection, I think, by briefly recapping my earlier remarks about benevolence or goodwill. Benevolence, as Aquinas noted, is not love and it should not therefore be dignified with the title of love. Grocholewski calls benevolence love by confusing, as I see it, _benevolentia_ with _amor benevolentiae_ , which, as I tried to point out earlier, are two entirely different things. Benevolence, indeed, is not even friendship but only the _principium amicitiae_. In itself benevolence is an impersonal thing. It would seem, therefore, that benevolence by itself could not constitute the essential element of the _bonum coniugum_ , which is generally regarded today not just as an interpersonal relationship but as an interpersonal relationship of some intimacy.

**4** \- This brings me to the fourth objection and it is this. The 1983 Code of Canon Law studiously avoided incorporating Vatican II's well known description of marriage as an "intimate community of life and love." The studious avoidance of the phrase strongly suggests that the legislator found notions like intimacy and love to be unacceptable or unworkable within a legal framework. It suggests, in other words, that love might be grand in real life but that it has no legal relevancy and is out of place in a legal setting.

This objection first of all smacks of legal positivism in that it implies that the written law is all important, certainly more important than justice or what is right and suitable for the community. But beyond that the fact is, I think, that the code simply wanted to leave the issue open. If it had included Vatican II's phrase, then it would at least to a large extent have closed off discussion; we would all be expected to accept the essentiality of love to marriage. Clearly, however, the world of canon law was not ready to do that in 1983, nor is it in 1986. The whole subject needs lots more thought and discussion. But the point is that we should not read more into the code's non-inclusion of the phrase than it merits. It means only that the subject is open to development, or non-development - through jurisprudence, books, articles, and so forth.

**5** \- One last objection is the one proposed by Monsignor Palazzini in his Rotal decision of June 2, 1971, namely that if love were regarded as essential, how would jurists ever figure out what degree of love would have to be lacking before nullity would result? Would nullity result from a partial lack of love or only from a total lack? Would the defect have to be absolute or might relative suffice? How severe would the limitation have to be on the intensity of love before it would result in nullity? These, said Palazzini, are the "absurd consequences" of recognizing love as essential to marriage, and they demonstrate how illogical such a position is.27

The point is well taken but perhaps exaggerated. On almost all grounds, after all, judgment calls are needed. That is what judges are for. In a force and fear case, for example, how much force is required before nullity results? In a _contra bonum prolis_ case, how intense must the contraceptive intent be before it is considered to have prevailed over the marriage covenant? In a lack of due discretion case, how much discretion is "due" discretion? And so forth.

If the _ius ad amorem_ comes to be regarded as essential to marriage it will no doubt be difficult for judges at first. But a sound jurisprudence will soon develop and we will soon be able to make reasonable judgments about what it means exactly when we say that, in order to enter a valid marriage, the parties must intend to be loving spouses to each other.

E - Practical Implications

If the _ius ad amorem_ , the right to a loving relationship, came to be accepted as essential, the implications for jurisprudence would, I suppose, be rather obvious. Basically it would mean that the three grounds of lack of due competence, lack of due discretion, and simulation would all be expanded by one notch. If a person were judged to have lacked the capacity at the time of marriage to be a loving person to his or her spouse, that person would be considered to have lacked due competence. Or if a party did not maturely evaluate and freely accept love as one of the essential rights and duties of marriage, that person would lack due discretion. Or if, finally, a party excluded by a positive act of the will the _ius ad bonum coniugum_ (having love as its essential ingredient), then that person would simulate marriage.

But even beyond the somewhat narrow tribunal implications of this position, there is also a broader implication here; it would bring into harmony the _lex orandi_ and the _lex credendi_. In _Mediator Dei_ (nn. 46-48) Pius XII warned against possible abuses of the "lex orandi, lex credendi" axiom but he also noted that the liturgy is very definitely a "locus theologicus" and a legitimate criterion of faith. The liturgy, in short, is a teacher of doctrine.

There is no question, it seems to me, but that the marriage liturgy (the prayers of the wedding Mass and the wedding rite itself) portrays love not just as important to marriage, but as essential to it. Love is at the core of the wedding liturgy. The wedding rings are said to be a sign of the bride and groom's love and fidelity, and throughout the ceremony God is implored over and over again to bless their love and to make them one in their love for each other. Furthermore, canon 1063, 3° (a very significant canon, it seems to me) specifically notes that the wedding liturgy should clarify "that the spouses signify and share in that mystery of unity and fruitful love that exists between Christ and the Church."

If, therefore, the _ius ad amorem_ came to be generally recognized in law as essential to marriage, then law and liturgy (not to mention sacramentology) would finally come together, and that, it seems to me, is right and just, _dignum_ , and above all, _iustum_.

1986

Return to TOC

ENDNOTES

1 A. C. Jemolo, _Il Matrimonio nel Diritto Canonico_ (Milano: Casa Editrice Dr. Francesco Vallardi, 1941), p. 76.

2 _S R R_ Dec. 61 (1969) 184. For an English translation see Lawrence G. Wrenn, _Decisions_ , 1st ed. (Toledo: CLSA, 1980), p. 100. See also Thomas Aquinas, _ST_ , Suppl. Q. 41, a. 1, especially ad 3; Q. 42, a. 2 and Q. 65, a. 2.

3 _ST_ , IIa \- IIae, Q. 27, a. 2, sed contra.

4 C. S. Lewis, _The Four Loves_ (New York: Harcourt-Brace-Jovanovich, 1960), pp. 95-96.

5 _CLD_ 8: 778-781, under VI, a.

6 _ST_ , IIa-IIae, Q. 27, a. 2, obj. 3.

7 Lewis, pp 91-92.

8 Milton Mayeroff, _On Caring_ (New York: Harper and Row, 1971), p. 8.

9 Rollo May, _Love and Will_ (New York: W.W. Norton, 1969), p. 290.

10 Martin Heidegger, _Being and Time_ (New York: Harper and Row, 1962), p. 242.

11 Mary McDermott Shideler, _The Theology of Romantic Love_ (New York: Harper and Brothers, 1962), pp. 36-37.

12 _ST_ , IIa-IIae, Q. 22-28.

13 Ibid., Q. 26, a. 1.

14 Ibid., Q. 26, a. 2.

15 Ibid., Q. 28, a. 3.

16 Ibid., Q. 28, a. 1.

17 Ibid., Q. 26, a. 4.

18 Karl Rahner, _Theological Dictionary_ (New York: Herder and Herder, 1965), p. 266.

19 Shideler, p. 126.

20 _ST_ , IIa-IIae, Q. 28, a, 1.

21 Theodore Mackin, _What Is Marriage?_ (New York: Paulist Press, 1982), pp. 332 ff.

22 Urbanus Navarrete, "Structura Iuridica Matrimonii Secundum Concilium Vaticanum II" _Periodica_ 57 (1968) 208.

23 _CLD_ 8: 790-795.

24 Zenon Grocholewski, "De 'communione vitae' in novo schemate 'de matrimonio' et de momento iuridico amoris coniugalis," _Periodica_ 68 (1979 ) 474.

25 _ST_ , Ia, Q. 83, a. 1; Ia-IIae, Q. 6, a. 8; Q. 17, a. 7; Q. 24, a. 1; Q. 26, a. 1 and 2; Q, 28 a. 3; and IIa-IIae, Q. 26, a. 11.

26 Grocholewski, p. 469.

27 _SRR_ Dec. 63 (1971) 471.

# ARTICLE FIVE

## URBAN NAVARRETE, S.J. AND THE RESPONSE OF THE CODE COMMISSION ON FORCE AND FEAR

When I was studying canon law at the Lateran in the late 1950s it was understood that the goal of our education was to form what was called the "legal mind." It meant that learning canon law involved much more than just learning the 2414 canons. It meant that one should have a sense of how law might contribute to the welfare of the Church and to the "salus animarum." It meant knowing where a law came from, how it was related to its immediate family of laws, what its applications and ramifications were. It meant learning to know a law almost as though it were a human person, appreciating its every facet, plumbing its depth, going beyond the superficial, getting under its skin.

Men like Acacio Coussa, Gommar Michiels and Giacomo Violardo were in their prime in those days, and when they lectured at the Lateran the audience got a first-hand glimpse of a well oiled "legal mind" clicking away. "Jimmy" Violardo (as the Americans called him) taught the course on marriage and it was filled with interesting and witty insights; his final words of the year-long course were "Si quis dixerit se omnia quae in schola 'de matrimonio' dicuntur intellixisse, anathema sit. Si quis confitetur se non bene intelligere quae in schola 'de matrimonio' dicuntur, summus sapiens est." With every passing year since, I have come to appreciate more and more not just the humor but the wisdom of that remark.

The great canonical minds of that generation have been replaced thanks be to God, by those of the present, and surely among the most outstanding of these is Urban Navarrete, S.J., Dean of the Faculty of Canon Law at the Gregorian University, a man I have deeply admired for many, many years.1

What follows is a commentary which Padre Navarrete did shortly after the code commission's response of April 23, 1987 on canon 1103.2 As it happens, he and I come down on somewhat different sides of this question, so I have added some comments at the end, but primarily I offer this translation as an example of the thoroughness with which a wonderfully trained and thoughtful "legal mind" approaches a canonical question.

NAVARRETE'S COMMENTARY

Response of the Pontifical Commission for the Authentic Interpretation of the Code of Canon Law

Q. Whether the defective consent of canon 1103 can be applied to the marriages of non-Catholics.

R. Affirmative.1*

Notations

For the sake of convenience canon 1103 is here transcribed:

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 a type that the person is compelled to choose matrimony in order to be freed from it.

It will also be useful to keep in mind the text of canon 1087, §1 of the 1917 code:

A marriage is invalid if it is entered into due to force or grave fear inflicted from outside the person and unjustly, which is of such a type that the person is compelled to choose matrimony in order to be freed from it.

It is clearly very difficult to determine either the doctrinal significance or the juridic force of this response of the Commission for the Authentic Interpretation of the Code of Canon Law. There is no doubt but that nonbaptized non-Catholics are not subject to the positive laws of the Church. It is also entirely certain that the positive laws of the 1983 code and in particular the canons on marriage do not affect baptized non-Catholics (cc. 11 and 1059). Therefore, the response cannot refer to that which pertains to the positive law of the Church in canon 1103 if indeed there is anything of positive law in the canon. It follows, therefore, that the response implicitly affirms that the defect of consent mentioned in canon 1103 is of the natural law.

This seems to suppose that the commission had wanted to decide authoritatively this most vexed question that had been discussed for centuries by theologians and canonists, namely the question of whether the "impediment" of fear invalidates marriage by the natural law itself or only by the positive law of the Church. At the same time, however, it does not seem probable that the commission intended to close this speculative question, especially since the question does not seem to fall within the competence of the Commission for the Authentic Interpretation of the Code. For questions that pertain to the natural law fall rather under the competence of the Congregation for the Doctrine of the Faith which, in its declaration of May 13, 1977 about the capacity to contract marriage of those who had undergone a vasectomy, offered an example of exercising this competence.

Given the serious difficulty of interpreting the response of the commission, I will attempt briefly to explain, with the clarity of which I am capable, the state of the question, the limits within which the response can function and finally some practical consequences.

It is clear first of all that the issue before us does not involve a physical force which cannot be resisted. For since acts placed under this kind of coercion are not human acts, consent is completely lacking and therefore it is evident that the marriage is null by the natural law itself without any distinction between baptized and nonbaptized. The issue before us involves only moral force, or fear, namely that grade of external coercion which does not remove internal liberty but at the same time prompts those suffering the fear to choose marriage by a truly human act so that they may free themselves from that evil which they fear and which they foresee will happen to them unless they contract marriage.

The question is basically whether the invalidating effect of this kind of fear stems directly from the natural law or from positive human law. The question, however, must be further circumscribed lest it give rise to ambiguities. In 1912 Padre Wernz and later Wernz-Vidal, in 1928, rightly noted regarding this matter:

From the time of the Middle Ages it has been debated among theologians and canonists whether the matrimonial impediment of force and fear is of divine or of human origin. In this matter no one has ever doubted that the well known impediment, _for reasons that are entirely in accord_ with the nature of the matter, is completely in agreement with and _conformable to the natural law_. The whole question, rather, should be limited to the _substance_ of the impediment and should not be concerned with its _extension_ , which may have been augmented by the Church for the sake of a more perfect _degree of freedom_ that is not required by the natural law alone, just as, for example, the natural law impediment of substantial error of person had been _extended_ to include the accidental error regarding _slavery_. There is, therefore, only one real question, namely whether the invalidating law is contained in the natural law by which, independently of any civil or ecclesiastical law, all marriages, whether of pagans or of the faithful, are invalid if the impediment of force and fear as above defined is present.2*

It is especially noteworthy that the question is to be limited to that which Wernz and Vidal call "the substance of the impediment of fear." For it is evident that nobody has ever claimed that the canon law and the canonical jurisprudence about the invalidating efficacy of fear has exactly the same dimensions as the natural law, as though the canon law in this area expresses and sanctions the whole of and only the natural law. Indeed it is generally agreed that canon law, in order to protect more efficiently the freedom of people who are marrying, can and probably does demand for validly contracting marriage a greater degree of freedom than that which is demanded by the natural law.

As noted earlier, regarding the question thus limited, the authors of past centuries, who, following the lead of St. Thomas, defended the opinion that fear invalidates marriage by the very natural law itself, are nearly equal in number and authority to those who, following Thomas Sanchez, hold the opinion that fear invalidates marriage only by the human law.3* The same is true of the authors who wrote in the period between the 1917 code and the Second Vatican Council.4* Let me mention only two of the more prominent canonists: while Gasparri holds as the "true opinion" the one that says that "this law has its foundation in the law of nature but is not formally of the law of nature" but rather of the Church,5* Cappello writes regarding the opinion which holds that the invalidating force is found in the law of nature itself: "This opinion seems more probable, but we allow that the arguments on which it is founded are _not peremptory_."6*

These words of Cappello, incidentally, reflect the same hesitation with which Wernz and Vidal proposed the same opinion: "Although it is sometimes defended by arguments which are not all that firm, nevertheless in general it seems to be better founded."7*

This is not the place to review the arguments on which each opinion is founded. For our purposes the statements illustrating the state of the question in the period before the council are sufficient. The arguments themselves can be found in any text on marriage, since they all pretty much repeat the same thing.

The question, however, and it is not an easy one to answer, is whether, from the doctrine of the Second Vatican Council and from its subsequent development, new and peremptory arguments can be drawn in favor of the opinion which holds that fear invalidates marriage by the very law of nature itself. The council indeed did not treat this question. But from the anthropology and the teaching on marriage which the council either presupposed or proposed, are we able to draw definitive arguments in favor of this position? Unless I am mistaken, the authors have thus far paid little or no attention to this question. As for myself, I did my best to study and explain the matter in an article in which I intended to prove the appropriateness of suppressing in the revised code the phrase "inflicted from outside the person" in canon 1087, §1. I based my argument in that article on the reason why fear invalidates marriage as indicated by the teaching of the Second Vatican Council on the following points: 1) about the nature of marriage in so far as it is a communion of life and love between the spouses; 2) about the dignity of the human person; 3) about the freedom of conscience; and 4) about the fundamental rights of a human being.8*

As regards the degree of certitude of the opinion which holds that fear invalidates marriage by the natural law itself, I did not dare to propose that as certain. Indeed, since the council did not treat this question directly, it seemed to me that the new arguments which could be drawn from the general teaching of the council about the relevant points were not strong enough to solve definitively a question that had been debated and unsolved for centuries, in favor of the opinion which holds that fear invalidates marriage by the natural law and which considers the other opinion as definitively overturned and lacking in foundation.

As I indicated above, the response on which I am commenting supposes as certain doctrine that fear invalidates marriage by the law of nature itself. Otherwise it would seem that the commission could not say that the defect mentioned in canon 1103 can apply to marriages of non-Catholics. The extremely delicate issue of the doctrinal value which the response of the Commission for the Interpretation of Canon Law could have in this particular matter would demand a special study for which this is not the place. I will, therefore, abstain entirely from commenting on that issue.

But even admitting as certain doctrine that fear invalidates marriage by the law of nature itself, there still remains the intriguing question of determining the limits within which fear can exercise this invalidating influence. In other words: it remains to be determined in the wording of canon 1103 to which the commission refers, which elements are of the natural law and which, if any, are of positive ecclesiastical law. For, a priori, it seems inadmissible that the commission wished to state that the letter of the actual canon 1103 matches exactly the boundaries within which the natural law directly exercises its power to invalidate a marriage on the ground of fear.

Considerable difficulty is created by the fact that canon 1103, like canon 1087 of the 1917 code, limits the invalidating effect of fear to that fear that was inflicted "ab extrinseco." Historically this fear is not the same as fear inflicted "ab externo," like, for example, a fear of death as the result of shipwreck, but always refers to that particular kind of fear that is inflicted by a free cause, that is to say, by another human being. However, if the invalidating efficacy of fear stems directly from the natural law, this limitation is not easy to understand, as the authors who defend the position that fear invalidates marriage only by positive human law with a foundation indeed in the natural law, have been quick to point out. Indeed, as regards contracts in general, since the reason why fear either invalidates or can be the occasion for a rescissory action is "the protection against injustice," it is clear why it is required that fear be inflicted "ab extrinseco," since fear cannot be unjust unless it is inflicted by another. But if, in the marital covenant the reason why the covenant entered into out of fear is invalid is not "the protection against injustice" but rather the "protection of freedom" to enter a marriage, and indeed with a person who has been freely chosen, then that restriction is not easily explained, as I wrote in that previous article already mentioned:

The ultimate reason why fear has an invalidating effect ... is that marriage by its very divine institution is a community of life and love between the spouses. Where there is not love but aversion, a fundamental element of this communion of life and love is lacking. Freedom from grave coercion to enter that communion of life and love is demanded by the nature of marriage itself.9*

Nevertheless canon 1103 retains the phrase "ab extrinseco," by which the efficacy of fear is understood to be limited only to that fear which comes from a free cause. This being the case, the coherence between the recently promulgated canon 1103 on this point and the response of the commission here under discussion is not apparent.

Another phrase in canon 1103 which creates a difficulty is the phrase "even when inflicted unintentionally" by which invalidating force is ascribed even to fear that is indirectly inflicted, that is to say, that fear which is inflicted without any intention of forcing a person into marriage but for other reasons. In canonical tradition it was held as common teaching (with a few authors dissenting) that fear does not have invalidating force unless it is inflicted in order to extort consent. Even after the promulgation of the 1917 code this interpretative tendency prevailed until Dino Staffa published the acts of the codifying commission where it is clear that the intention of the commission had been to recognize the invalidating force even of fear that was only indirectly inflicted.10*

After that it was generally agreed that even indirect fear invalidates a marriage. Which interpretation is explicitly sanctioned in canon 1103 of the new code. But it is clear that this clause does not easily appear to be an element of the natural law. If however it is admitted that "fear indirectly inflicted" does, in fact, invalidate a marriage by the natural law itself, then it seems that it must necessarily be admitted that "fear ab intrinseco" also invalidates the conjugal covenant by the natural law itself since there seems to be no real difference between the two. This is true 1) as regards the element of _injustice_ , which is not present in either case, 2) as regards the element of _extrinsicality_ , which is obviously missing in intrinsic fear and is not really present in indirect fear either, and 3) as regards the element of _freedom of choice_ , since freedom of choice is limited to the same degree in both intrinsic and indirect fear, for in both cases the coerced persons eventually choose marriage in order to free themselves from an evil which was not imposed on them by anybody for the purpose of forcing a marriage. Indeed, if we are to proceed logically, it would have to be said that the phrase "inflicted ab extrinseco" of canon 1103 expresses a limitation which does not really restrict the scope within which fear objectively results in the nullity of a marriage. Therefore that phrase, if it means anything, exerts an efficacy only in the procedural area, in the sense that the legislator recognizes the right of accusing the marriage in the external forum only when fear had been inflicted "ab extrinseco" while he does not admit an accusation in cases of nullity from fear "ab intrinseco." However a construction of this kind would contradict the general principle which is presupposed in all actual canonical legislation, namely that every marriage which is objectively null can, per se, be accused of nullity in the judicial forum.

Again, in estimating the gravity of the fear that is necessary in order to invalidate a marriage, there arise immense difficulties in determining what kind of gravity is minimally necessary from the natural law in order to invalidate a marriage. In canonical jurisprudence the problem does not really come up because, since we have a law and a jurisprudence regarding the degree of gravity that is juridically recognized as invalidating, it is of little importance if, within that degree of gravity determined by the legislator or by teaching and jurisprudence, there happen to be elements which go beyond the strict limits of the natural law. This being the case, it is understandable that we seem to have no problem in accepting the fact that, over the past many centuries and right up to our own time, there has been a gradual evolution in the way we measure gravity, an evolution that has involved a shift from objective and absolute criteria over to subjective and relative criteria.11* This, indeed, seems to me to favor the position which I proposed elsewhere; namely, that the one and only note qualifying fear ought to be gravity, in such a way that canon 1103 could have been rendered as follows: "A marriage is invalid if it is entered into due to force or grave fear on account of which the person is compelled to choose matrimony in order to be freed from it."12* If, in fact, fear does invalidate marriage by the natural law itself, it seems that this formula enunciates the general principle which includes, as far as possible, all cases in which the natural law can exercise an invalidating influence on marriage. This one and only simple criterion would rule the entire matter: namely that a marriage is always null when the contractant is compelled to choose matrimony in order to be freed from the fear. This criterion supposes that the contractant here and now sees marriage as the only means by which he or she can be freed from the fear, whatever the intention of the one inflicting the fear, and even if the fear stems from a necessary cause of some kind. Nevertheless, since canon 1103 was not, in fact, so revised and since the doctrine and jurisprudence about the gravity of the fear that is necessary in order for a marriage to be considered invalid do not concern themselves with the different limits that might exist between the natural and the positive law, it follows that everything which is held in canonical doctrine and jurisprudence about the gravity required in order to declare a canonical marriage null cannot plainly and simply be applied to the marriages of non-Catholics.

From what has been said it is clear that, even if we admit that there might be an area in which nullity is caused by the natural law alone, nevertheless the question of determining the limits of that area is extremely difficult and delicate.

As regards the application of this ground of nullity to non-Catholics, the question of how it relates to the nonbaptized is well known in the history of canon law. The solution, as noted above, depended on which school of thought one followed. Authors who held that fear invalidates marriage only by the human law concluded that this ground of nullity did not affect the unbaptized unless it was stated in the law of the civil jurisdiction in which they resided. Those authors however who held the contrary opinion as the more probable, concluded that probably this ground of nullity affected the marriages of nonbaptized within the area in which natural law was operative. Nevertheless since this teaching would not be certain and since in doubt the validity of the marriage must be upheld, such marriages could not be declared null unless in the law of the civil jurisdiction in which they resided this ground of nullity had been established.

As regards the marriages of baptized non-Catholics, no specific problem arose until the promulgation of the new code, since prior to that time these marriages were ruled by the same ecclesiastical laws as the marriages of Catholics. Specifically, canon 1087 of the 1917 code and its related jurisprudence were applied to Catholics and to baptized non-Catholics in exactly the same way. Therefore there was no practical necessity to distinguish the elements of the natural law from the elements of the positive law in this matter either for Catholics or for baptized non-Catholics. The one distinction which had practical importance was the one between the elements which had invalidating force (whether of the natural law or of human law was of little note) and the elements which did not enjoy that invalidating efficacy.

But as of November 27, 1983, the marriages of baptized non-Catholics were not subject to the laws of the Code of Canon Law (see cc. 11 and 1059). Therefore whatever is of positive ecclesiastical law in canon 1103 and its related canonical jurisprudence is not applied to the marriages of baptized non-Catholics. On the other hand we know from doctrinal principles that these marriages are under the exclusive competence of the Church, "with due regard for the competence of civil authority concerning the merely civil effects of such a marriage" (c. 1059). The Church, however, by the promulgation of the 1983 code clearly said that these marriages are not ruled by the law of the code; but neither in the code nor afterwards is it stated by what human law these marriages are ruled.

Therefore, this being the case, the civil laws which clearly state that fear invalidates marriage are not to be applied, at least certainly applied, to these marriages. Consequently even in those places where the civil law sanctions this defect of consent, as regards the marriages of baptized non-Catholics we must keep in mind the distinction between those elements which have invalidating force by the natural law alone and those which have invalidating force only by human positive law.

The response of the commission here under discussion, with no distinctions being made, affirms that the defect of consent of canon 1103 can apply to the marriages of non-Catholics. But from what has been said it is clear that the marriages of nonbaptized non-Catholics and the marriages of baptized non-Catholics are not in the same juridic position, at least in those places where the civil law states that fear invalidates marriage. The response supposes and indeed supposes as certain doctrine, that in the province of fear there is at least a minimum area in which fear exerts an invalidating force on marriage by the natural law itself; and it further supposes that, within that minimum area, fear exerts an invalidating force on the marriages of both Catholics and non-Catholics, whether baptized or not, in the very same way. Since this is the case, it is clear that the response inaccurately says that "it can be applied," as if this application were empowering. It could more accurately have been said "may be applied," in an absolute way, because since it is a question of the scope of the efficacy of the natural law, it is hard to understand what the phrase "can be applied" actually means. In fact, the canon is simply "applied" if fear invalidates by the natural law alone; it is not "applied" if fear does not invalidate a marriage by the law of nature but only by human law.

From what has been said it is clear how heavy is the burden that is imposed on the Catholic ecclesiastical judge when he must render a decision regarding the validity of a marriage of two non-Catholics on the ground of fear. Nor does he receive much help from the response of the commission since the matter is much more complex than it might seem at first glance. The judge in individual cases must examine all the elements of this complex question. On the one hand the response of the commission, in my humble opinion, does not seem to have the doctrinal authority sufficient to close definitively the speculative question that has been debated for centuries, the question, that is, of whether fear at least in some cases invalidates the marriage by the natural law itself, independently of any human law; the question therefore remains open and a matter of free discussion. On the other hand, lest the response of the commission be rendered entirely useless and inoperative, it does seem to have some effect in the canonical order, namely insofar as it allows ecclesiastical judges in deciding cases of the possible nullity of a marriage of two non-Catholics, to apply in their judicial practice according to very strict limits the opinion according to which fear invalidates marriage by the natural law itself. Those very strict limits clearly restrict the area in which fear exercises an invalidating force by the law of nature itself, and prompt the judge to be extremely diligent lest elements of the positive law or of the jurisprudence of the Church be inadvertently applied to judging the nullity of these kinds of marriages. This conclusion is a very serious one but I do not see how the response of the commission can have any other juridic meaning. Besides, as is clear, this response does not exonerate the judge from the burden of judging according to "knowledge and conscience" in a matter which, because of its special complexity, demands special attention. Nor may we forget that the principle "in doubt the validity of the marriage is to be upheld" applies not only to the marriages of Catholics but to the marriages of non-Catholics as well.

s/ URBANO NAVARRETE, S.J.

SOME CONCLUDING OBSERVATIONS

In his commentary, Father Navarrete limns a brief but forceful argument in support of his position. He is convinced that the matter is, in fact, much more complex than the response of the code commission makes it appear, and with his usual clarity and incisiveness, he admirably and expertly marshals the arguments that favor that thesis.

My own position, for what it is worth, is quite the opposite, namely, that the matter is exactly as simple as the response indicates; canon 1103 may be applied to non-Catholics in the same way that it is applied to Catholics because the canon reflects the natural law. The following observations will, I hope, clarify the basis for this conclusion.

1 - The Distinction Between Being "Founded" in and Being Substantially "Present" in the Natural Law

In a rotal decision of August 5, 1948, Monsignor Wynen noted the following:

That this impediment (force and fear) is _founded_ in the natural law is doubted by none and indeed accepted by all the authors. But the further question rises as to whether the _substance_ of this diriment impediment (abstracting from its accurate circumscription or even its extension, made perhaps by a merely ecclesiastical law) is of the natural law.3

Wynen's distinction is a rudimentary and widely accepted one. Prior to the Second Vatican Council it was generally accepted as certain that force and fear is _founded_ in the natural law in the sense that the injustice and hardship caused by a coerced marriage would be likely to persuade a human legislator to pass a law that would regard such a marriage as null. It was not, however, accepted as certain that the substance of the "impediment" of force and fear, as it appeared in the 1917 code and in prior legislation, was actually _present_ in the natural law in the sense, for example, that the impediment of impotence was, or in the sense that a marriage entered into because of an irresistible physical force was. In this latter case, as Navarrete points out, there is not a human act of consent, and since it is consent that makes marriage, such a marriage would be considered invalid by the natural law itself. The traditional Catholic "impediment," however, referred not to physical but only to moral force, and since such force does not destroy but only diminishes consent, it was not regarded as _certain_ that such an impediment was actually _present_ in the law of nature.

For several good reasons, however, the opinion that held that force and fear was actually present in the natural law was regarded as the more probable opinion. Wynen, for example, in the decision just quoted, went on to say:

Although the Church has not definitively settled the controversy among canonists regarding the origin of the impediment of force and fear, it is nevertheless at least probable, indeed more probable, that the substance of this impediment is not merely of ecclesiastical but of the natural law.4

2 - The Contribution of Vatican II

The Second Vatican Council, in my judgment, turned this more probable opinion into a certain one. The council did what Wynen correctly noted had not been done in his time: it definitively settled the controversy. It did so by its teaching on marriage and by its teaching on the dignity and freedom of the human being, both of which teachings raised to a new plateau the Church's deepening understanding and appreciation of "the law that is written in our hearts."5

Prior to Vatican II the Church had emphasized the procreational aspects of marriage, the joining of _bodies_. When the council taught, in effect, that the _personalist_ aspects, the joining of _souls_ , were not just important but essential to a valid marriage, then we came to see that marriage was a loftier, nobler, richer state than we had thought. Perhaps, when marriage was seen only as an exchange of procreational rights, it was not clear that forcing a person into that state was against the natural law. Marriage, after all, was seen as a contract, and coercion-induced fear, as the old canon 103, §2 noted, did not vitiate a contract. But once marriage was seen as a community of life and love, then it became obvious that marriage and coercion were, by the law of nature, incompatible. One can be forced (even when the force is not physical but only moral) into sex but one cannot be forced into love. Forced love is a contradiction in terms and is therefore against the natural law. The council described marriage as a mutual donation or gifting of two persons,6 but a forced gift is not a true gift. The council taught, in other words, that a genuine marriage, by its very nature, could not be forced.

But even more important, perhaps, was the council's teaching on the dignity and freedom of the human being. "A sense of the dignity of the person," the council noted, "has been impressing itself more and more deeply on the human consciousness."7 With this growing appreciation of human dignity comes an evolving reverence for human freedom. "Human dignity," said the council, "demands that we act according to a knowing and free choice. Such a choice is personally motivated and prompted from within. It does not result from blind internal impulse nor from mere external pressure."8 In much the same vein but with a more specific reference to marriage, the council said: "There is a growing awareness of the exalted dignity proper to the human person since human persons stand above all things and their rights and duties are inviolable. Therefore there must be made available to all human persons everything necessary for leading a life truly human, such as food, clothing, shelter, the right to choose a state of life freely and to found a family."9

Other quotations from Vatican II could be made as well, but let me close this section by noting simply that number 29 of _Gaudium et spes_ refers to the faculty of freely choosing a spouse as a "fundamental right" of both women and men. Fundamental rights that pertain to all men and women come from the natural law, so it is clear, I think, that the council has endorsed the position that the "impediment" of force and fear (which removes the possibility of marrying "non tantum libenter sed etiam libere") is not just _founded_ in but is actually _present_ in the natural law. That position, as I understand it, was, after Vatican II, no longer just the more probable opinion but rather the certain teaching of the Church.

3 - The Differences Between Canon 1087, §1 of the 1917 Code and Canon 1103 of the 1983 Code

Canon 1103 of the new code replaced the phrase "et iniuste" that appeared in the old canon 1087, § l with the phrase "etiam haud inconsulto." In other words the new code no longer required that fear be _unjustly_ inflicted in order to be invalidating; and it explicitly stated that, in order to be invalidating, fear did not have to be inflicted _directly_ , i.e., for the purpose of forcing the marriage. By making this twofold change, the code is saying that it does not make any difference whether the fear is justly or unjustly imposed, nor does it make any difference whether or not it is intended to bring about marriage. Those questions are irrelevant, says the canon, because they deal with the _coercer_ , and it is not the coercer but the _coerced_ who is important. What is at issue is whether the coerced was or was not deprived of the faculty to choose freely his or her spouse, which faculty, says Vatican II, is a "fundamental right." The 1983 code, therefore, both highlights the teaching of the council and accurately shapes the canon so that it focuses sharply on the real issue, namely the freedom every person should enjoy in choosing a life partner.

4 - The Competence of the Code Commission (and of the Law Council)

The rule of thumb regarding the different competencies of the code commission and of the Congregation for the Doctrine of the Faith is that _canonical_ matters are handled by the code commission while _doctrinal_ matters are handled by the Doctrine of the Faith.10

This rule of thumb is illustrated by three fairly recent responses. The _first_ was given by the Congregation for the Doctrine of the Faith on May 13, 1977 regarding the question of whether the vasectomized man was or was not impotent. The congregation declared that a vasectomy did not render a man impotent.11 The congregation was considered the proper dicastery to make that decision since the matter was considered "doctrinal" in the sense that it had long been disputed among canonists, with both sides to the question having merit and enjoying a degree of probability, and without the matter ever having been authoritatively settled. The _second_ response was from the code commission on February 8, 1986 regarding the possible retroactivity of canon 1098 on "error dolosus." This was a private response in which the commission offered some canonical observations but noted that "to arrive finally at a clarification ... is a task reserved to doctrine."12 Finally, the _third_ response was the one here under discussion, namely the one approved by the commission on November 15, 1986, some ten months after its private response on "error dolosus." Obviously, the commission had determined that the fathers of the Second Vatican Council had already definitively settled in the affirmative the old dispute about whether or not force and fear invalidated a marriage by reason of the natural law, and the commission therefore regarded itself as competent to answer the canonical question about the applicability of the canon to nonCatholics.

The question might arise as to why the commission felt that the question of fear had been definitively settled while the question of "error dolosus" had not. The answer presumably is rooted in the remark of Wernz-Vidal that there is not a true parity between fear and fraud because " _fraud_ directly affects the _intellect_ whereas _fear_ immediately and intrinsically moves the _will_ ";13 and as is clear from the Vatican II passages cited above, it is the faculty to choose one's spouse by a free act of the _will_ that the fathers of the council regarded as a "fundamental right." Not that the cited passages are irrelevant to the issue of "error dolosus"; far from it. But the fact is that they bear _directly_ on fear and only _indirectly_ on fraud or rather "error dolosus," and the latter issue is therefore less clear, as the February 8, 1986 response indicated, than is the issue of fear.

5 - The Requirement of Extrinsicality

Since the drafters of the code were evidently intent on taking the emphasis off the coercer and putting it onto the coerced (in order to highlight the fact that the entire issue here is freedom of choice), it would seem that it would have been both more thorough and more logical if, besides dropping the phrase "et iniuste" and replacing it with "etiam haud inconsulto," they had also dropped the phrase "ab extrinseco." The phrase "ab extrinseco" does, after all, suggest that the coercer, that extrinsic person who exerts the force, enjoys some legal importance after all. Father Navarrete impressively developed this point in the article mentioned in his footnote 8**.

Nevertheless, retaining the phrase "ab extrinseco" is, I think, a taxonomically sound approach and has a logic of its own. Without in any way restricting the rights of a petitioner, it nevertheless provides a clear guideline to the judge in selecting the ground on which a case is to be heard. When a person marries out of fear that is both grave and causative and when, furthermore, that person has an aversion to marrying the other, then that marriage is certainly null. But on what ground should the case be heard? The code (cc. 1103 and 1095, 2°) answers that if the source of the fear was _extrinsic_ , then the proper ground is force and fear, whereas if the source was _intrinsic_ , the proper ground is lack of due discretion.14 This use of extrinsicality as the basis for determining the proper ground of nullity is, I think, firmly rooted in our canonical tradition and seems as well to be in accord with our common sense understanding of the issue.

When, on May 20, 1977, the _coetus_ working on the revision of _De Matrimonio_ took up the question of whether the phrase "ab extrinseco" should be deleted, this business of taxonomy, of calling things by their proper names, was clearly a key issue. Five members voted to retain the phrase, two to delete it, and there was one abstention. Those who voted to retain it did so "because otherwise many internal, psychological motives could be adduced _as having the species of force and fear_ , which could open the way to many abuses."15 It was not, in other words, that they felt that fear "ab intrinseco" was not invalidating, just that it should not be considered to have the species of force and fear, and that the question of invalidity should therefore be judged on some other ground.

It is, I think, important to remember that the natural law deals with broad principles and not with the niceties of taxonomy. In speaking of the natural law, Pope Leo XIII said:

There are other enactments ... which do not follow directly but rather somewhat remotely from the natural law, and decide many points which the law of nature treats only in a general and indefinite way. For instance, though nature commands all to contribute to the public peace and prosperity, whatever belongs to the manner and circumstances and conditions under which such service is to be rendered must be determined by the wisdom of persons and not by nature herself.16

As this point bears on the present issue it means, it seems to me, that the natural law says that, given the nature of the human being as a person of great dignity and given the nature of marriage as a community of life and love, every person should enjoy substantial freedom in choosing to marry; therefore, whenever a person marries out of grave fear of some evil, to escape from which marriage is perceived as necessary, then substantial freedom is lacking and the forced marriage is not a true marriage. The natural law, as I understand it, does not go beyond this. When therefore a given legal system seeks to identify and classify the precise ground on which the question of marriage validity will be judged, the system is, at that point, free to devise its own methodology. This is precisely what canon law has done in deciding that a forced marriage will be heard on the ground of "vis et metus" when the force is _extrinsic_ , and on the ground of "defectus discretionis" when the force is _intrinsic_.

In short, my position is this: any marriage which is entered into out of fear that is both grave and causative is invalid, and indeed by the natural law. It makes no difference whether the fear is caused justly or unjustly, directly or indirectly; the marriage is still null; by the natural law. Indeed it does not even make any difference whether the fear had an extrinsic or an intrinsic source; the marriage is null in either case; by the natural law. In the former case, however, the proper canonical ground is force and fear, whereas in the latter case, it is lack of due discretion.

Both grounds, however, are of the natural law and apply equally to all persons, Catholics and non-Catholics, baptized and unbaptized alike.

1991

Return to TOC

ENDNOTES

1 Father Navarrete actually joined the faculty at the Gregorian in 1958 and was therefore lecturing at the "Greg" even while Coussa, Michiels and Violardo were at the Lateran, and Ludovico Bender, another "giant," was at the Angelicum.

2 Urbano Navarrete, S.J., "Responsa Pontificiae Commissionis Codici Iuris Canonici authentice interpretando," _Periodica_ 73 (1988) 497-510. The following twelve footnotes, which have all been marked with an asterisk, are from Navarrete's own text.

It bears noting that the name of the "Pontifical Commission for the Authentic Interpretation of the Code of Canon Law" was changed to the "Pontifical Council for the Interpretation of the Texts of Law" when, on March 1, 1989, the apostolic constitution _Pastor bonus_ took effect.

1* Approved by the Fathers of the commission in a plenary meeting of November 15, 1986; by the pope in an audience of April 23, 1987. The response was published in _L' Osservatore Romano_ July 24, 1987, and then in _Communicationes_ 19 (1987) 149. It is promulgated in _AAS_ 79 (1987) 1132.

2* Franciscus X. Wernz, _Ius Decretalium_ , IV, _Ius Matrimoniale Ecclesiae Catholicae_ , Part II (Prati, 1912) n. 266, p. 51; Franciscus X. Wernz and Petrus Vidal, _Ius Canonicum_ , V, Ius Matrimoniale (Romae, 1928) n. 502, p. 580.

3* Among pre-code authors who held that fear invalidates marriage by the natural law alone, Vidal (Wernz-Vidal, p. 590, note 32) lists: Tancredus, Reiffenstuell, Ballerini-Palmieri, Aichner, Rosset, Scherer, Schiffini, Cathrein. For the other opinion (p. 598 note 30): Sanchez, Lugo, Schmalzgrueber, Feije, Schnitzer, Pirhing, Biluart, Pichler.

4* Cf., e.g., M. Conte A. Coronata, _Institutiones iuris canonici_ III _De Sacramentis_ , lII (Torino, 1957) n. 480, pp. 644-646.

5* Gasparri, _De Matrimonio_ (Vatican City, 1932) II, n. 840, pp. 52-53.

6* Felix Cappello, _De Matrimonio_ (Torino, 1962) n. 609, p. 548.

7* Wernz-Vidal, n. 502, p. 590.

8* 8**U. Navarrete, "Opportetne ut supprimantur verba 'ab extrinseco et iniuste incussum' in can. 1087, circa metum irritantem matrimonium?" in _Ius Populi Dei, Miscellanea in honorem R. Bidagor_ , 3 (Rome: Universitas Pontificia Gregoriana, 1972) 591.

9* Ibid.

10* Dino Staffa, "De Metu irritante matrimonium," _Periodica_ 45 (1956) 303-322.

11* Cf. Navarrete, 574-580. Translator's note: the older criterion, which was objective and absolute, was the fear that is inflicted on a "vir constans"; the more recent criterion, which is subjective and relative, takes into account the degree of fragility in the subject. This shift seems to blur the line between extrinsic and intrinsic fear.

12* Ibid., 593.

3 _SRRD_ 40: 327.

4 _SRRD_ 40: 328.

5 Romans 2: 15.

6 Vatican II, pastoral constitution _Gaudium et spes_ , December 7, 1965, n. 48: _AAS_ 58 (1966) 1068.

7 Vatican II, declaration _Dignitatis humanae_ , December 7 1965, n. l: _AAS_ 58 (1966) 929.

8 _Gaudium et spes_ 17: _AAS_ 58 (1966) 1037.

9 Ibid., n. 26: _AAS_ 58 (1966) 1046.

10 Cf. _Pastor bonus_ , articles 48, 154, 155 in _Communicationes_ 20 (1988) 29 and 52.

11 Lawrence Wrenn, _Decisions_ , 2nd ed. (Washington: CLSA, 1983) 1-2.

12 Lawrence Wrenn, _Annulments_ , 5th ed. (Washington: CLSA, 1988) 168.

13 Wernz-Vidal, _Ius Canonicum_ , V, _Ius Matrimoniale_ (Rome: Apud Aedes Universitatis Gregorianae, 1946) n. 502, p. 634.

14 Lawrence Wrenn, _Decisions_ , 1st ed. (Washington: CLSA, 1980) 165; 2nd ed. (Washington: CLSA, 1983) 43.

15 _Communicationes_ 9 (1977) 376. Emphasis added.

16 Pope Leo XIII, encyclical _Libertas_ , June 20, 1888, n. 9: _ASS_ 20 (1888) 598.

# ARTICLE SIX

## SACRAMENTALITY AND THE INVALIDITY OF MARRIAGE

A - Introduction

In the 1917 code the opening canon on marriage, c. 1012, read as follows: "§1 Christ the Lord raised to the dignity of a sacrament the matrimonial contract between the baptized. §2 Wherefore, between the baptized, a valid matrimonial contract cannot exist without it being _eo ipso_ , a sacrament."

This canon was the first codification of what is known as the inseparability doctrine, namely that in a marriage between baptized Christians, the contract of marriage and the sacramentality of marriage are inseparable. Or, as the canon says, if it's a valid marriage it is, _eo ipso_ , a sacrament.

Given this canon and this doctrine one might conceivably have assumed back in 1917 that jurists would, if not immediately at least eventually, begin to draw from them a couple of inferences. The first would be this, that since, in a marriage between Christians, a valid marriage cannot exist without it being _eo ipso_ a sacrament, then in such a marriage sacramentality must be considered an essential component of marriage; and from this first inference would flow a second, namely that, since sacramentality is an essential component of a Christian marriage, it would seem that if a party to such a marriage were positively to exclude sacramentality or be in determining error regarding sacramentality, the marriage would be invalid.

If by chance one did in fact assume back in 1917 that these two inferences would eventually be made, one would have been correct. The inferences were eventually made. It took more than sixty years for the matter to achieve some reasonable degree of clarity, but eventually the inferences were not only made but actually became mainstream jurisprudence. This, after all, is the way jurisprudence works. It does not develop overnight. As Aurelio Sabbatani once said:

Renewal is usually brought about by jurisprudence "sensim sine sensu." Ordinarily, jurisprudence "renovat iuventutem iuris" not through noisy interventions or destructive propositions, not even by entirely new constructions, but slowly and surely by humble labor, as that of the sea which imperceptibly sweeps away sand and pebbles from the beach so that the coastline is eventually modified. This jurisprudence imposes itself not "ratione imperii sed imperio rationis."1

B - History of the Canons

Beginning with the 1917 code the development of the canons concerning both simulation and determining error as they apply to sacramental dignity has been an interesting story, with many twists and turns, and, as in any really good story, one major surprise.

1 - The 1917 Code

Once the 1917 code had stated the inseparability doctrine in canon 1012, it should have come as no surprise that, when the code took up the topic of _error of law_ (c. 1084), it listed sacramental dignity along with unity and indissolubility among the elements that would result in the invalidity of a marriage were one of the parties in such intransigent error regarding them that it would move the will to an exclusionary act. Canon 1084 actually stated the matter indirectly by saying, "Simple error about the unity, indissolubility or sacramental dignity of marriage, even if it is the cause of the contract, does not vitiate matrimonial consent." The implication, however, was clear: non-simple error, that is to say, error that influences the will to exclude one of those three essential components _does_ vitiate consent. This seemed a natural corollary to canon 1012, §2.

Somewhat mysteriously, however, when the 1917 code turned its attention to _simulation_ (c. 1086, §2), even though it mentioned unity and indissolubility as elements which, if excluded by a positive act of the will, would invalidate the marriage2 it omitted in this context, all mention of sacramental dignity as an element comparable to unity and indissolubility.

So why did the 1917 code mention sacramentality in the error of law canon but omit mention of it in the simulation canon? Why the discrepancy? Or apparent discrepancy? And how would the future drafters of the law and the legislator view the whole matter? Would they perhaps correct canon 1086, §2? Or canon 1084? Or both? Or perhaps neither?

2 - _Coetus_ on Marriage 1966

When, as part of the Commission for the Revision of the Code, the _coetus_ on marriage met for the very first time in October of 1966, they proposed that it was not the simulation canon that had to be corrected in this area but rather the error of law canon. It was the opinion of the _coetus_ that the phrase "sacramental dignity" should be deleted from the canon on error because, they said, "Error about sacramental dignity, as long as both baptized contracting parties intend to contract an exclusive and indissoluble marriage, has no effect since that marriage is a sacrament independent of the will of the parties - unless, of course, they placed, as a true condition to their consent, the exclusion of the sacrament, in such a way that they did not want the marriage if it were a sacrament; this, however, is irrelevant in terms of this canon."3

3 - The 1975 Schema

It was nine years later, in 1975, that the commission finally circulated its _Schema on the Sacraments_ , and sure enough, in accord with the 1966 proposal of the coetus on marriage, there was no mention of sacramental dignity either in the canon on error of law (c. 302) or in the canon on simulation (c. 303, §2). Like the 1917 code, the 1975 draft contained a canon (c. 242, §2) stating the inseparability, among baptized Christians, of marriage and sacrament; but that teaching was not applied, in the 1975 draft, either to error of law or to simulation.

4 - _Coetus_ on Marriage 1977

After the 1975 draft had been circulated among the usual consultative bodies4 and their observations had been received, the _coetus_ on marriage met on May 20, 1977 to discuss the various suggestions. One proposal was that, in the canon on error of law, the phrase "or sacramental dignity," as it appeared in the 1917 code, be reinstated. The minutes of the meeting then read:

One consultor agreed with this proposal. For he held that if error about the sacramental dignity of marriage influences ( _afficiat_ ) the will, the marriage is null. Two consultors, however, denied that a marriage would be null when error about sacramentality affects the will because the one who errs about the sacramentality of marriage has nevertheless a prevailing intention of entering a true marriage, which objectively does not exist without it being a sacrament; for in order for a marriage to be regarded as null on the ground of error about sacramental dignity, it is necessary that the exclusion of sacramentality be a prevailing intention, namely that it be placed as an explicit condition.

After these opinions were expressed, a discussion among the consultors followed; and then a vote was taken on whether the reinstatement of the words "or sacramental dignity" should be approved; three members voted to approve; three voted not to approve; and two voted to abstain.

Since a majority was not reached for either opinion, the text remains as is.5

At that May 20 meeting the canon on simulation was also discussed, but apparently no one had suggested the possibility that if a party, by a positive act of the will, excluded sacramental dignity, the marriage would be invalid. The account of the discussion on that canon mentions no such thing.6

5 - Zenon Grocholewski

The following year, 1978, _Periodica_ published an article by Monsignor, now Cardinal, Zenon Grocholewski in which he took issue with what had for many years been the prevailing and virtually common opinion of authors and jurists, namely that sacramentality can be excluded only if, in doing so, the party excludes marriage itself according to the following condition: "I contract with you, but I do not want the sacrament; and if the sacrament comes into being then I do not want marriage."7

Grocholewski vigorously disagreed with this conclusion and instead took the position that sacramentality can be excluded in the same way that unity and indissolubility can be excluded, and with the same effects.8 Juridically, he said, it is a contradiction to say, on the one hand, that a valid marriage between baptized people cannot exist without it being a sacrament, and, on the other hand, that the positive exclusion of sacramentality does not invalidate the marriage. Theologically, furthermore, he found it difficult to see how spouses who, by a positive act of the will, reject the sacrament can, at the same time, truly receive and administer the sacrament.9

Commenting first on the 1917 code, he wrote

I see a certain incoherence in the present code regarding the matter under discussion in that canon 1012, §2 is not reflected at all in canon 1086, §2 for in my judgment, as is clear from my previous observations, the assertion of canon 1012 necessarily demands that in canon 1086, §2 mention also be made about the positive exclusion of sacramentality.

It also seems to me that there is an inconsistency between canon 1084, which says that simple error about sacramental dignity does not vitiate matrimonial consent (which seems to imply that non-simple error does vitiate consent) and canon 1086, §2 where sacramentality is not included among the exclusions that vitiate consent.

It seems to me that there ought to be a logical relationship between canon 1084 and canon 1086, §2 in that logically both canons can concern themselves only with those elements without which a true marriage cannot be had, that is to say, those elements about which - in order for the marriage to be null - simple error (c. 1084) is not sufficient but a positive exclusion (c. 1086, §2) is required.10

Then, turning his attention to the 1975 schema, Grocholewski said:

In the new draft of canons, although the statement of canon 1012, §2 is included, there is no mention of sacramentality either in the canon that corresponds to canon 1084 or in the one that corresponds to canon 1086, §2.

From what has already been said it must be clear that I find this altogether unacceptable.

For if marriage between the baptized cannot exist without it being a sacrament, then it must be said - forgive the repetitiousness - that sacramentality pertains as much to the essence of a marriage of Christians as unity and indissolubility pertain to the essence of any marriage, that is, to marriage in general. Consequently, since the inseparability mentioned in canon 1012 is being recognized in the new code, then it seems necessary that besides the exclusion of the other elements, the exclusion of sacramental dignity should be made explicit.11

6 - The 1980 Schema

In June of 1980 the Commission for the Revision of the Code published a schema of the whole code which supposedly took into account the animadversions received from the standard organs of consultation on the several drafts of individual sections of the code that had been circulated over the previous seven or eight years. This 1980 schema was "reserved" to the cardinal members of the commission although, somewhat miraculously, hundreds of copies were seen before the year was out on the desks of canon lawyers all over the world.12

Like the 1975 draft of the marriage canons, this 1980 schema again made no mention of sacramentality either in the error of law canon (c. 1053) or in the simulation canon (c. 1055, §2). Apparently the drafters of these canons were not persuaded by Grocholewski's observations.

The situation, however, would soon change.

7 - The _Relatio_

Following the publication of the 1980 schema, the members of the Commission for the Revision of the Code submitted comments on the draft. A synthesis of these comments along with responses from the Commission staff and consultors was then published as a 358 page report called simply the _Relatio_.13 It was published on July 16, 1981 and was, in effect, still another draft.

It is right here that the story becomes particularly fascinating. Under the heading of the canon on _error of law_ it is noted that, on the recommendation of the Sacred Congregation for the Doctrine of the Faith, in a letter dated January 14, 1981, the phrase "or sacramental dignity" is now to be inserted back into the canon.14 And under the heading of the canon on _simulation_ , it is noted that the Most Reverend Jose Falcao, Archbishop of Teresina in Brazil, but also a member of the Congregation for the Doctrine of the Faith, asked that a similar phrase be restored to this canon as well, and his request was granted.l5

So thanks to the Doctrinal Congregation, the position of Zenon Grocholewski was now vindicated. The final chapter of this story, however, had not yet been written.

8 - The Congregatio Plenaria

As one of the final steps leading up to the promulgation of the 1983 code, a plenary session of the commission was held in Rome from October 20 to October 28, 1981, just about three months after the _Relatio_ was distributed.

On October 24 forty-four voting members took up the question of whether the phrase "or sacramental dignity" should once again be suppressed in the canons on error and simulation. Oh, to have been a fly on the wall at that meeting! It is clear from the transcript16 that the discussion was both a fairly lengthy and an absolutely engrossing one.

Cardinal Hoffner of Cologne opened the discussion by proposing, mostly for ecumenical reasons, that the words "or sacramental dignity" be deleted. "Almost all Protestant Christians," he said, "in accordance with their own teaching, do not recognize marriage as a sacrament. So if the words 'sacramental dignity' remain in the canon, and if, by a simple positive act of the will, they exclude sacramental dignity, then they would be considered to be living in an invalid marriage. Such a situation, however, would, with good reason, create indignation among our separated brethren."

Following these remarks Cardinal Felici, the president of the commission, asked Archbishop Castillo Lara, the secretary, if he would like to comment. Castillo Lara, clearly a strong proponent of the Grocholewski position, replied in a most straightforward way. He said: "Certainly, Your Eminence. What Cardinal Hoffner proposes, in the judgment of the commission - the consultors and staff - simply cannot be admitted." Then, citing the canon on the inseparability of marriage and the sacrament as the basic principle, Castillo Lara said: "A person who excludes the sacrament by a positive act cannot receive the sacrament. If, between two baptized people the sacrament is not received, there is no valid contract, no valid marriage." He then went on to say that the inseparability of marriage and sacrament is a doctrinal matter that could only be changed by the supreme authority but short of that, he concluded: "I believe that theologically the proposed suppression cannot be admitted."

The next to speak was Archbishop Luis Henriquez of Valencia in Venezuela, who agreed with Castillo Lara. "If one admits what is taught in canon 1008 [the canon on inseparability]," he said, "then it is illogical to exclude sacramentality from canon 1053 [on error of law] and 1055§2 [on simulation]." At the same time, however, Henriquez felt that perhaps part of the problem was that not enough attention was being paid to the exact wording of the canons. The canon on simulation, he pointed out, required for invalidity that there be an exclusion _by a positive act of the will_ and the canon on error says that the error does _not_ vitiate the consent _as long as it does not determine the will_. So when Protestants marry, unless their error about sacramentality determines the will or they exclude it by a positive act of the will, "they both contract marriage and receive the sacrament," and consequently "there is nothing found here that is contrary to true ecumenism."

Cardinal Hoffner, however, persisted. He said, "If these words [i.e. 'or sacramental dignity'] remain, then many marriages of a Catholic party with a Protestant are invalid. For there are now Protestants who truly know their own faith and study in universities, in theological faculties, and when these people enter into marriage they certainly have in mind that they are not entering a sacrament, a sacramental marriage. Certainly there are many such people."

Shortly thereafter Cardinal Felici intervened, saying that he wanted to add something before the matter was brought to a vote. He began by saying that personally he had not really been in favor of adding the words "or sacramental dignity" to the two canons, mostly because many people now marry in a religious ceremony not for religious but for social or familial reasons, and then later, after divorcing, would want to claim that the marriage was invalid on the ground of an exclusion of sacramental dignity "Nevertheless," he said, "we had the letter from His Eminence, Cardinal Seper, as Prefect of the Holy Office or Congregation of the Doctrine of the Faith, and we were, in effect, eventually asked by the Congregation to reintroduce the words into both canons." Cardinal Felici then quoted extensively from Cardinal Seper's letter in which it is clear that a principal reason for including the words was the concern that, if the words were omitted, the omission might convey the impression that the Church was abandoning its traditional thesis regarding the inseparability, among baptized Christians, of marriage and sacrament, and the congregation wanted to avoid giving that impression. Cardinal Felici then concluded his remarks by saying: "Therefore given the letter of the Sacred Congregation, we have no choice but to add the words. With that being said, I propose...."

But before finishing his sentence, Cardinal Felici became aware that Cardinal Ratzinger, the then Archbishop of Munich,17 wished to address the group, and so turned the floor over to him. Cardinal Ratzinger began by saying: "The fact is that if we include those words, which in themselves are certainly founded, it will give the impression to many Protestants, especially those who influence public opinion, that we are in effect declaring Protestants incapable of entering a valid marriage with a Catholic; and if we say that the exclusion of sacramentality invalidates the sacrament, I foresee that they will say in their publications that we are now making mixed marriages practically impossible since the exclusion of sacramentality by the Protestant party would make them invalid." Ratzinger, therefore, recommended a kind of compromise: he proposed that the words "or sacramental dignity" _be_ inserted into the error of law canon, where the doctrine would be expressed but only indirectly (Error concerning the unity or indissolubility or sacramental dignity of marriage does _not_ vitiate matrimonial consent _provided_ that it does not determine the will) but that the words _not be_ inserted into the simulation canon. In this way, said Ratzinger, the doctrine is stated and stated clearly (in the error canon) but not in an offensive way that would create great difficulties.

Cardinal Felici then proceeded to call for a vote on the two canons. Of the forty-four voting members, thirty-nine voted to retain the error of law canon as it appeared in the _Relatio_ , i.e., with the words "or sacramental dignity" included; and in the simulation canon thirty-five voted to delete the words, so that the canon would now read, "If, however, either or both of the parties, by a positive act of the will exclude marriage itself, some essential element of marriage, or some essential property of marriage, the party contracts invalidly."18

It was understood, in light of Ratzinger's intervention, that either the phrase "marriage itself" or the phrase, "some essential element of marriage" or the phrase "some essential property of marriage" included sacramental dignity in a marriage of two baptized people; and so the doctrine that would be stated explicitly but indirectly in the error canon would be stated only implicitly, and so inoffensively, in the simulation canon.

So, after many vicissitudes, the matter was finally settled. And it was in this form that the canons were promulgated in 1983.

C - The Jurisprudence Regarding Simulation

1 - The Canon and its Context

In both the 1917 code and the 1983 code an explicit mention of sacramental dignity is not to be found in the canon on simulation. This might seem to suggest that nothing had really changed between 1917 and 1983; but that, of course, would be far from the truth. In fact two things had changed: the canon itself and the general context of the canon.

As for the canon itself, the 1917 code canon 1086, §2, read: "If, however, either one or both of the parties by a positive act of the will exclude marriage itself or every right to the conjugal act, or some essential property of marriage, the party contracts invalidly." The corresponding canon in the 1983 code, canon 1101, §2, significantly changed the listing of the objects of exclusion. According to this canon they are "marriage itself, some essential element of marriage, or some essential property of marriage." The 1917 code phrase "every right to the conjugal act" was, in other words, replaced in the 1983 code by the phrase "some essential element of marriage." And it is generally agreed that in a marriage between Christians, sacramental dignity is either an essential element or an essential property of marriage.19 Sacramental dignity, therefore, is certainly included implicitly in the 1983 code simulation canon; whereas it was not certainly included in the corresponding canon of the 1917 code.

Even more important than the change in the canon itself, however, is the change in the context of the canon. For many years after the 1917 code practically all authors and jurists held that sacramentality could be excluded only by an explicit condition, as when a person would say "I contract with you but I do not want the sacrament and if the sacrament were to come about, then I do not want marriage."20 In the years just before the 1983 code, however, beginning with Grocholewski's article in 1978 and culminating in the _Congregatio Plenaria_ a few years later, a whole new approach took hold of the key people who were influential in the drafting of the new canon. The new approach was that fidelity to the principle of inseparability demanded that, in the simulation canon, sacramentality be included among the factors which, if excluded, would cause invalidity. The Congregation for the Doctrine of the Faith asked for an explicit mention of sacramentality in the simulation canon; Cardinal Felici and Archbishop Castillo Lara, the two leading figures in the Commission for the Revision of the Code, agreed with that position. And it was only after Cardinal Ratzinger convinced the group that, as long as the "doctrine" (that an exclusion of sacramentality that determined the consent would invalidate the marriage of two Christians) was firmly established by explicitly including sacramentality in the error of law canon, the group, in deference to the sensitivities of our Protestant sisters and brothers, could then safely vote to omit explicit mention of sacramentality in the simulation canon.

The group, as we have seen, did in fact so vote but the doctrine itself was not to be compromised. It was understood by all, that even though sacramental dignity was not going to be mentioned _explicitly_ in the canon, nevertheless, in a marriage between Christians, if a party excluded sacramentality by a positive act of the will, then the marriage would be invalid. It was understood, in other words, that henceforth sacramentality could be excluded in the same way that unity and indissolubility could be excluded - and with the same effects. It is this understanding that rules our present jurisprudence.

2 - Applying the Jurisprudence

What then are some of the typical cases that might come before a tribunal under this heading? The first one that comes to mind is this: two young Protestants are rebelling, primarily against their parents themselves but secondarily against the values and religion of their parents. When the two young people decide to marry, their parents want them to marry in the church but, against the wishes of the parents, they decide to marry before a justice of the peace. After some years they divorce and then one of them, wishing now to marry a Catholic, approaches a tribunal claiming the marriage to have been invalid because by electing to marry before a civil official rather than before their minister, both of them were excluding sacramental dignity by a positive act of the will. The tribunal might well wonder, of course, why Protestants would bother positively to exclude sacramentality from a marriage when they don't accept the sacramentality of marriage in the first place. Is it not illogical, as well as counter psychological; for one positively to exclude something that one does not recognize as existing? The petitioner, however, makes the point that their explicit intention was to exclude anything sacred, which, in Catholic terms, would certainly include sacramentality. The petitioner, it would seem, has a point; and if he or she could prove, especially by witnesses, that one or both of them did indeed positively exclude anything sacred in entering marriage, then the appropriate tribunal decision, it would seem, would be in the affirmative.

A second scenario would be this. A devout Catholic woman and a devout Presbyterian man marry. The man had attended a Presbyterian seminary when he was younger and is now a prominent member of his church (the kind of person Cardinal Hoffner spoke about at the _Congregatio Plenaria_ ). The wedding is in the church of the bride but is an ecumenical service, with the priest requesting and receiving the vows and the minister taking a prominent part as well. During conversations between the bride and groom in the month before the wedding, the bride let it be known that not just marrying but entering into the _sacrament_ of matrimony was important to her, while the groom agreed that marriage was a sacred undertaking for him as well.

Among the members of his own congregation, however, he made it clear that he was a true Presbyterian and that he would not be receiving a "Catholic sacrament." Well the marriage eventually ends in divorce; and when the woman institutes a case in the local tribunal, the man respectfully testifies before the tribunal that, had he married another Protestant, it would never have occurred to him to take such a stand on the issue of sacramentality, but given the special circumstances and given his standing in the local Presbyterian community, he considered it his duty to make his intentions clear. He had no idea that his stance would invalidate the marriage but the tribunal finds in the affirmative.21

A third example that comes to mind is one that is prompted by the following paragraph from number 68 of _Familiaris consortio_ :

However, when in spite of all efforts, engaged couples show that they reject explicitly and formally what the Church intends when the marriage of baptized persons is celebrated, the pastor of souls cannot admit them to the celebration of marriage. In spite of his reluctance to do so, he has the duty to make note of the situation and to make it clear to those concerned that, in these circumstances, it is not the Church that is placing an obstacle in the way of the celebration that they are asking for, but themselves.22

The situation, as outlined by the pope, involves an engaged couple who tell the priest that they explicitly and formally reject what the Church intends to do when the marriage of baptized persons is celebrated. Imagine, however, this slightly different case: two young people, who were baptized as Catholics in infancy but who now view the Catholic Church as "a house of superstitions," request a church wedding because of pressure by their parents to do so. They tell many people that they reject the notion of the sacramentality of marriage, but the one person they do not tell is the priest. Implicit in the pope's statement, it seems, is that, if the priest knows about it, he may not officiate at the wedding because it would be invalid. The canon, at any rate, is clear: if a party, by a positive act of the will, excludes sacramental dignity, the party contracts invalidly.23 The couple in this third example, therefore, who are able to marry in the Church because they conceal their true intentions from the priest are, nevertheless, entering an invalid marriage. And if, later, a tribunal is called upon to rule on the question of invalidity, and if their true intentions are proved, a constat decision is in order.

So three examples: the first involving two Protestants, the second a Protestant and a Catholic, and the third two Catholics. Together they give some idea of how canon 1101, §2 may, in practice, be applied to cases in which sacramental dignity is at issue.

D - The Jurisprudence Regarding Determining Error

1 - The Canon and Its Context

It was noted in the discussion on simulation that between the 1917 code and the 1983 code both the canon itself and the context of the canon changed. The same is true of error of law.

As regards the canon itself, in the 1917 code the canon on error of law (c. 1084) read: "Simple error concerning the unity or indissolubility or sacramental dignity of marriage, even though it is the cause of the contract, does not vitiate matrimonial consent." In the 1983 code the canon (c. 1099) was altered to read: "Error concerning the unity or indissolubility or sacramental dignity of marriage does not vitiate matrimonial consent provided that it does not determine the will."

So the 1917 code canon said, in effect, that simple error, that is to say, error as such, " _qua talis_ ," as Cappello said,24 does _not_ vitiate consent, whereas the 1983 code canon says, in effect, that error as such does vitiate consent whenever it determines the will.

The difference, as we shall see, is considerable.

As regards the context of the canon, it bears noting that the 1983 code revision of the earlier canon was prompted by developments in jurisprudence that had taken place over the years. While these developments did not necessarily occur in a linear or strictly chronological order, one can, nevertheless, say that, over the years, the following jurisprudential steps were taken along the road that finally led to the present formulation of canon 1099.

Step One: error (which is a false judgment of the mind or intellect) almost always remains in the intellect and only rarely influences the will to the point where a person, by a positive act of the will, excludes something that pertains to the essence of marriage. In a 1940 decision, for example, Heard said, "Those general ideas which many people have about marriage, especially in those countries where divorce is common, almost always remain in the intellect and do not become a real act of the will."25

Step Two: error, either because it is so intense or because it is joined to some triggering factor, easily spills over into the will and causes a positive act of exclusion. As early as 1938, for example, Pecorari said, "sometimes it is easily presumed that someone excluded the indissolubility of the bond on account of that person's erroneous concept about that indissolubility."26 And Heard, in 1942, wrote: "If there is a grave cause on account of which one of the parties seriously questions the advisability of marriage, it can easily happen that the person not only says in his mind that divorce is possible or has a vague proposal of obtaining a divorce but actually does positively intend to reject indissolubility.27

Step Three: error can determine the will not only by prompting the will, by a positive act, to exclude something essential (as in steps one and two) but also "by the force and effect of the error itself."28 As Sabattani said in a 1964 decision, "the defect is constituted by the fact that, given the presence of a very radical and therefore invincible error, the only object that the intellect presents to the will is a kind of dissoluble marriage, and it is to that that the will ultimately consents."29 And five years later, Pompedda noted, "Indissolubility ... can be excluded in two ways: either because a person who knows the correct doctrine regarding marriage nevertheless marries while retaining, even hypothetically, the faculty of dissolving the bond and recovering complete freedom, or because the contractant devises his or her own doctrine and (whether or not he or she is aware of that doctrine being repugnant to the thinking and discipline of the Church) totally adheres to it with mind and soul, and so, because the notion of indissolubility is absent from this doctrine, the contractant wishes to celebrate marriage in accord with and only in accord with this particular image of marriage.30

According to these jurists, in other words, error can exercise an invalidating influence either _indirectly_ (by causing the will to exclude, by a positive act, something essential) or _directly_ (by causing the person to choose a defective kind of marriage, that is to say, a "marriage" that lacks something that pertains to its essence). When error determines the will _indirectly_ (as it does in steps one and two), the error is a major factor resulting in _simulation_ , but when error determines the will _directly_ (as it does in step three) then it is the _error itself_ that vitiates the consent.

Clearly it was this development in jurisprudence that led to the present wording of the canon on error of law.

2 - Applying the Jurisprudence

It should be noted first of all that this development of jurisprudence was shaped almost exclusively in reference to the indissolubility of marriage; and within that context, step three, i.e., seeing error as an autonomous ground, seemed to capture, in legal terms, precisely what really goes on in the minds of certain people as they enter marriage.

Applying that jurisprudence not to indissolubility but to sacramentality, however, is another matter altogether. The basic principle, of course, is that when error about some essential component of marriage "pervades the person," as the jurists say,31 then the marriage will be invalid because the person will have entered a marital type contract that is substantially defective because it lacks something essential. When, however, one attempts to apply this principle to the following case, one immediately senses that the principle has been stretched beyond its valid limits:

A Lutheran pastor marries. Now Catholics and Lutherans, as we know, have very different sacramentologies. Catholics hold that there are seven sacraments and that marriage is one of them. Lutherans hold that there are only two sacraments and that marriage is not a sacrament. Lutherans believe that we are in error on this point; Catholics believe the same of Lutherans. In our view, therefore, when a Lutheran pastor (who is presumably committed wholeheartedly to Lutheran teaching) marries, he or she is in an error that pervades the person regarding sacramental dignity. But if we were to apply to sacramental dignity the principle that a truly pervasive, radical, deep seated error determines the will "by the force and effect of the error itself," then the marriage of every good Lutheran pastor and of millions of other Protestants who are learned in their faith, would, according to our jurisprudence, be invalid. Such a conclusion, however, is repugnant not only to common sense but to our ecclesial tradition as well.32 It seems, therefore, that canon 1099 is to be applied in one way to error about _indissolubility_ and in another way to error about sacramentality. When the canon is applied to indissolubility then the error can determine the will either directly (with the person intending to enter the only kind of marriage he or she knows, namely a dissoluble marriage) or indirectly (with the error prompting the person to exclude indissolubility by a positive act of the will). But when the canon is applied to _sacramental dignity_ then the error can only determine the will indirectly. In the case of the Lutheran pastor, therefore, the error, (according to our understanding), even though pervasive and deep seated, would not be determining error unless the pastor, for some reason, decided to exclude sacramental dignity by a positive act of the will.

E - Other Approaches

Besides investigating the validity of a marriage on the ground of either a positive exclusion of sacramentality or of determining error regarding sacramentality, three other approaches, perhaps more theological than canonical in nature, are possible. The first questions the adequacy of the inseparability doctrine; the second looks to whether faith is required for a valid sacrament; and the third asks whether the parties have the proper intention.

1 - Inadequacy of the Inseparability Doctrine

In the years before the 1983 code was promulgated, several authors argued, often with impressive reasoning, that the inseparability doctrine was based on an inadequate theology. Not every valid marriage between baptized persons, these authors held, should necessarily be recognized as a sacrament.33

The position taken by these authors, however, seems to lose some of its punch and persuasiveness when seen in light of the scholarly study by the International Theological Commission, the ITC, as it is called, which portrays the inseparability doctrine as firmly rooted in sound sacramental theology. The ITC was established by the Holy See in 1969 to study theological issues and to serve as a consultative body to the Congregation for the Doctrine of the Faith. In 1977, while Cardinal Seper was the president of the ITC and Philippe Delhaye, its secretary, a subcommission was appointed to deal with several questions regarding marriage. Five major themes were initially identified, and each of the five was assigned a director who wrote a working paper for discussions by the subcommission. One of the five themes entitled "Marriage as a Reality in the Order of Creation and Marriage as a Sacrament" was directed by Carlo Caffarra. Professor Caffarra's working paper was a thoroughly researched, sixty-one page outline of the historical and doctrinal aspects of the inseparability doctrine;34 and when the members of the subcommission met to discuss the paper, they agreed, in _Proposition 3.5_ , that when a marriage takes place between baptized Christians who sincerely believe that they are able to contract marriage without receiving the sacrament, "this relationship, even if it resembles marriage, cannot in any way be recognized by the Church as a non-sacramental conjugal union. For the Church, no natural marriage separated from the sacramental exists for baptized persons, but only natural marriage elevated to the dignity of a sacrament."35

Undoubtedly this stance by the ITC was a significant influence in the decision of the Commission for the Revision of the Code (which had earlier that year been asked to review the matter)36 to retain a version of the inseparability doctrine in the new code. And it is, of course, this version, the present canon 1055, that dominates both our present jurisprudence and our pastoral practice in this area.

2 - Lack of Faith

Catholic theology has, over the years, uniformly taught that in administering a sacrament, faith on the part of the minister is _not_ required. This was the clear position of St. Thomas Aquinas,37 of the Council of Florence in the Decree for the Armenians,38 and of the Council of Trent.39

When, however, the subcommission of the ITC met in 1977, another of the five major themes it agreed to study was "The Sacramentality of Marriage;" and it was under this heading that the non-necessity of faith on the part of the minister of the sacrament of marriage was revisited. The director of this theme was Professor, now Cardinal, Karl Lehmann, who noted that a theological revisiting of this issue was merited by the fact that in recent years an encroaching secularization had made such an impact on the religious consciousness of many Christians that "they are no longer in a position to contract a valid Christian marriage in the customary way."40 And, in his twenty-five page working paper, Lehmann's basic conclusion was, "In this context, we must maintain that a trace of faith is necessary, not only for the fruitful reception of a sacrament but also for the validity of that reception.41

When, however, the entire subcommission met to discuss Lehmann's paper and to draft a series of propositions on which an absolute majority could agree, Lehmann's conclusion was somewhat hedged. The pertinent sections of proposition 2.3 said: "Where there is no trace of faith (in the sense of _belief_ \- being disposed to believe), and no desire for grace or salvation, then a real doubt arises as to whether the marriage is validly contracted or not. As was noted, the personal faith of the contracting parties does not constitute the sacramentality of matrimony, but the absence of personal faith weakens the validity of the sacrarnent."42 This proposition with its talk only about a "real doubt" about validity and how an absence of faith only "weakens" validity was quite obviously a retreat from the harder position taken by Lehmann himself.

When, four years later, Pope John Paul II issued his apostolic exhortation, _Familiaris consortio_ , he apparently found even the softer version of proposition 2.3 unacceptable, and he warned about the grave risks involved in trying to lay down criteria that would concern the level of faith of those to be married. Specifically the pope spoke of the risk of making unfounded and discriminatory judgments and the risk of causing doubts about the validity of marriages already celebrated.43

Despite the pope's warnings about such risks, however, Monsignor, now Cardinal, Mario Pompedda wrote a twenty-six page article in 1987 on the juridic implications of the lack of faith on matrimonial consent, in which he reiterated and endorsed Lehmann's earlier statement that "a _trace of faith_ is necessary, not only for a _fruitful_ reception of the sacrament, but also for the _validity_ of such reception."44

But then, in John Paul II's allocution to the Rota in February of 2001, the pope said, "In drawing to a close, I would like to dwell briefly on the relationship between the natural character of marriage and its sacramentality, seeing that there have been frequent attempts since Vatican II to revitalize the supernatural aspect of marriage which include theological, pastoral and canonical proposals that are foreign to tradition, such as the attempt to require faith as a prerequisite for marriage." To require a faith that goes beyond that of marrying according to God's plan from the beginning, said the pope, "would be deeply contrary to the true meaning of God's plan."45

So at this point, it would seem, the dialogue is perhaps still alive but if so, just barely, at least for the present. By reason of canon 841, after all, it is for the supreme authority of the Church to approve or define those things which are required for the validity of the sacraments; and surely the Roman Rota, and presumably other tribunals as well, will now be following the pope's directive. This is not to say, of course, that the lack of faith is completely irrelevant, or cannot be used as evidence corroborating some legitimate ground, like error of law, for example; but it does say that, at present, lack of faith on the part of a contractant is not, in itself, a ground of invalidity.

3 - Lack of Intention

By the middle of the twelfth century it had become generally accepted by theologians that the sacraments of the Church were seven in number (the list was called the _Septenarium_ ) and that marriage was one of the seven.46 And almost from that same time it has been the constant teaching of the Church that, in order for the sacrament to be valid, the minister must have "the intention of doing what the Church does." This was the teaching of Aquinas,47 of the Council of Florence,48 and of the Council of Trent, which declared, "If anyone says that in the ministers, as they confer the sacrament, there is not required the intention of doing what the Church does, let him be anathema."49 In 1690, furthermore, the matter was clarified somewhat by a decree of the Holy Office under Pope Alexander VIII when it _condemned_ the following proposition: "A baptism is valid when conferred by a minister who observes every external rite and form but resolves to himself in his heart: I do not intend to do what the Church does."50

This teaching was initially formulated in the context, not of marriage but of baptism; and in that context its meaning was relatively clear. If, for example, a pagan baptized a child at the request of the child's Christian parents, the baptism would be valid provided that the baptizing pagan intended to do what the Christian parents (who were representing the Church) asked him to do. Even in this rather simple example, however, it was understood that the sense of the 1690 decree of the Holy Office would be operative; and that therefore it would not be sufficient for the pagan minister merely to perform the external rite of baptism but he would also have to understand that what he was doing was a sacred rite. This, according to Herve, was the common and certain opinion of the authors: that a merely _external_ intention on the part of the minister (i.e., the intention of placing a merely external rite) is not sufficient but that an _internal_ intention (i.e., the intention of placing a sacred rite) is required, even if one doesn't personally believe in it.51

When this principle is applied to the sacrament of marriage, it would seem that, in order for the marriage to be valid (given the inseparability doctrine) the baptized spouses, as the ministers of the sacrament, would, at the very least, have to have an internal intention of doing what other Christians do when they marry, that is to say, they would have to intend to do something at least vaguely sacred when they marry.

But if this is true, if this is really what Trent and the 1690 decree of the Holy Office are requiring for a valid marriage (and it seems to me it is), then how does it apply to the following situation?

Two thirty-year-olds marry. They were both baptized as Lutherans in infancy and received some religious instruction when they were very young at which time they may have heard from their Lutheran pastor that there are only two sacraments: baptism and the Lord's Supper. That, however, has probably been forgotten but, at any rate, is completely irrelevant. Neither of them has darkened a church door since their pre-teen years so when they marry they do so before a civil official. The groom takes the bride as his _lawful_ wife, and she takes him as her _lawful_ husband, and that's the sum and substance of it. Neither of them is religious; they do not see marriage as something sacred; it is not their intention in marrying to do what Christians do when they marry; indeed, if anything, they are intending to do what non-Christians customarily do when they marry, namely to get married.

Is such a marriage valid? It seems to me that it is not, because in marrying the spouses were never even minimally "intending to do what the Church does" in administering the sacrament, and among Christians, without a valid sacrament there is no valid marriage.

F - Conclusion

Much of what has been said here, not only in regard to these "other approaches" but also in regard to the jurisprudence outlined earlier in this paper, and how that jurisprudence might be applied to specific cases, is open to debate and to further clarification. This is partly because the issues themselves are still evolving and partly because, as Cardinal Lehmann pointed out, the pertinent circumstances are ever changing; but this, after all, is how jurisprudence works. It gestates, it develops _sensim sine sensu_ , and, one would hope, eventually wins us over _non ratione imperii sed imperio rationis._

2000

Return to TOC

**DOCUMENT ONE**

Proposition 3.5 of the International Theological Commission

Union of Christians Who Pay No Heed to the Requirements of Their Baptism

It would thus be contradictory to say that Christians, baptized in the Catholic Church, might really and truly step back and content themselves with a non-sacramental state. This would mean that they could be content with the shadow when Christ offers them the reality of his spousal love. Still we cannot exclude cases where the conscience of even some Christians is malformed by ignorance or invincible error. They come to believe sincerely that they are able to contract marriage without receiving the sacrament.

In such a situation, they are unable to contract a valid sacramental marriage because they lack any faith and lack the intention of doing what the Church does. On the other hand, they still have the natural right to contract marriage. In such circumstances they are capable of giving and accepting one another as spouses because they intend to contract an irrevocable commitment. This mutual and irrevocable self-giving creates a psychological relationship between them which by its internal structure is different from a transitory relationship.

Still, this relationship, even if it resembles marriage, cannot in any way be recognized by the Church as a non-sacramental conjugal union. For the Church, no natural marriage separated from the sacrament exists for baptized persons, but only natural marriage elevated to the dignity of a sacrament.

Reference: footnote 35

**DOCUMENT TWO**

Proposition 2.3 of the International Theological Commission: Baptism, Real Faith, Intention, Sacramental Marriage

Just like the other sacraments, marriage confers grace in the final analysis by virtue of the action performed by Jesus Christ and not only through the faith of the one receiving it. However, this does not mean that grace is conferred in the sacrament of marriage outside of faith or in the absence of faith. It follows from this - according to classical principles - that faith is presupposed as a dispositive cause of the fruitful effect of the sacrament. The validity of marriage, however, does not necessarily depend on whether or not it has the fruit of the sacrament. The existence today of baptized nonbelievers raises a new theological problem and a grave pastoral dilemma, especially when the lack of faith, or even the rejection of faith, seems clear. The intention of carrying out what Christ and the Church desire is the minimum condition required before consent is considered to be a real human act on the sacramental plane. The problem of the intention and that of the personal faith of the contracting parties must not be confused, but they must not be totally separated either.

In the final analysis, the real intention is born from and feeds on living faith. Where there is no trace of faith (in the sense of _belief_ \- being disposed to believe), and no desire for grace or salvation, then a real doubt arises as to whether there is the above mentioned general and truly sacramental intention and whether the marriage is validly contracted or not. As was noted, the personal faith of the contracting parties does not constitute the sacramentality of matrimony, but the absence of personal faith weakens the validity of the sacrament.

This gives rise to new problems for which a satisfactory answer has yet to be found, and it imposes new pastoral responsibilities regarding Christian matrimony. "Priests should first of all strengthen and nourish the faith of those about to be married, for the sacrament of matrimony presupposes and demands faith" ( _Ordo Celebrandi Matrimonium, Praenotanda 7_ ).

Reference: footnote 42

**DOCUMENT THREE**

Pope John Paul II, "Familiaris Consortio," Paragraph 68.

Precisely because in the celebration of the sacrament very special attention must be devoted to the moral and spiritual dispositions of those being married, in particular to their faith, we must here deal with a not infrequent difficulty in which the pastors of the Church can find themselves in the context of our secularized society.

In fact, the faith of the person asking the Church for marriage can exist in different degrees, and it is the primary duty of pastors to bring about a rediscovery of this faith and to nourish it and bring it to maturity. But pastors must also understand the reasons that lead the Church also to admit to the celebration of marriage those who are imperfectly disposed.

The sacrament of matrimony has this specific element that distinguishes it from all the other sacraments: it is the sacrament of something that was part of the very economy of creation; it is the very conjugal covenant instituted by the Creator "in the beginning." Therefore the decision of a man and a woman to marry in accordance with this divine plan, that is to say, the decision to commit by their irrevocable conjugal consent their whole lives in indissoluble love and unconditional fidelity, really involves, even if not in a fully conscious way, an attitude of profound obedience to the will of God, an attitude which cannot exist without God's grace. They have thus already begun what is in a true and proper sense a journey towards salvation, a journey which the celebration of the sacrament and the immediate preparation for it can complement and bring to completion, given the uprightness of their intention.

On the other hand it is true that in some places engaged couples ask to be married in church for motives which are social rather than genuinely religious. This is not surprising. Marriage, in fact, is not an event that concerns only the persons actually getting married. By its very nature it is also a social matter, committing the couple being married in the eyes of society. And its celebration has always been an occasion of rejoicing that brings together families and friends. It therefore goes without saying that social as well as personal motives enter into the request to be married in church.

Nevertheless, it must not be forgotten that these engaged couples, by virtue of their baptism, are already really sharers in Christ's marriage Covenant with the Church, and that, by their right intentions, they have accepted God's plan regarding marriage and therefore at least implicitly consent to what the Church intends to do when she celebrates marriage. Thus, the fact that motives of a social nature also enter into the request is not enough to justify refusal on the part of pastors. Moreover, as the Second Vatican Council teaches, the sacraments by words and ritual elements nourish and strengthen faith: that faith towards which the married couple are already journeying by reason of the uprightness of their intention, which Christ's grace certainly does not fail to favor and support.

As for wishing to lay down further criteria for admission to the ecclesial celebration of marriage, criteria that would concern the level of faith of those to be married, this would above all involve grave risks. In the first place, the risk of making unfounded and discriminatory judgments; secondly, the risk of causing doubts about the validity of marriages already celebrated, with grave harm to Christian communities, and new and unjustified anxieties to the consciences of married couples, one would also fall into the danger of calling into question the sacramental nature of many marriages of brethren separated from full communion with the Catholic Church, thus contradicting ecclesial tradition.

However, when in spite of all efforts, engaged couples show that they reject explicitly and formally what the Church intends when the marriage of baptized persons is celebrated, the pastor of souls cannot admit them to the celebration of marriage. In spite of his reluctance to do so, he has the duty to take note of the situation and to make it clear to those concerned that, in these circumstances, it is not the Church that is placing an obstacle in the way of the celebration that they are asking for, but themselves.

Once more there appears in all its urgency the need for evangelization and catechesis before and after marriage, effected by the whole Christian community, so that every man and woman that gets married celebrates the sacrament of matrimony not only validly but also fruitfully.

Reference: footnotes 22, 32 and 43

**DOCUMENT FOUR**

Excerpt from the Allocution to the Roman Rota

Pope John Paul II-February 2001

In drawing to a close, I would like to dwell briefly on the relationship between the natural character of marriage and its sacramentality, seeing that there have been frequent attempts since Vatican II to revitalize the supernatural aspect of marriage which include theological, pastoral, and canonical proposals that are foreign to tradition, such as the attempt to require faith as a prerequisite for marriage.

Shortly after the start of my pontificate, following the Synod of Bishops on the family which discussed this topic, I addressed it in _Familiaris consortio_ , writing in 1980: "The sacrament of matrimony has this specific element that distinguishes it from all the other sacraments: It is the sacrament of something that was part of the very economy of creation; it is the very conjugal covenant instituted by the Creator" (No. 68: _AAS_ , 73. 163). Consequently, the only way to identify the reality that was linked from the beginning with the economy of salvation and that in the fullness of time is one of the seven sacraments of the new covenant in the proper sense is to refer to the natural reality presented to us by Scripture in Genesis (1:27; 2:18-25). This is what Jesus did in speaking about the indissolubility of the marital bond (cf. Mt. 19:3-12; Mk. 10:1-2), and.what St. Paul did in explaining the nature of the "great mystery" which marriage has "in reference to Christ and the church" (Eph. 5:32).

Matrimony, moreover, while being a "sign signifying and conferring grace," is the only one of the seven sacraments that is not related to an activity specifically ordered to the attainment of directly supernatural ends. For the ends of marriage are not only predominantly but properly "by its very nature" the good of the spouses and the procreation and education of offspring (Canon 1055).

A different viewpoint would consider the sacramental sign to consist in the couple's response of faith and Christian life; thus it would lack an objective consistency allowing it to be numbered among the true Christian sacraments. To obscure the natural dimension of marriage, therefore, with its reduction to a mere subjective experience, also entails the implicit denial of its sacramentality. On the contrary, it is precisely the correct understanding of this sacramentality in the Christian life which spurs us to a new estimation of its natural dimension.

On the other hand, to introduce requirements of intention or faith for the sacrament that go beyond that of marrying according to God's plan from the "beginning" - in addition to the grave risks that I mentioned in _Familiaris consortio_ (No. 68): unfounded and discriminatory judgments, doubts about the validity of marriages already celebrated, particularly by baptized non-Catholics, would inevitably mean separating the marriage of Christians from that of other people. This would be deeply contrary to the true meaning of God's plan, in which it is precisely the created reality that is a "great mystery" in reference to Christ and the Church.

Reference: footnote 45

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ENDNOTES

1 Aurelio Sabbatani, "L'evolution de la jurisprudence dans les causes de nullite de mariage pour incapacite psychique," _Studia Canonica_ 1 (1967) 143-161, esp. 144-145.

2 Actually c. 1086§2 spoke of "some essential property of marriage" but c. 1013 had defined the essential properties of marriage as unity and indissolubility.

3 _Communicationes 3_ (1971) 76.

4 The members of the college of cardinals, conferences of bishops, dicasteries of the Roman Curia, faculties of canon law and superiors of institutes of consecrated life.

5 _Communicationes 9_ (1977) 373-374.

6 Ibid., 374-375.

7 Zenon Grocholewski, "Crisis doctrinae et iurisprudentiae rotalis circa exclusionem dignitatis sacramentalis in contractu matrimoniali," _Periodica 67_ (1978) 285.

8 Ibid., 286.

9 Ibid., 293.

10 Ibid., 293-294.

11 Ibid., 295.

12 _Codex Iuris Canonici, Schema Patribus Commissionis Reservatum_ (Rome: Libreria Editrice Vaticana, 1980) 382 pages, 1728 canons.

13 The _Relatio_ was later published in _Communicationes_. Canons 1- 502 appear in vol. 14 (1982) 116-230; canons 503-788 in 15 (1983) 57-109; canons 789-1204 in 15 (1983) 170-253; and canons 1208-1722 plus the canons from the _Lex Ecclesiae Fundamentalis_ in 16 (1984) 27-99.

14 This canon, correctly listed as c. 1053 on page 257 of the original _Relatio_ , was incorrectly listed in _Communicationes 15_ (1983) 233 as c. 1054.

15 Although Archbishop Falcao is identified by name on page 257 of the original _Relatio_ , he is identified only as "tertius pater" in _Communicationes 15_ (1983) 233.

16 Pontificium Consilium de Legum Textibus Interpretandis, _Congregatio Plenaria diebus 20-29 octobris 1981 habita_ (Rome: Typis Polyglottis Vaticanis, 199l) 637 pages. See esp. pp. 452-460.

17 On November 25, 1981, one month after this meeting took place, Cardinal Ratzinger was named prefect of the Congregation for the Doctrine of the Faith. Cardinal Seper was gravely ill at the time and died on December 30.

18 For Cardinal Ratzinger to have so easily persuaded the group to abandon the position of the Doctrinal Congregation and endorse his own, one suspects that his imminent appointment as prefect of that congregation was known to the group.

19 Lawrence Wrenn, _The Invalid Marriage_ (Washington: CLSA, 1998) 119-120.

20 Petrus Gasparri, _De Matrimonio_ (Typis Polyglottis Vaticanis, 1932) par. 827 and 907. But for a dissenter, i.e., a precursor of the Grocholewski position, see Coronata, p. 628, par. 465.

21 In the course of its decision the tribunal could have noted that just as a party might accept marriage as a _permanent_ , i.e., stable or long lasting state, and, at the same time exclude _perpetuity_ , i.e., indissolubility, so a party may accept marriage as some thing _sacred_ and, at the same time, exclude sacramental dignity.

22 John Paul II, _Familiaris consortio,_ par. 68. _AAS_ 74 (1982) 165. For the English translation see _The Role of the Christian Family in the Modern World_ (Boston, St. Paul Editions, 1981) 103. For the complete text of paragraph 68, see document three.

23 The pope seems to be requiring an explicit exclusion; jurisprudence, however, has always recognized an implicit exclusion as equally invalidating.

24 Cappello, 517, para. 588.

25 _Sacrae Rotae Romanae Decisiones_ ( _SRRD_ ) 32 (1940) 110.

26 _SRRD_ 30 (1938) 619.

27 _SRRD_ 34 (1942) 167.

28 From the decision coram Sabattani of December 11, 1964. _SRRD_ 56 (1964) 927-928.

29 _SRRD_ 56 (1964) 930.

30 _SRRD_ 61 (1969) 691.

31 See, for example, _SRRD_ 88 (1996) 401.

32 _Familiaris consortio_ , n. 68. See footnote 22 and document three.

33 See, for example, William LaDue, "The Sacramentaliy of Marriage," _CLSA Proceedings_ (1974), 25-36; Walter Cuenin, "TheMarriage of Baptized Non-Believers: Questions of Faith, Sacrament and Law," _CLSA Proceedings_ (1978), 38-48; Ladislas Orsy, "Christian Marriage: Doctrine and Law: Glossae on Canons 1012-1015," _The Jurist_ 40 (1980) 283-348; and idem, "Faith, Sacrament, Contract and Christian Marriage: Disputed Questions," _Theological Studies_ 43 (1982) 379-398.

34 Carlo Caffarra, "Marriage as a Reality in the Order of Creation and Marriage as a Sacrament" in _Contemporary Perspectives on Christian Marriage: Propositions and Papers from the International Theological Commission_ (hereafter Contemporary Perspectives), ed. Richard Malone and John Connery (Chicago, Loyola University Press, 1984) 117-180. See also Michael J. Himes, "The Intrinsic Sacramentality of Marriage: The Theological Ground for the Inseparability of Validity and Sacramentality in Marriage," _The Jurist_ 50 (1990) 198-220.

35 Ibid, 22. For the complete text of this proposition, see document one.

36 _Communicationes 9_ (1977) 122.

37 _ST_ , IIIa, Q. 64, a. 9, ad primum.

38 Denzinger-Rahner, _Enchiridion Symbolorum_ , editio 3la. (DR) (Freiburg: Herder, 1957) 696. See also c. 742, §1 of the 1917 code and c. 861, §2 of the 1983 code.

39 Canon 4, in DR 860.

40 _Contemporary Perspectives_ , 100.

41 Ibid., 105.

42 Ibid., 15. For the complete text of this proposition see document two.

43 John Paul II, _Familiaris consortio_ , par. 68. See footnote 22 and document three.

44 Mario Pompedda, "Fede e sacramento del matrimonio," _Quaderni di Studio Rotale_ 2 (1987) 69, fn 56. A translation of this article by Thomas Doran appeared in _Marriage Studies IV_ , ed. John Alesandro (Washington: CLSA, 1990) 49, fn 57 (the different enumeration of the footnotes results from note 39 bis in the Italian being rendered as note 40 in the English).

45 _Origins_ 30/36 (February 22, 2001) 581- 583. For a fuller quotation from this section of the allocution see document four.

46 Edward Schillebeeckx, _Marriage, Human Reality and Saving Mystery_ (New York: Sheed and Ward, 1965) 328. For a listing of the official documents regarding the Septenarium, see J. M. Herve, _Manuale Theologiae Dogmaticae_ (Westminster: Newman, 1946) 3: 411-412.

47 _ST_ IIIa, Q 64, a. 8, Respondeo et ad primum.

48 DR, 695.

49 Canon 11, in ibid., 854.

50 Ibid., 1318, Prop. 28.

51 Herve, 484.

# ARTICLE SEVEN

## INVALID CONVALIDATIONS

Tribunal personnel in search of new sources of nullity might well look in the direction of the convalidation. This is not a _new_ source really. It is an old one, but virtually untapped.

The canons on convalidation impose some very special and rather rigorous requirements on the parties, and we are being remiss if we fail to investigate first of all whether our clients were involved in a convalidation and, if so, whether they met those demanding requisites of the canons.1

Before these requisites are discussed, it would no doubt be a service to the reader simply to quote in full the five canons under discussion, those namely which deal with the simple convalidation.

THE PERTINENT CANONS

_Canon 1133_ , §1. In order to validate a marriage which is invalid because of a diriment impediment, it is required that the impediment cease or be dispensed, and that consent be renewed at least by the party who is aware of the impediment.

§2. This renewal of consent is required by ecclesiastical law for the validity of the marriage, even though both parties gave their consent in the beginning and have not revoked it.

_Canon 1134_. The renewal of consent must be a new act of the will having for its object the marriage which is known to have been invalid from the beginning.

_Canon 1135_ , §1. If the impediment is public, consent must be renewed by both parties in the form prescribed by law.

§2. If it is occult and known to both parties, it is sufficient that consent be renewed by both parties privately and secretly.

§3 If it is occult and unknown to one of the parties, it is sufficient that only the party who is aware of the impediment renew his consent privately and secretly, provided the other party perseveres in the consent once given.

_Canon 1136_ §1 A marriage which is invalid for defect of consent is validated if the party who had not consented, now consents, provided the consent given by the other party continues to exist.

§2 If the defect of consent was merely internal, it is sufficient that the party who had not consented, give his consent interiorly.

§3 If it was also external, it is necessary to manifest consent also externally, either according to the form prescribed by law, if the want of consent was public, or in some other way privately and in secret, if it was occult.

_Canon 1137_. In order that a marriage which is invalid for defect of form be made valid, it must be contracted anew in the form prescribed by law.

THE NEED TO EXPRESS NEW CONSENT

The first thing to be noted about these canons is that they are divided into three sections. The first three canons refer to a marriage that was initially null because of a _diriment impediment_ , the next canon to a marriage null from _defect of consent_ and the final canon to a marriage null because of _defect of form_.

Once one is aware of this threefold division, one is immediately tempted to conclude that the need to renew consent mentioned in the first section applies, because of its positioning, _only_ to the first section and not to all three, certainly not to the third section which treats of a marriage null by reason of defect of form.2

It is significant, however, that canon 1137, speaking of a marriage null because of defect of form, says that "it must be contracted anew" ("contrahi denuo debet") and not merely that it be convalidated or that the consent be expressed in legitimate form.

It is no doubt partly because of this wording and partly because of the very nature of a convalidation (which we shall examine later) that Bender is able to say that "all canonists" agree that the need to renew consent should not be restricted to the first section or to the first two sections but should be applied to all three.3

This is further borne out by a rotal decision coram Rogers of January 21, 1969, in which it is stated that

even though once marital consent is placed it is presumed to persevere until its revocation has been proved (can. 1093), nevertheless the positive law of the Church demands a renewal of consent for the convalidation of a marriage which was contracted by a baptized person but which was invalid _either_ because of a diriment impediment or because of defect of consent or because of defect of form.4

Nor is this a casual remark by Rogers. It is rather an arrow aimed directly at the contrary opinion of a lower court. This sentence of Rogers is, in fact, the rotal decision in the case known in _The Tribunal Reporter_ as Higgins v. Moon5 which was a case involving Mary Higgins, Catholic, and Elmer Moon, Methodist, who had initially been married by a Methodist minister and some nine months later went through a validation ceremony.

The court of first instance of the Archdiocese of Dubuque rendered an affirmative decision in this case on the grounds that Elmer, who had agreed to the validation ceremony reluctantly and only to satisfy Mary, had not given a new consent at the time of the convalidation. Their appeal court, however, reversed Dubuque's decision on the grounds that a new consent, although admittedly not given, was not required. The appeal court argued that the new consent requirement refers only to the first grouping of canons mentioned above (when a marriage is null because of a diriment impediment) and not to the third section (when the marriage is null because of defect of form). And the appeal court concluded further that when the parties externally exchange consent before a priest in a validation ceremony it must be proved, in order to declare the marriage null, that one or both parties excluded consent by a positive act of the will in what amounts to classical total simulation. A mere negative omission of a new consent, they argued, would not invalidate the marriage.

It was this whole line of reasoning that was rather summarily rejected by Rogers when he declared in the plainest terms possible that _new_ consent is required even when the marriage was null because of defect of form.

THE PREREQUISITES FOR EFFECTIVE NEW CONSENT

Having seen then that the new consent requirement applies to all three categories of convalidations, we turn now to certain prerequisites that must be present in order that the new consent be effective. The first prerequisite refers to the "other party," that is, the party from whom the new consent is not required. The second prerequisite refers to the cause of nullity itself and the third to the consenting party.

1 - Perduring Consent of the Other Party

Whenever the new consent is required of only one party, as happens, for example, when only one party simulated and did so occultly, the consent of the other party must perdure in order for the convalidation to be valid. This perduring of consent is presumed by canon 10936 but like all presumptions it cedes to the truth. So the alert advocate and indeed the court itself should not fail to investigate the circumstances of the marriage at the time of the convalidation (whether, for example, the marriage was on the verge of collapse) and anything else which might shed light on the mind and intent of the other party.

2 - Purgatio

When the marriage was invalid by reason of either an impediment or force and fear, then a _purgatio_ is required, that is to say, the cessation of the cause of invalidity. This is explicitly required by canon 1133, §1. However, a _purgatio_ is a fact, and a fact is never presumed but must be proved. Or to put it the other way around, just as consent is presumed to perdure (in canon 1093) so is any other fact. Fear too is presumed to persevere at least as long as the cause of the fear remains on the scene. Indeed several rotal decisions suggest that fear can, in fact, perdure for many years and that, furthermore, simply because a couple continues to cohabit in apparent peace is no proof that the fear has been purged.7

3 - Knowledge of Nullity

Canon 1134 says that the renewal of consent we have been talking about "must be a new act of the will having for its object the marriage which is known to have been invalid from the beginning in (in matrimonium quod constet ab initio nullum fuisse)."

This gives rise to several questions. The first is: is it required that the person consider the marriage _certainly_ invalid or is it enough if he considers it _doubtfully_ invalid? Cappello, perhaps because the canon uses the word "constet," holds that a doubt about the validity of the marriage would not per se suffice.8 The obvious implication here is that per accidens a doubt _would_ suffice. Thus Bender is not really disagreeing with Cappello when he says that the sense of this canon certainly is that the person who is required to renew consent must know that the marriage was either certainly invalid or doubtfully invalid so that he will renew consent either absolutely or ad cautelam. The only point, after all, is that the person renewing consent ought to know why he is acting.9

The second question regarding knowledge of nullity is this: is it required that the person himself consider or know the marriage to be invalid or at least have a personal doubt about the validity or, on the other hand, is it sufficient that he know that somebody else, for example, the Catholic Church, considers it invalid?

In the Law Section of the Higgins v. Moon sentence, the Dubuque Tribunal concluded that the latter was sufficient, that if Elmer Moon knew the Catholic Church considered his marriage invalid, that was enough for him to renew consent. If the Dubuque Tribunal had stuck to that, it would logically have rendered a negative decision but in _the Argument Section_ it reversed itself in practice and concluded that even though Elmer knew _the Church's_ attitude towards the marriage, nevertheless he _personally_ regarded the initial ceremony as entirely valid and would not therefore have indulged in the absurd tautology of giving to his wife and receiving from her rights which had already been transferred nine months before.

This was undoubtedly the proper conclusion. The guidelines the Dubuque Tribunal laid down for itself in _the Law Section_ were actually deceiving and pointed in the wrong direction but the judges managed to sniff out the truth anyway.

James Brennan, who in 1937 wrote a dissertation on the simple convalidation, would certainly agree that what is required for a valid convalidation is _personal_ knowledge of or doubt about invalidity. The determinant is not what a person thinks other people think about the validity of the marriage but what he himself thinks about it. Brennan says:

In order that the renewal of consent be a new act of the will it is necessary that it be made with the knowledge that the former consent is invalid. This is deduced from the canon itself, which demands that the consent be given to a marriage "which it is evident was null from the beginning." It is intimated also in the following canons, 1133, §1, and 1135, §3, which state the consent must be renewed by the one who is "conscious of the impediment." The reason for this prescription of ecclesiastical law is found in the maxim - nil volitum nisi praecognitum. A person cannot give a valid consent to a new marriage unless he knows that he is contracting a new marriage and not merely confirming a former consent. And he cannot know that he is contracting a new marriage until he realizes that his former marriage is invalid. Unless he is aware that his marriage is invalid, the second consent is directed not to forming a new contract but to confirming a former union which is thought to be valid. That is all the person intends and his act cannot produce any effects beyond the intention, and hence cannot produce a new and valid marriage.

If a person, for example, who erroneously considers himself to be validly married, renews his consent to that marriage and continues to live with his partner, exercising all the duties and the privileges of married life, he does not in any sense convalidate that marriage, as long as the error exists. He merely exercises his rights in view of the former consent.10

Finally, the third question about canon 1134: is knowledge of nullity required even when the marriage was null because of defect of form? Cappello answers this question in the negative,11 and that is understandable enough, especially when one of the parties to the marriage is non-Catholic.

After all, how can the Church seriously expect a non-Catholic to regard his marriage as invalid; even doubtfully invalid, simply because it was not performed by a Catholic priest?

On the other hand, Cappello, along with "all canonists," does require that there be a genuine renewal of consent when the marriage was null because of defect of form, and it is not at all clear how you can have one without the other. How can a man be expected to transfer to his wife a right which he knows he no longer owns but which is already possessed by his wife?

Perhaps Cappello is here reflecting what might be called a chancery viewpoint in not wishing to make excessive _ante factum_ demands on the parties as they prepare to have their marriage validated. But tribunal people, making a _post factum_ judgment on the validity of that validation, have a different viewpoint. For them knowledge of nullity is required even when the marriage was null by reason of defect of form and even where one of the parties was not Catholic. Wynen, for example, wrote, "Whenever a renewal of consent is required in the form prescribed by law ... which is always true in a marriage that was null by reason of defect of form ... then it follows from the very nature of things that the parties contracting again before the pastor and witnesses should know that the former marriage was null and should elicit a new consent."12 And Rogers in the sentence already cited, said,

Furthermore one who is not only unaware of the invalidity of the former marriage but who positively argues for its _validity_ is clearly impeded from placing a new consent. If he repeats the words expressing consent in the validation ceremony, he is doing one of two things, either totally simulating consent or confirming an inefficacious consent; but in neither case is a true marriage effected.13

For tribunal people, therefore, not only is a renewal of consent required in all three cases but so is knowledge of nullity.

THE QUALITIES OF CONSENT

Besides the pre-requirements we have just discussed, on the part of the other party, the cause of nullity and the consenting party, certain new requirements or qualities of the consent itself should be adverted to briefly.

First of all the consent to a convalidation must be NEW, i.e. not a confirmation or reiteration of the old. On this subject Brennan writes:

Canon 1134 defines the act of renewal of consent as an "act of the will consenting to a marriage which is known to have been null from the beginning." From this it is seen that the renewal of consent is, in reality, a new consent, a new act of the will distinct from and independent of the first act. It is separated from the first in time and in continuity and is entirely and thoroughly individual. The mind realizes the first consent was defective or at least ineffective, and now gives a new consent. It may have happened that in contracting the marriage no consent was given, or the consent may have been given, but ineffectively, because of an impediment or of failure to observe the canonical form. In either case the new consent given in the convalidation is called the renewal of consent.

It may be defined as an act of the will which here and now intends to contract a new marriage, to give and to receive at this moment the perpetual and exclusive rights peculiar to the marriage contract. An example will make the definition more clear. Two persons have contracted what they considered to be a valid marriage. They discover after a certain time that in reality their marriage is invalid because of a diriment impediment. In order now to convalidate it they must, after the removal of the impediment, make a new intention to marry and by a new act of the will give an entirely new consent. Unless they make this new act the marriage will remain invalid. For according to Church Law there must be a new act of the will, directed to forming a new marriage with the knowledge that the former is invalid. But by means of the new act the invalid union is made a valid and true marriage and obtains all the effects of marriage both as sacrament and as contract.

The renewal is not, consequently, a mere continuance of the former consent nor a perseverance in it. It is not a renewal if two parties to a marriage should say "We renew now the consent we gave at the time we first contracted marriage." Nor is it an act which only confirms the former consent as if they added an oath to strengthen it. Neither is it a merely interpretative renewal, that is, an act or renewal of consent which would take place if the parties knew that it was necessary. For example, two persons are not aware that their union is invalid, but if they did know they would renew consent. Evidently in such a case there is no new act at all and hence it cannot produce any effect.14

Secondly, convalidational consent, even though it must be new, need not be actual: VIRTUAL consent suffices. If, for example, a marriage were to be convalidated by proxy, it would obviously suffice if the absent party gave new consent to the convalidation even though that new consent were not actually formulated at the moment of the ceremony but were only virtually perduring.

And finally this consent need not always be explicit or even express but sometimes it may be IMPLICIT or even TACIT.15 Suffice it for now simply to mention that this is so. The specifics will be discussed in some detail in the final section of this paper.

THE LAW REQUIRING NEW CONSENT

**1** \- When the marriage was null because of a _diriment impediment_ , new consent is required only by ecclesiastical law.16 Therefore:

**a** \- Two non-baptized people are not required to renew consent when the marriage was null because of a diriment impediment. If, for example, two Jewish people married while the woman was impeded by ligamen, the marriage would be immediately and ipso facto validated by the death of her former spouse. No new consent would be required.17

It should perhaps be noted, however, that we are here discussing convalidations, which refer not to concubinage but to invalid marriages. So, if our Jewish couple simply started living together in concubinage while the woman's first husband was alive, then no second marriage would be effected on his death without renewing or rather placing for the first time marital consent. This, no doubt, goes without saying.

**b** \- Unlike two unbaptized people, two baptized Protestants _are_ considered bound by this ecclesiastical law to renew consent when the marriage was null because of a diriment impediment.18 This follows from the general principle that Protestants, as all authors agree, are subject to ecclesiastical law whenever it refers to the public good. And it might also be considered to follow by way of inference from the Holy Office's response of June 30, 1949, that baptized non-Catholics are held to canon 1088, §1, requiring that marriage contractants be present either personally or by proxy for the exchange of consent.19 If they are bound to canon 1088, in other words, then they are equally bound to canon 1133. So, should two Protestants marry while one party was impeded by ligamen or perhaps nonage, then the marriage would not be ipso facto validated on _purgatio_ but a renewal of consent would be required. And, as Ganter notes,

such renewal is hardly ever given in a contested marriage involving non-Catholics inasmuch as ordinarily they consider the prior bond already duly dissolved by a decree of civil divorce, and hence, even if they are aware of the death of a former spouse, or cessation of some other impediment, they do not regard this event as having any effect on the bond of their marital union.20

It should be remembered, however, that even though Protestants are required to renew consent, they are not required to do so in any particular form. Presumably, at any rate, since the Church dispenses them from the form of _celebration_ of marriage,21 she also dispenses them from the form of _convalidation_.

**c** \- When one party is baptized and the other party non baptized, it is generally agreed, since "matrimonium non claudicat," that both parties are bound to renew consent, the baptized party directly, the non-baptized indirectly.

**2** \- When the marriage was null because of _defect of form_ then clearly the renewal of consent is, once again, required only by ecclesiastical law. Or perhaps it would be more precise to say that in this case renewal of consent is _ordinarily_ required; since, however, it is the Church's law, the Church may dispense·from it and in fact does so whenever a sanation is granted.22

**3** \- When, however, the marriage was null because of a _defect of consent_ , then, of course, it is not only ecclesiastical law but the natural law itself which requires the consent, for consent is the efficient, irreplaceable, indispensable cause of marriage.23 If, therefore, two non-baptized people married intending only a trial marriage and later decided to make it indissoluble, then clearly it would be necessary for them to give a new marital consent.

At this point something should be said about the marriage that is null because of force and fear. The force and fear case does not exactly fit into any of the three categories we have been discussing (marriages null because of an impediment or defect of consent or defect of form) but should certainly be included here under defect of consent because this is where the Code of Canon Law locates it.24 The practical application of this classification is that if force invalidates the marriage of two unbaptized people, as it most likely does,25 then such a marriage would not be ipso facto validated on _purgatio_ as it would were the marriage invalid by reason of an impediment. In other words, non baptized people, like everyone else, must renew consent after the force and fear have retired or been purged.26

THE MANNER OF EXPRESSING NEW CONSENT

The canons spell out in great detail the manner in which this new consent is to be expressed. Perhaps the reader will find it helpful if this is first outlined in schematic form, after which some brief comments will be made.

Impediment

Public - both in form

Occult known to both - both privately and secretly

Occult known to one - one privately and secretly

Defect of Consent

Internal - one interiorly

External public - both in form or externally

External occult - one or both secretly but externally

Defect of Form

Public - both in form

Occult - both in form

As regards the marriage that was null because of a _diriment impediment_ , perhaps it should be noted one final time that the _need_ to renew consent only binds baptized people and the _form_ for renewing consent binds only Catholics. The schema indicates, for example, that when the impediment is public consent must be renewed by both parties in the form prescribed by law. This, though, must be understood in the light of all that has been said thus far, so that in fact non-baptized people don't have to renew consent at all and Protestants do but not in any particular form.

When the marriage was null by reason of a _defect of consent_ , it is interesting to note the perfect proportionality between the defect and its correction, that whenever the defect is external, whether it be public27 or occult, the defect must be corrected externally and that when it is publicly external it must be corrected publicly.28 This, of course, is to avoid the absurdity of having a marriage that is publicly invalid privately validated.

Two cases heard before the Rota are illustrative of this jurisprudence. Both refer to force and fear cases but these, as we have seen, are properly classified for present purposes as marriages null because of defect of consent.

The first case refers to a certain Florence and Paul, both baptized Protestants, who were married on December 25, 1918, and divorced in 1922. In 1934, Florence became a Catholic and attacked the marriage on the grounds of force and fear. The case was heard coram Jullien, who said:

Two non-Catholics can convalidate a marriage which is null because of some defect of consent as long as, when the fear has ceased, the person is aware of the defect and gives new consent either expressly or tacitly29 by freely having intercourse or by willingly cohabiting for a period of time that would be morally sufficient to prove that a new consent had been given. Always provided, of course, that the other spouse had not revoked his original consent.30

The other case is that of Consuelo Vanderbilt and Charles Duke of Marlborough who were married on November 6, 1895. They separated in 1905 and were divorced in 1920. In 1925 Consuelo, petitioned the nullity of the marriage on the grounds of force and fear. Quattrocolo said:

As a final consideration, it should be noted that the marriage contracted by Consuelo under grave fear was not sanated by any kind of ratification. Because in order to have a validation of consent, it would be required that the petitioner knew about the nullity of the marriage and the defect of consent and that she then renewed her marital consent while the union was still in progress. Furthermore, it is improbable that Consuelo would have been endowed with canonical knowledge about invalidating impediments. Protestants know even less about such things than Catholics, and besides Consuelo is a woman and this kind of knowledge is never presumed in women but has to be proved.31

Finally, just a brief concluding remark on the manner of expressing consent when the marriage was null by reason of _defect of form_. What is particularly noteworthy is that the law no longer retains that proportionality which characterized it when the marriage was null because of a defect of consent. But in all cases of defect of form, whether public or occult (as might happen, for example, when the priest was improperly delegated) the correction of the defect must be public. This may be due, as Bender suggests,32 either to the legislator's oversight or to his desire not to unduly complicate the law. Perhaps the legislator decided that the case would be so rare that it did not merit special legislation.

This is, in general, a prudent approach to law because when the legislators of a society become excessively complex in writing the law, the people become excessively slow in learning and implementing the law, and in the end law is discredited and ill served. Perhaps, indeed, the law on the "simple" convalidation is already too complex and not nearly simple enough. Perhaps this accounts for its being so misunderstood, or rather non-understood.

1972

Return to TOC

ENDNOTES

1 In our own diocese there were 6786 marriages in 1970. Of those marriages 384 were convalidations and 123 of the convalidations involved one non-Catholic party. In practice. as we shall see. the fact that one party is non-Catholic can be an important factor.

2 It is obvious that when a marriage is null because of defective consent it cannot be validated without renewing consent or rather placing consent for the first time. It is not so obvious that a brand new consent is required when the marriage is null because of defect of form and since canon 1134 seems firmly locked into the first section and out of the third. one is tempted to conclude that when a marriage is null because of defect of form it is sufficient if the old, former, initial consent perdures.

3 Ludovicus Bender. _Forma Iuridica Celebrationis Matrimonii,_ (Rome: Desclee. 1960). p. 218.

4 Quamvis consensus maritalis semel praestitus praesumitur perseverare, donec de eius revocatione constiterit (can. 1093), attamen positivi iuris dispositio exigit renovationem consensus pro convalidatione simplici matrimonii a baptizato invalide contracti ob impedimentum dirimens, vel ob defectum consensus vel denique ob defectum formae. P. N. 8814.

5 Adam J. Maida (ed.). _The Tribunal Reporter_ (Huntington: Our Sunday Visitor Inc.) pp. 15 ff.

6 Can. 1093, Esti matrimonium invalide ratione impedimenti initum fuerit, consensus praestitus praesumitur perseverare, donec de eius revocatione constiterit.

7 _S.R.R.D._ 4, 314; 4, 469; 18. 176; 49, 38.

8 Felix Cappello. _De Sacramentis, Vol. V. De Matrimonio,_ (Rome: Marretti. 1961). n. 844, p. 782.

9 Sensus evidenter est: quod constat nullum fuisse aut constat esse dubie invalidum ita ut consensus renovetur ad convalidandum sive simpliciter sive ad cautelam. Persona renovans debet scire qua de re agitur. Ludovicus Bender, _op. cit._ p. 218. n. 6. (Bender's clever use of the word·"constat" should not be missed.)

10 James H. Brennan, _The Simple Convalidation of Marriage_ (Washington: Catholic University, 1937). p. 32.

11 Felix Cappello, _op. cit._ n. 849, 3.

12 Quoties autem praescribitur renovatio consensus·"forma iure praescripta" ... quod semper exigitur in convalidatione matrimonii invalidi ob defectum formae ... tunc utique ex natura rei sequitur, quod noviter contrahentes coram parocho et testibus sciant prius matrimonium fuisse nullum et quod utraque pars novum eliciat consensum. _S.R.R.D._ 32, 432.

13 Qui autem non solum ignorat invaliditatem prioris matrimonii, sed pro validitate eiusdem profecto pugnat, certo certius impeditur quominus novum consensum ponat: si verba consensum exprimentia denuo pronuntiet, nihil aliud intendere valet quam aut consensum totaliter simulare aut consensum inefficacem confirmare: in neutro autem casu verum matrimonium gignitur. P. N. 8814.

Besides the principal thrust of Rogers' remarks, it should also be noted that in the last line Rogers is explicitly rejecting the contention of Dubuque's appeal court that, in a validation of a marriage null by reason of defect of form, the exchange of consent is no different from any other consent; to prove it null you must prove simulation, i.e. the exclusion of the consent by a positive act of the will. Rogers is here rejecting that position and declaring that, although simulation could be present. a court does not have to have proof of that much. One does not have to prove that the consent was positively excluded. It suffices to prove that it was not positively placed. It is, in other words, not exclusion but mere omission that must be proved. And total simulation is not necessarily the proper _caput nullitatis_.

14 James Brennan. _op. cit._ pgs. 30-31.

15 Consent may be either _tacit_ , (when it is in no way externalized but remains completely interior) or _express_ , (when it is externalized either explicitly, i.e. in so many words, or implicitly, i.e. by words or actions which may be interpreted to mean the same thing).

16 Can. 1133. §2.

17 This has clear practical import when the Jewish couple divorces and one of them, wishing now to marry a Catholic, approaches the tribunal asking for the marriage to be declared null on the grounds of ligamen. It is, in this case, obviously necessary for the tribunal to determine that the first spouse was alive not only at the time of the second ceremony but indeed throughout the duration of the marriage.

18 See Giuseppe Damizia, "Convalidazione dei matrimonii nulli contratti da acatholici," _Apollinaris_ , 1966. pp. 93-98.

19 T. Lincoln Bouscaren (ed.). _The Canon Law Digest_ (Milwaukee: Bruce) 111. 446.

20 Bernard J.Ganter, "Problems of Simple Convalidation and Sanatio in Radice," _The Jurist_ , 21 (1961) 58.

21 Can. 1099.

22 Perhaps, indeed, the parish priest would be well advised to apply for a sanation whenever he judges that the validation is advisable but that one of the parties, even after discussion, remains convinced that the marriage is already valid.

23 Can. 1081, §1. Matrimonium facit partium consensus inter personas iure habiles legitime manisfestatus; qui nulla humana potestate suppleri valet.

24 In the Code's treatment of marriage, the canon on force and fear, canon 1087, is included not in Chapter II, entitled "De Impedimentis" but in Chapter V, entitled "De Consensu Matrimoniali."

25 Felix Cappello. _op. cit._ n. 609.

26 The classification of force and fear under consent rather than under impediments is academic as regards baptized people since they would be bound to renew consent anyway.

27 The word "public" has two senses in the Code of Canon Law. It means demonstrable in canon 1037 (regarding impediments) and, it means divulgeable in canon 2197 (regarding crimes). In this context the word "public," even when it refers to defect of consent, must share the meaning it has when applied to impediments. It is inconceivable that the same word would be used in the same chapter in two different senses without notice. So throughout this·chapter the word "public" means demonstrable.

28 Ganter says "Since baptized non-Catholics are not bound to the ecclesiastical form, they are to renew consent by any external act that can be proved." Bernard J. Ganter. _loc. cit._ , p. 61.

29. It would seem that the term "implicitly" would have been preferable to "tacitly." This is a case where force and fear had been demonstrated as an invalidating influence at the time of the ceremony so the defect was public. It therefore had to be rectified not only externally or expressly but even publicly, that is in a demonstrable way, even if the demonstrability was only by presumption. But a tacit renewal, at least as the term is now commonly used, would not be sufficient.

30 Acatholicus cum acatholico contrahens ... potest matrimonium ob vitium consensus invalidum reconvalidare, non servata forma catholica, dummodo, metu cessante, conscius sit vitii detque novum consensum expresse, vel tacite per copulam liberam seu cum affectu coniugali, aut per cohabitationem spontaneam tempore moraliter sufficienti ad novum consensum probandum, dummodo interim altera pars consensum suum non revocaverit. _S.R.R.D._ 28, 714.

31 Matrimonium tandem gravi sub metu a Consuelo contractum nulla inde fuit ratificatione sanatum. Ad validationem enim consensus oporteret in casu ut scientiam calluerit actrix de matrimonii nullitate ex defectu consensus, matrimonialemque consensum renovaverit perdurantibus nuptiis. Porro inverisimile est canonica scientia praeditam Consuelo fuisse super impedimentis matrimonium irritantibus, eo vel magis quod sectae acatholicae erat inscripta; quae scientia ceteroquin in feminis non est praesumenda, sed e contra probanda. S.R.R.D. 18, 286.

The author, some of whose best friends are women, thoroughly regrets having to transcribe Quattrocolo's concluding anti-feminist remark and wishes to go on record as dissociating himself from such sentiments.

32 Ludovicus Bender, _op. cit._ , pp. 221, 222.

# ARTICLE EIGHT

## A NEW CONDITION LIMITING MARRIAGE

ORIGINS

Dante Alghieri, l'altissimo poeta, had a profound, perhaps even an excessive reverence for law. In the Sixth Canto of the Paradiso, he said quite clearly, though indulging perhaps in some poetic exaggeration, that he regarded Justinian's Code as divinely inspired. He wrote:

Cesar I was and am Justinian who, by will of the Primal Love which now I feel, withdrew from out the Laws excess and inefficiency.

And yet this same Dante, for all his admiration of the law, once complained to the Italian cardinals in a letter written around the year 1310, that churchmen were paying too much attention to the law, that clerics were no longer reading the Fathers of the Church but were preoccupied instead with the study of canon law.

Canon law had suddenly become immensely popular in Dante's time and much of its popularity was due to the great University of Bologna. When H. V. Morton, the distinguished travel writer, visited Bologna, he experienced a certain disappointment over the University but his disappointment prompted him to explain a fascinating piece of history. He wrote:

Remembering the antiquity of Bologna University and that it claims to have received Roman Law directly from the ancient world and to be the mother of all universities, it was disappointing to find no building as old or as beautiful as the average Oxford college. This may seem strange in a city that has preserved so many of its antiquities, but there is, of course, a reason for it and a curious one. The inquirer discovers that this venerable university, which will celebrate its nine hundredth anniversary in June, 1988, had no settled, permanent quarters until the year 1565. In order to explain this it is necessary to go back to the year one thousand, or thereabouts, when the revived study of Roman Law at Bologna seemed to many of the best brains of the time as though a long-dead lighthouse had been discovered and was once again casting its guiding beams upon dark waters. From many countries elderly and mostly wealthy men went to Bologna to study law. Some were priors and bishops, some were noblemen, some were ambitious careerists with their eyes on high offices of state, like Thomas a Beckett, who studied here in the twelfth century. Such exceptional students created an unusual organization. The students hired the professors; they laid down the rates of payment and drew up conditions which their lecturers swore to obey, creating a masterservant relationship made possible by the age and status of those who were attending the schools.

As every first year student of canon law knows, Bologna's most famous professor or lecturer was Gratian, who composed his monumental _Decretum_ somewhere around the year 1140. On the faculty at Bologna that same year was a brilliant young man from Siena by the name of Orlando Bandinelli. And these two men together, Gratian and Orlando Bandinelli, may be said to have conceived the legal institute that is the subject of this paper, namely, the conditioned marriage.

But first a word about the times. They were dramatic times. In 1146 Saint Bernard of Clairvaux preached the Second Crusade and thousands of Christians marched eastward to save the Holy Land. In 1152 Frederick Barbarossa became the King of Germany and the Holy Roman Emperor and all of Europe was divided into Guelph and Ghibelline, depending on whether one's loyalties were with pope or emperor. Gothic architecture was beginning to replace Romanesque in Northern France (the Abbey Church of St. Denis and Notre Dame of Paris were begun around that time and soon thereafter Chartres, Rheims, and Amiens), and Europe was entering its most flourishing century for the building of great churches and cathedrals - two a month for the next hundred years.

One of those wonderful churches was the cathedral at Pisa which was completed in the year 1121, and one can easily imagine Orlando Bandinelli as a teenager traveling with his family from Siena to see the Church and perhaps hoping that one day he might somehow be a part of it. But whether or not he ever cherished such youthful dreams, he did eventually, in the 1140's, become a deacon and canon at Pisa.

But first he was to go to Bologna and study under the incomparable Gratian and eventually become his colleague. And together, as one of their very minor contributions, they would develop the notion of a conditioned marriage.

It might seem strange at first that the notion had not been developed earlier, but a condition is, of course, something attached to a contract and it must be remembered that marriage was not viewed as a contract in Roman Law but as a mere fact or _de facto_ union of two people. A conditioned marriage would have made no sense in classical Roman Law. Roman Law did concern itself with contracts and did recognize that those contracts could be conditioned but it was not until the Middle Ages, when Roman Law was rediscovered, that canonists began to regard marriage as a contract capable of being conditioned.

Magister Gratianus led the way, perhaps without realizing it. But it was Magister Rolandus, as Bandinelli was called, who assured us that this was indeed the right path.

In Gratian's _Decree_ , Causes 27 through 36 constitute a kind of treatise on marriage. Cause 32 poses this interesting case:

An unmarried gentlemen, solely to avoid incontinence, married a prostitute, but besides the fact that both her father and her grandfather were opposed to the marriage on the grounds that they had promised her to another man, the prostitute also turned out to be sterile. Realizing the error of his ways and desiring children of his own, the man began to have relations with his servant girl. His wife, however, accused him of adultery and he was convicted and punished, whereupon he asked a friend of his to kidnap his wife so that he could divorce her and then marry an infidel lady on the condition that she convert to Christianity.

Gratian then indicates that he will discuss this case under eight headings or questions. He first lists the eight questions and phrases the eighth as follows:

Eighth, whether the gentleman may marry the infidel lady on condition that she convert.

After writing sixty or so pages or columns in response to the first seven questions, Gratian then comes to his response to Question 8 and he writes:

Since the man divorced his wife, it is clear that he cannot marry somebody else. The real question, therefore, is whether he might be permitted to sin by having relations with this infidel lady in the hope that he might convert her. And the answer to that question is definitely in the negative as Augustine has pointed out in his first book on adulterous spouses, c. 24, when he said, "One may not renege on a vow of continence even if an infidel party promises to become a Christian."
CHAPTER I

Not only is the man an adulterer (every man must be so classified who divorces his wife and marries another even if he does so in order to bring about a conversion), but even if he had not married the woman but had decided instead to make a vow of chastity, it still would not have been right for him to commit sin even in order to effect a conversion. Because what is licit before a vow is no longer licit after a vow: and that applies to all such vows, whether it be of perpetual virginity or of chastity during widowhood or a mutual vow of husband and wife to practice abstinence. Consequently when a man unconditionally makes a vow it can never be broken by a condition.9

Gratian's principal contribution here was to ask the right question. And since that had never been done before it must be considered a giant step. He never really answered it, though, at least not explicitly. By the time he got around to answering the question he dismissed it as a non-question since in the case given the man was already married; not only couldn't he marry someone else conditionally, he couldn't marry someone else period. Gratian did go on to discuss another hypothesis, namely the case where the man was not married but was instead bound by a vow. But there again, of course, he came up with the same answer. The hypothesis that Gratian might have discussed was the case of the man who was bound neither by prior bond nor by vow but this Gratian never did.

Orlando Bandinelli, however, picked up where Gratian left off.

Bandinelli left Bologna probably around the year 1142,10 perhaps because the master-servant relationship between student and lecturer was not altogether to his liking. It is very likely that he spent the years from 1142 to 1148, when he was called to the Curia in Rome, at Pisa where he was a canon and where he taught canon law. It would seem that it was during those years at Pisa that Orlando composed, for the benefit of his students, a commentary11 on Gratian's _Decree_ , and when Bandinelli came to Question 8 of Cause 32, he wrote:

The eighth question was whether it was licit for a man to marry an infidel woman in the hope of converting her. Master Gratian did not really respond to that question but answered another one instead. For whereas the original question was whether a Christian could marry an infidel on the promise of conversion, the answer was that this was not permitted either to the married person or to the person bound by a vow. Nevertheless, Gratian did, in his answer to question eight, attempt, at least implicitly, to respond to the original question, especially where he said "Because what is licit before a vow, etc."12

Master Roland does not appear to be making any original contribution here but perhaps that is the hallmark of the professional commentator: to be totally unobtrusive in clarifying the original. But just as Toscanini brought new meaning to Beethoven, so Bandinelli brought it to Gratian. For by turning our attention to the sentence "Because what is licit before a vow is no longer licit after a vow," a sentence that may or may not have had implications in Gratian, Master Roland did, in effect, take the position that before a man married or took a vow, _it could have been licit for him to enter a marriage conditionally_.

And so began the long history of the conditioned marriage with Gratian in Bologna and Orlando Bandinelli in Pisa.

In 1148 Orlando left Pisa for Rome. Within a couple of years he was a cardinal. In 1153 he was named papal chancellor and six years later, in 1159, he was elected pope. The papal election is a story in itself,13 a story too involved to be told here. But Cardinal Boso's hilarious, eyewitness account of the closing scene deserves repeating, if only for its comic value:

Upon Roland, then - despite his attempted flight, his excuses, refusals, and other signs of resistance - the bishop of Ostia and the bishops of Albano, Porto and Sabina, with the other cardinal priests and deacons, following the ancient ritual of the Church, placed the papal mantle, through the hands of the first of the deacons. The Lord approved their actions. But now Octavian, who had long aspired to the apostolic throne, saw that he was thus being cheated out of his hopes. Like one possessed he rushed up in a mad fury, violently tore the mantle from Alexander's neck, and attempted to make away with it in the midst of the tumult that broke out. One of the senators in attendance saw this dastardly deed: outraged, he boldly jumped in front of this madman and snatched the mantle from his hands.

Sorely disappointed, Octavian looked toward a certain chaplain of his who had come instructed and prepared for just such an occasion. Crying out frantically he signalled to the chaplain to hand him quickly another mantle which he had brought with him. He handed it to him at once and Octavian took off his cap, bent his head, and with the help of this chaplain and another cleric of his - for shame! he impudently put the mantle on himself, since at that moment not one of the cardinals was at hand. But divine justice intervened to the great merriment of all who witnessed the scene: he got it on backwards! When he frantically tried to remedy this ridiculous situation, he couldn't find the hood of the mantle; almost beside himself with frustration, he pulled the lower fringes up to his shoulder as well as he could. It was evident from this that, just as his mind was distorted and his intention perverse, so his mantle was put on upside down and backwards as proof of his damnation.14

But comic as it may seem to us today, it was for Orlando Bandinelli who, as pope, took the name Alexander III, the beginning of an arduous papacy. For eighteen years Alexander III had to cope with an antipope and for many of those years Alexander was banned from Rome. But he was a patient man and tenacious and overall his papacy was a successful one. Philip Hughes called him "one of the six or seven greatest popes of all,"15 and canonists can be proud indeed of this first canon lawyer to occupy the chair of Saint Peter.

PRESENT JURISPRUDENCE

Since the days of Alexander III the notion of a conditioned marriage has become more and more sophisticated, to the point where some people would consider our present jurisprudence regarding it excessively and dangerously liberal. Among modern rotal auditors there are still many areas of disagreement but if one were to adopt in every case the more liberal point of view, the following five propositions could all be applied in judging whether or not a condition had been placed.

1 - A Condition May Be Placed Implicitly

This proposition is not without its opponents, but it is today generally accepted.

The Code of Canon Law is silent on the matter. It does not say whether a condition must be placed explicitly or whether an implicit condition suffices. But a decision given on August 2, 1918, just a few months after the Code went into effect, is significant and deserves mention. It concerns a marriage that took place in 1908. The woman asserted that she entered the marriage on the condition that the man had never previously lived with a woman for any extended period of time. After the marriage she discovered that in fact he had done just that. She left him and sued for annulment. The case originated in Versailles and received several negative decisions, but the woman was persistent and finally prevailed upon the pope to appoint a special commission of Cardinals to review the case. Pope Benedict XV appointed a rather formidable quintet, Cardinals DeLai, Pompii, Gasparri, Giustini, and Lega, to study the case. In the course of their decision, they said,

A condition properly so called occurs when a party, by an explicit act of the will, ties his consent into the existence of some quality in such a way that if the quality is lacking, then the consent subordinate to the quality is also lacking.16

The cardinals, therefore, seemed to require that a condition be placed by an explicit act of the will.

That was in 1918. As late as 1946 this position still enjoyed some support. Canestri, in a decision of that year, said,

Consent contrary to the opinion of some, cannot be conditioned implicitly, because a condition must be placed by a positive and therefore an explicit act.17

More and more, however, opinion went against Canestri. There was increasing realization that a positive act, though it should be express, could nevertheless be expressed implicitly.18 In an opinion of November 4, 1957, Monsignor Bejan tried to bridge the gap by noting that when a condition is made only implicitly "it is obvious that it will be very difficult to prove that the act of the will was a positive one, which is why so many decisions seemed to require that it be explicit."19 But that same year, 1957, Sabattani rejected outright the requirement that a condition be placed explicitly and he quoted Dino Staffa's famous monograph in support of his position.20

2 - It Is Not Required that the Person Placing a Condition Do So because Of Some Doubt nor Is Doubt Required in Order to Prove a Condition

Ordinarily, perhaps, it would not occur to a person to place a condition unless there were some suspicion about an important quality being missing. One would not usually say, for example, "I marry you only on the condition you are heterosexual," unless there was some doubt about the person's heterosexuality.

But such is not always the case. In the aforementioned case from Versailles, as a matter of fact, the woman apparently never doubted that the man she married had had a past lover (her very best girl friend had been matchmaker), but it was simply a matter of great importance to her that she be the first true love of her husband. Or if there was some possible initial unsureness on her part, it is clear from the decision of the commission that, after being reassured on several occasions by the man that he had never in his life had a mistress, the woman, by the time of the marriage, was absolutely certain that this was a man who met her qualifications. The commission, nevertheless, decided that the woman had truly placed a condition and they declared the marriage to be null.21 The commission, in other words, did not require a doubt, at least at the time of the marriage.

Despite the prestige of the commission, however, a doubt continued to be regarded as a virtual necessity for proving a condition and came to have the same relationship to a condition as aversion does to force and fear.

In a 1929 decision, for example, Manucci said that "according to the consistent teaching of the Rota a condition is not easily admitted unless there was some doubt or anxiety or hesitancy on the part of the one placing the condition."22 And in 1940 Wynen said that "the placing of a condition is nothing more than the surfacing of a doubt about something and the person who is not motivated by that kind of doubt is not considered to have placed a condition."23

But there was always the Versailles case, and in deference to the wisdom of it there have also been many rotal decisions which returned to and endorsed the Versailles principle, namely that a doubt is not always required either to precipitate or later to prove a conditioned marriage. Sabattani, for example, distinguished between initial and final doubt and conceded that perhaps the first was required but certainly not the second, that is to say, a person certainly would not have to be in a state of doubt right at the time of marriage. And he also offered it as his opinion that "sometimes the placing of a condition is both psychologically and logically precipitated [not by any actual doubt but] by a kind of obsessive preoccupation with excluding some quality harmful to marriage."24 And Felici, in a 1956 decision, went even further and simply denied that any doubt at all was required. He said that "Even though a condition most often arises from a doubt, still a doubt is not so necessary that without it a condition is inconceivable because sometimes a person can be moved to place a condition by certain objective conditions."25 In the case before Felici the allegation was that the Catholic woman had married on the condition that the Calvinist man convert to Catholicism. Prior to the marriage the man promised her that he would become a Catholic and she never doubted it, but Felici judged that even without the doubt the woman was such a good Catholic and having a Catholic husband was so important to her that, all things considered, the condition was proved.

The following year, in another rotal decision, Pinna suggested that even in such a case as Felici's there was a kind of "general doubt,"26 but that seems to reduce the whole question to the level of semantics where something is called a doubt even when it isn't a doubt. This is not a conciliation of the dispute but a denial that there are, in any real sense, two sides to the question. But, Pinna notwithstanding, the truth of the matter is that there is a well-founded opinion which holds that a doubt is not always required in order to prove a condition.

3 - A Person May Place a Condition without Realizing that It Results in the Nullity of the Marriage

Rotal unanimity is also lacking in respect to this proposition. Over the years there have been some rotal auditors who regarded knowledge of the nullifying effect of a condition necessary to prove invalidity and other rotal auditors who did not consider that knowledge necessary.

Cardinal Heard was one of those who regarded it as necessary. In a 1951 decision he wrote:

When a person places a condition he ought to intend by a positive act of the will that his consent be invalid if the condition is not verified. He ought, therefore, to be aware of the possible nullity of the consent he is giving, and if he in no way foresees the nullity of the marriage then he is not contracting conditionally.27

Monsignor Pinto, however, would not agree. His decision of June 26, 1971, places him squarely in the opposite camp, and he cites the following decisions in support of his position: Grazioli's 1944 decision, _S.R.R.D._ 36, 384; Mattioli's 1950 decision, _S.R.R.D._ 42, 151-152; and two decisions by Felici, _S.R.R.D._ 43, 570 and _S.R.R.D._ 48, 62. Pinto's own words are as follows:

Jurisprudence, even rotal jurisprudence, has sometimes held that a true condition can only be placed by a person who is aware of its invalidating effect. But this is not true. People are generally unaware of such legalities and in no way realize that entering marriage conditionally results in invalidity. All they know is that on occasion a particular circumstance is so important to them that they rate it higher than marriage itself and that, if they can't have the circumstance or quality, they don't want the marriage either. Now everybody agrees that that sort of mentality or intention conditions marital consent. And consequently rotal jurisprudence, especially as it has evolved in recent years, holds that a true condition can coexist with ignorance of its invalidating effect as long as it is clear that the person would not have consented to marry unless the quality had been present.28

So once again there is disagreement. But also once again, strong rotal support for the more liberal opinion.

4 - The Value System, both of Society and of the Individual, Is Regarded as Highly Significant in Determining the Presence of a Condition

The rule of thumb here, as stated by Heard, is that a marriage should be presumed to have been entered unconditionally whenever the circumstance in question is

of minor import or only accidentally touches marital life whereas whenever, at least in the estimation of the contractant, the matter is of great import and enters into the substance of the future life of the couple, then it is more easily concluded that the marriage was entered conditionally.29

Heard's phrase, "at least in the estimation of the contractant," suggests that, in judging the importance of a circumstance, the first norm to look to would be the estimate of society in general, whether the circumstance was considered important in the milieu or culture in which the marriage took place; and, second, one would consider whether the contractant's own personal estimate was in accord with the viewpoint of society in general or whether the contractant, for whatever reason, had a kind of special or peculiar point of view of his own which was not entirely in agreement with society's.

Sabattani, in a decision of 1956 and again in a 1957 decision, called these two norms the objective criterion and the subjective criterion.30 Interestingly, in the 1957 decision, he gave two examples of circumstances that would be considered of great import according to the objective criterion: freedom from venereal disease on the part of the man and the state of virginity on the part of the woman. Now there is no question but that virginity, though it was not the issue in the case before Sabattani, was objectively of immense importance in the place and time of that particular marriage, namely, in Sicily in 1932,31 and perhaps virginity was of great importance objectively in Italy in 1957 when Sabattani gave the decision, but probably few people would regard it as objectively important in America at the present time.32

This is what makes it an interesting example. Because it highlights the need, if these criteria are to be meaningful, to take into consideration the currently prevalent mores of the society in which the marriage took place, the value system of the community in whose midst the couple married. It is understandable, in other words, that virginity could have been the subject of a condition at other times, in other places. It is not likely that it would be for this time and place. For our young people, other qualities and circumstances have, perhaps rightfully, taken on increasing importance. So our objective and subjective criteria, our "estimative criterion," as Monsignor Fiore called it,33 must be adjusted to fit our culture. But more of that later.

5 - In a Future Contingent Condition, It Suffices if the Circumstance Will Occur Moderately Soon and if It is Moderately Specific

Since a future, honest condition suspends the validity of marriage until the circumstance is verified,34 it would be absurd if the circumstance amounted to a lifelong project or if it were something that would not be fulfilled for many, many years. On this subject, Monsignor Jullien, in a 1939 decision, observed

A condition, once placed and not revoked, if it is a future, honest condition, suspends the validity of marriage. The reason obviously, is that an honest, possible condition about some uncertain event which will be fulfilled at some future time, as, for example, "I marry you providing the case pending in court is granted in my favor," or "I marry you if you live in a certain town," suspends the consent and consequently the contract. For the consent and contract are subordinated to the condition until such time as the condition is either realized or unrealized.... Nevertheless, a person cannot impose as a suspensive condition an obligation of doing or omitting something perpetually, that is to say, over the entire course of the marriage, as, for example, the obligation of living in a particular place or of never gambling and that sort of thing. It is perfectly clear that a condition of that sort would always go unrealized and if consent were subordinated to it, it would always remain suspended and the marriage would never come into existence.35

On the other hand, the circumstance need not be something that immediately follows the marriage and therefore suspends the marriage only for a matter of hours or days or even months. In a 1956 decision, Mattioli offered as an example of a future condition: "I marry you if you obtain your doctoral degree within a year."36 The Rota, it is clear, does not require that the circumstance follow the marriage practically instantaneously.

Considerable leeway, therefore, is permitted. The circumstance ought not to be so far in the offing as to be meaningless but on the other hand it need not be so proximate to the marriage as to eliminate, for all practical purposes, most contingencies that might be of concern to a person entering marriage.

The circumstance, in other words, ought to occur moderately soon. It also ought to be moderately specific. In order to clarify what degree of specificity might be regarded as reasonable, perhaps an example might help. Let us suppose that Paul Buyer wishes to purchase a used automobile from Peter Seller. Paul is concerned about fuel consumption. Peter assures him that he will get twenty miles to the gallon, and Paul buys the car on the condition that he does indeed obtain that kind of mileage. Such a condition is obviously highly specific. At the other end of the spectrum is a condition so vague and general that it could in no way be verified. Paul, for example, wishes to purchase the car and to pay his money but he wants a money-back guarantee "if he is not entirely satisfied." Clearly such a condition, "if he is not entirely satisfied," is far too nebulous to have any real meaning. Perhaps somewhere in between these two extremes is the following condition: "I am buying this car providing it runs well." This condition would fall somewhere in between the other two because, although it is not highly specific, there are certain basic, objective, minimal criteria generally recognized as required in order for a car to be considered to perform well. If, for example, the car starts only half the time and if the brakes don't hold going down hill and if the car breaks down frequently at speeds over 25 miles per hour, then most people would agree that that car does not run well. Such a condition, therefore, though not highly specific, has a degree of specificity that is susceptible to measurement and to verification, and it could therefore be validly attached to a contract.

This should be clear from the definition of a condition, namely, "a circumstance attached to a legitimate act which suspends the validity of that act until some future, uncertain time."37 A condition, in other words, is basically a circumstance and "circumstance" is not some magic word. A circumstance is a circumstance. It is a fact or an event, a "certain something," as Mattioli called it.38 Perhaps it consists of a single element, as in the example of purchasing a car providing it gets twenty miles per gallon of gas, or perhaps it consists of a number of elements, as in the example of buying the car on the condition that it runs well. In this case we might speak of a "set of circumstances," but in any case the circumstance must have a certain unity to it so that it is reducible to an event or fact on which the validity of some act can depend.

A NEW APPLICATION

When all of these observations are taken together and when one realizes that a person may make a condition implicitly, that he can be motivated to do so not by any specific doubt but simply by objective circumstances, that he need not realize that by doing so he is vitiating or suspending the marriage, that his own value system and that of his peers is extremely important in precipitating the placing of the condition, and that the condition itself need only be something moderately specific to occur within a few years time, when all of this is realized, it cannot but occur to us that there must be a fair number of conditioned marriages in our time that are going undetected. It is not all that difficult to attach a condition to marriage. It is only required that, in entering marriage, a person consider some circumstance so much more important than marriage itself that he does not really want the marriage if that circumstance isn't present. As Mattioli said, in the same decision of 1956 just quoted,

Most people entering marriage conditionally are not thinking about entering an invalid marriage but only about entering a happy marriage or at least an agreeable one, because they are convinced, rightly or wrongly, that they cannot find peace in their marriage if that "something" is lacking.39

This is a very sympathetic jurisprudence, very elastic, very responsive to the human condition, a jurisprudence that avoids quite well the general criticism of law by Governor Willie Stark when he said:

I can see what the law is like. It's like a single-bed blanket on a double bed and three folks in the bed and a cold night. There ain't ever enough blanket to cover the case, no matter how much pulling and hauling, and somebody is always going to nigh catch pneumonia. Hell, the law is like the pants you bought last year for a growing boy, but it is always this year and the seams are popped and the shankbones to the breeze. The law is always too short and too tight for growing humankind.40

But the question is, what does this "growing humankind" look like today? What are the attitudes of young people today about marriage? What are their intentions when they marry? How does this jurisprudence apply to them? Are some of them, perhaps a substantial number of them, entering trial marriages? Do many of them regard a "certain something" as more important than marriage itself?

A recent survey gives us some answers to those questions. This was a survey of 883 engaged people from around the country who were planning to marry in the Catholic Church. The questionnaire to which they responded appears as an appendix to this article and the responses provide information regarding three general categories: the _attitudes_ of American people in the mid 1970's regarding marriage, the _value system_ of these people, and their actual _intentions_ in entering marriage.41

As regards ATTITUDES, the responses to two particular questions were especially significant. 22.3% of the respondents said that in their opinion marrying until death do them part meant that they were husband and wife until their love died. This would seem to be an outright denial of the indissolubility of marriage and, as one might therefore expect, Catholics tended to be slightly slower than non-Catholics to make this statement. In this survey, approximately eight out of every ten people who responded were Catholic but in response to this particular question, for every ten people who agreed that the marriage ended when the love ended, only about seven were Catholic. So the Catholic indissolubility tradition was certainly of some influence here.

The other attitudinal question of import concerned the meaning of marrying "for better or for worse." 20.5% of the respondents said that it meant remaining together as long as their spouses contributed to their fulfillment; and here religion was no factor: Catholics were neither more nor less ready than others to endorse that proposition.

Assuming that these responses are representative of the larger picture, what should one conclude from these attitudinal responses? At least this much: that about one-fifth of the people marrying in the Catholic Church this year adhere to these rather unorthodox views regarding marriage. The other side of the coin, of course, is that fourfifths of those getting married possess views on marriage which would be quite acceptable to our hierarchy. And this may be consoling to some. But 20% hardly constitutes a fringe phenomenon and most older Catholics would probably find this frightening.

As regards the VALUES of engaged people, the respondents were offered ten qualities associated with marriage and were asked to number them one through ten in order of importance. When the points for each quality were totaled, the quality with the smallest number of points was considered the overall most important quality and the one with the largest number of points the overall least important quality. The results were as follows:

1 - Helping and loving your spouse -- 2143

2 - Being helped and loved by spouse -- 3486

3 - Growing friendship with spouse -- 3707

4 - Reflecting Christ's love -- 4754

5 - Children -- 5230

6 -. Being married -- 5275

7- Personal happiness -- 5426

8 - Sex -- 5547

9 - Security -- 5710

10 - Sacrifice -- 5873

Generally this would seem to be an admirable hierarchy of values. The top values are quite personalist, and Reflecting Christ's Love is held in surprisingly high regard. The cynic might suggest that Sex is way down in eighth place because it is so readily available outside of marriage that its importance inside marriage is much reduced these days. And perhaps the ideal order would list Being Helped and Loved by Spouse as somewhat lower and Sacrifice somewhat higher. But in general the assigned order would be quite acceptable to most Christians today.

The survey, finally, reveals something about the INTENTIONS of people marrying today. One percent of the respondents said that, if the values most important to them were not realized after a year or two, they anticipated, not that they would try harder or make the best of it but that they would separate; and 13.7% of the respondents expected to do the same if their most important values were not realized after five years.42

Now it is one thing to hold the personalist values in esteem and quite another thing to esteem them so highly that if unrealized in sufficient degree after a period of time the marriage is simply terminated. This latter approach is not really marrying for better or for worse in the traditional sense of that term. It involves a certain hedging of one's bet. It takes much of the risk out of the commitment.

And Shakespeare, for one, would surely be disappointed. Or so I would gather from _The Merchant of Venice_ where the hand of fair Portia is won by Bassanio, the man who is most ready to risk everything. Portia, if you remember, had three suitors but the one who would be worthy of her and to whom she would pledge herself in marriage would have to pass an ingenious test. Each suitor was faced with three small caskets or chests, one of gold, one of silver, and one of dull lead. On the gold chest was inscribed, "Who chooseth me shall gain what many men desire;" the Prince of Morocco chose that one because he felt Portia was so desirable. On the silver casket were the words, "Who chooseth me shall get as much as he deserves;" the Prince of Arragon chose that one because he felt he had merited Portia. And the chest made of dull lead had on it an inscription that said, "Who chooseth me must give and hazard all he hath." Which is the one Bassanio chose; and by that choice he won the hand of Portia.

What Shakespeare is saying, of course, is that the most important thing in entering marriage is a spirit of abandonment, a willingness to give and hazard all. But this is hardly the spirit of those people who expect to get out if the values most important to them are not realized after a year or two or five.

Indeed such a mentality would constitute, in my opinion, an invalidating conditioning of marriage. It is exactly what Monsignor Pinto is talking about when he says

All these people know is that on occasion a particular circumstance is so important to them that they rate it higher than marriage itself and that, if they can't have the circumstance or quality, they don't want the marriage either. Now everybody agrees that that sort of mentality or intention conditions marital consent.43

And it is precisely the kind of case Monsignor Mattioli has in mind when he says

Most people entering marriage conditionally are not thinking about entering an invalid marriage but only about entering a happy marriage or at least an agreeable one, because they are convinced, rightly or wrongly, that they cannot find peace in their marriage if that "something" is lacking.44

This kind of mentality, furthermore, that anticipates separation after five years if one's most important values are not realized, is both specific enough and proximate enough to constitute a true condition.

As regards _specificity_ , what these people are saying is this: that the so-called personalist values, that is to say, mutual love and assistance and friendship are so much more important to them than marriage itself that if they don't have the personalist values then they don't want the marriage either. This is far different from saying something vague and general like "If I am not entirely satisfied after five years I expect I'll get out." Which would clearly be too nebulous to qualify as a circumstance on which the validity of marriage might depend. What we have here, on the other hand, is a set of tangible, measurable qualities that enjoy reasonable specificity. If, for example, the couple is fighting and quarreling and failing to communicate and being generally miserable, then it is clear that their principal values were not realized. These values, in other words, viewed as a circumstance or set of circumstances, enjoy moderate specificity.

As regards temporal _proximity_ , suffice it to say that five years is far short of forever. Jullien is certainly correct in saying that "a person cannot impose as a suspensive condition an obligation of doing or omitting something perpetually," because then the marriage could never come to be, but most young people today would consider three, four, or five years a reasonably lengthy trial period during which they could determine whether or not they mesh as a couple.

My conclusion, therefore, is that these people, who expect that they will separate after five years if their principal values are not realized, are attaching an implicit, suspensive condition to their marriage. If they actually planned or intended to divorce after five years if their values were not being met, that of course would constitute an intention against the substance of marriage, namely against the perpetuity of marriage. But even short of that, if they regard some circumstance as so much more important than marriage itself that they would consider the marriage pointless if that circumstance is not present after a trial period of reasonable length, then those people are attaching an implicit condition to the marriage. Even if they don't have any particular doubts before marriage about those values being attained. And even if they don't realize that they are entering an invalid marriage.

I would, therefore, further conclude that approximately 13.7% of marriages contracted in the Catholic Church in the United States each year are invalid on this ground alone: that they are being implicitly conditioned.45 This would amount to almost 57,000 marriages per year.46

Some people will undoubtedly disagree with these conclusions. But even among those who are in basic agreement, the conclusions will mean different things to different people.

Those who accept the present tribunal system as fundamentally sound will perhaps, as a result of this data, take a new look at the conditioned marriage as a ground on which annulments can be obtained. And within the tribunal context this would seem to have merit, first, because it obviously involves large numbers of cases and, second,because it is not a legalistic, loophole sort of ground but rather a genuine reason for the marriage failure as well as the marriage nullity; in other words, if the final separation of the parties has a direct connection to the initial commitment then we are not playing legal games by declaring the commitment faulty. In practice this should be simple enough. The court would investigate the case much as it would a case involving simulation except that it would not be necessary to prove that a party actually _intended_ anything contrary to marriage. The court would, instead, look principally to the value system of the person who allegedly conditioned the marriage. Was there a circumstance or value so immensely important to the respondent in the case that it completely prevailed over and, as it were, absorbed plain, simple marriage, a circumstance that was not only _primus inter pares_ but _primus super omnia_? Subordinately the court would also look to such circumstantial evidence as the religion of the party, family background, doubts about the potential success of the marriage, wonderment about possible invalidity, etc. And all of this information would be obtained in the usual way, by the testimony of the parties and witnesses.

People who have given up on the tribunal system, on the other hand, would probably attach an entirely different significance to the 57,000 invalid marriages per year. For them it would be one more proof that validity/invalidity is the wrong question. For one thing if we continue to emphasize validity and continue to develop and expand grounds of nullity, pretty soon no one will be sure any longer whether he or she is validly married. And for another thing, it hardly makes sense any longer to go on finding new grounds for nullity when most courts cannot possibly process the vast number of cases already being presented to them on more traditional grounds.

So the primary conclusion regarding the 57,000 invalid marriages can evoke quite different responses, depending on whether one is for or against the tribunal system. But perhaps almost everyone could agree at least on this much: that the survey bears out our most pessimistic presentiments about the state of marriage today and that what is really needed is a full-scale effort at reshaping attitudes about marriage and family life. What we need are more Bassanios. Which will probably take several generations. But perhaps it is not too late to begin.

1974

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QUESTIONNAIRE USED IN SURVEY

Would you please take ten or fifteen minutes of your time to complete this questionnaire? Please don't write down your name or show your questionnaire to anyone, even the person you intend to marry. Try to answer the questions not according to what people might expect but according to what you really believe and think. Thank you and best wishes for a lifetime of happiness in your marriage. Father Wrenn.

1 - PLEASE CHECK ONE:

__ Bride

__ Groom

__ 16-19 years old

__ 20-25

__ 26-30

__ over 30

__ Catholic

__ Protestant

__ Jewish

__ No religion

__ Other

__ Grammar school graduate

__ High School student

__ High School graduate

__ College student

__ College graduate

__ Parents married but not happily

__ Parents happily married

__ Parents divorced

__ Parents divorced and one remarried

__ Parents divorced and both remarried

II - PLEASE NUMBER IN ORDER OF IMPORTANCE IN MARRIAGE (1 through 10 - if you are unable to assign a number to each quality, try to list the two most important (1 and 2) and the two least important (9 and 10)

__ Being married

__ Children

__ Growing friendship with spouse

__ Helping and loving your spouse

__ Personal happiness

__ Reflecting Christ's love

__ Sacrifice

__ Security

__ Sex

__ Being loved and helped by spouse

III - PLEASE CHECK ONE:

If the values most important to you in marriage are not realized after a year or two what do you think you will do?

__ Separate

__ Try harder

__ Make the best of it

If they are still not realized after five years what do you think you will do?

__ Separate

__ Try harder

__ Make the best of it

IV - TRUE OR FALSE (T or F)

1 - Marrying ''for better or for worse" means

__ Persevering no matter what

__ Putting your happiness second to the happiness of your spouse

__ Giving up only when life together is hopelessly unbearable

__ Staying together for the sake of the children

__ Remaining together as long as your spouse contributes to your fulfillment

__ Giving up when life together becomes too demanding

2. Marrying "until death do is part" means

__ We are husband and wife until one of us dies

__ We are husband and wife until our love dies

__ We can never marry anyone else as long as our partner lives

__ If the marriage fails we can only remarry after a church annulment

__ If the marriage fails we can only remarry if the other party was unfaithful or drinks to excess or for some similar serious reason

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ENDNOTES

 As his non-tomb (or cenotaph) at the church of Santa Croce in Florence calls him.

 Dante Alighieri, _The Divine Comedy_ , the Carlyle-Wicksteed translation (New York: Modern Library, 1932), p. 432.

 "Iacet Gregorius tuus in telis aranearum; iacet Ambrosius in neglectis clericorum latibulis; iacet Augustinus abiectus, Dionysius, Damascenus et Beda; et nescio quod 'Speculum', Innocentium et Ostiensem declamant. Cur non? Illi Deum quaerebant, ut finem et optimum; isti census et beneficia consequuntur." _Le Opere di Dante_ , Testo critico della Societa Dantesca Italiana (Firenze, 1921), Epist. XI, 16, p. 433.

 H. V. Morton, _A Traveller in Italy_ (New York: Dodd, Mead, 1964), pp. 239-240.

 J. D. Conway, _Times of Decision_ (Notre Dame: Fides Publishers, 1962), p. 139.

 David M. Robb and J. J. Garrison, _Art in the Western World_ (New York: Harper, 1942), p. 134. According to Baedecker, the baptistry at Pisa was begun in the year 1153 and the bell tower in 1174. Seina's Cathedral was not begun until 1229.

 "Quidam vir cum non haberet uxorem, quamdam meretricem sibi coniugio copulavit, quae erat sterilis, neptis ingenui, filia originarii, quacum pater alii vellet tradere, huic avus eam copulavit, causa solius incontinentiae. Deinde hic poenitentiae ductus, ex ancilla propria filios sibi quaerere coepit. Postea de adulterio convictus, punitus quendam rogavit, ut uxorem opprimeret suam, ut sic eam dimittere posset, quo facto quandam infidelem sibi copulavit, ea tamen conditione ut ad Christianam religionem transiret." _Decretum Gratiani, emendatum et notationibus illustratum, una cum glossis_ (Augustae Taurinorum, 1588), p. 1876.

 "Octavo, si infidelem sub praemissa conditione licet alicui fidelium in coniugium ducere." Ibid. p. 1876.

9 "Cum itaque probatum fit, quod hic uxorem suam dimittere, aliam ducere non potest, quaeritur si liceat ei hac conditione peccare, ut infidelem ad fidem adducat. Quod non posse fieri Augustinus affirmat in libro primo de adulterinis coniugiis c. 24 ita dicens

"Non debet aliquis a continentiae voto recedere, etiam si infidelis Christianum se fieri polliceatur."

CAP I

"Non solum moechandum non est (quod facit non quidam, sed omnis, qui dimittit uxorem suam, et ducit alteram, etsi propterea duxerit, ut faciat Christianam) sed etiam quisquis non alligatus uxori continentiam Deo voverit, nullo modo debet ista compensatione peccare, ut ideo credit uxorem sibi esse ducendam, quia promisit. quae nuptias eius appetit, futuram se esse Christianam. Quod enim cuiquam, antequam vovisset, licebat, cum id se numquam facturum voverit, non licebit: si tamen id voverit, quod vovendum fuit, sicuti est perpetua virginitas, vel post experta connubia solutis a vinculo coniugali, vidualis castitas, seu ex consensu voventibus, et carnalia debita sibi invicem relaxantibus fidelibus, castisque coniugibus (quod alterum sine altera, vel alteram sine altero vovere fas non est) iugis continentia. Haec ergo, et si qua alia sunt, quae rectissime voventur, cum homines voverint, nulla conditione rumpenda sunt. quae sine ulla conditione voverunt." Ibid. p. 1940.

10 Marshall W. Baldwin. _Alexander III and the Twelfth Century_ (New York: Newman, 1968), p. 5. It is interesting to note that Thomas a Beckett studied at Bologna from 1143 to 1148 (see Morton, _op. cit._ , p. 241), so apparently these two men, Bandinelli and Beckett, whose later fortunes would be so entwined, did not cross paths at the University.

11 Other commentators on the _Decree_ , or decretists, as they are called, are Paucapalea, Omnibonus, and Huguccio, whose names alone should merit our admiration.

12 "Octavo quaeritur. an liceat alicui infidelem sub spe convertendi in matrimonium sibi copulare. Non hanc sed aliam magister Gratianus prosequitur quaestionem. Cum enim quaesitum fuerit, an liceat fideli accipere infidelem sub conversionis pollicitatione, ostendit hoc coniugato vel sollemni voto astricto minime competere; verumtamen, etsi lateat, quaestionis praedictae probatio praesenti continetur capitulo, praesertim ubi dicitur: 'Quod enim cuiquam antequam vovisset etc.' " _Summa Magristri Rolandi_ , edited by Freidrich Thaner (Innsbruck: Scientia Verlag Aalen, 1874 and 1962). p. 188. A valuable analysis of the contribution of Gratian and Roland and of medieval canonists in general regarding conditioned marriage is found in the famous study of Doctor Max Ritter Hussarek von Heinlein, the distinguished Austrian statesman and professor of law. See Max v. Hussarek, _Die Bedingte Eheschliessung_ , (Wien: Alfred Holder, 1892).

13 For a concise, well researched account see "The Papal Election of 1159" by Lawrence F. Barmann, in _The American Ecclesiastical Review_ , January 1963, pp. 31-43.

14 Cardinal Boso, _Vita Alexandri III_ , edited by L. Duchesne, _Liber Pontificalis II_ , (Paris: Librarie des ecoles francaises d'Athenes et de Rome, 1892), pp. 397-398.

15 Philip Hughes, _The Church in Crisis_ (Garden City, N.Y.: Hanover House, 1961). p. 201.

16 "Conditio proprie dicat tunc habetur quando pars explicito voluntatis actu suum consensum existentiae aliquis qualitatis alligavit, ita ut si qualitas deficiat, etiam consensus, qualitati subordinatus, deficere debeat." _AAS_ , 10:389. For previous decisions. see _SRRD_ 4, 235-249 and 8, 313-324. The comparable cause celebre of more recent times regarding the conditioned marriage is the decision of July 16, 1945, _videntibus omnibus_ , _SRRD_ 37, 462-471.

17 "... neque admitti potest cum aliquibus auctoribus consensus implicite conditionatus, nam appositio conditionis est semper actus positivus, ideoque explicitus." _SRRD_ 38. 310.

18 Dino Staffa took this position in his 1949 article, "De Actu Positivo Voluntatis Quo Bonum Essentiale Matrimonii Excluditur" in _Monitor Ecclesiasticus_ , 1949, I. p. 166. And Cappello had come to that position in his 1939 (4th) edition of _De Matrimonio_ , n. 598, 2. Compare with 1933 (3rd) edition.

19 "... in his duobus casibus vero nemo non videt quam difficile sit ilium positivum actum, voluntatis probare, adeo ut non paucae sententiae explicitum actum exigere videantur.'' _SRRD_ 49, 694.

20 "Notat merito Staffa D. (De conditione contra matr. subst., Romae, 1955 et II, p. 17, nota 22): 'Actus positivus potest esse explicitus vel implicitus' et (nota 27) 'expressus et implicitus non sunt opposita inter se.' " _SRRD_ 49, 421.

21 _AAS_ , 10: 388 and 390.

22 "Iuxta enim principium a Rota pluris firmatum, non facile admittitur conditio, nisi constet de quodam dubio vel anxietate aut titubantia eam ponentis" _SRRD_ 21, 136.

23 "Appositio conditionis est manifestatio dubii circa veritatem rei, et qui tali dubio non tormentatur, nequit putari apposuisse conditionem ipsi consensui." _SRRD_ 32, 228. See also Wynen's decision of February 16, 1946, especially the sentence that reads "Iamvero quo non dubitat" etc. _SRRD_ 38, 125.

24 "Reapse putamus quandoque appositionem conditionis psychologice et logice quoque iustificari ab aliqua veluti obsessione de quodam reformidato malo, vitae coniugali apprime adverso." _SRRD_ 49, 422. See also _SRRD_ 48, 61.

25 "Licet conditio saepe saepius ex dubio oriatur, non ita est dubium necessarium, ut sine eo conditio concipi nequeat, cum ex circumstantiis quibusdam obiectivis quis ad apponendam conditionem impelli possit." _SRRD_ 48, 756.

26 _SRRD_ 49, 583.

27 "Proprium est apponentis conditionem matrimonio quod velit, positivo voluntatis actu, deficiente circumstantia per conditionem adiecta, consensum non valere. Necessario ergo prae oculis habere debet possibilem nullitatem consensus, quem praestitit, et qui nullo modo nullitatem prospicit, sub conditione non contraxit." _SRRD_ 43, 707.

28 "Aliquando jurisprudentia, etiam N.S.T., tenuit veram conditionem tantummodo apponi posse ab illo qui eius effectum dirimentem noverat. Quod quidem nequit admitti. Plerumque fideles, juris ignari, minime sciunt se matrimonium sub conditione cum effectu dirimente contrahere valere. Tantummodo sciunt se aliquando circumstantiam quamdam tanti facere ut matrimonio anteponant et, nisi ipsa existat, nuptias nolunt. Tunc matrimonialem consensum conditionatum esse nemo negabit. Ideo jurisprudentia N.S.T. praesertim recens, tenet veram conditionem cum ignorantia ipsius effectus dirimentis exstare posse, dummodo constet, illa deficiente, consensum matrimonialem haud fuisse datum." _Ephemerides Iuris Canonici_ XXVIII, pp. 328-329.

29 "[Matrimonium esse validum] praesumendum est ubi agitur de re minoris momenti vel quae accidentaliter tantum vitam coniugalem afficit. E. contra si agitur de re quae saltem in aestimatione contrahentis magni momenti est et substantiam vitae futurae coniugum ingreditur, facilius admittendum est conditionem ipsi consensui in matrimonio praestando appositam fuisse." _SRRD_ 40, 304.

30 _SRRD_ 49, 421 and 50, 73.

31 _SRRD_ 38, 308.

32 Both the Kinsey survey and the Playboy survey of 1973 report that about half the women who married before the age of 25 had had premarital sex. See _Playboy_ , October, 1973, p. 85.

33 In a decision of November 30, 1968, reported in _Ephemerides Iuris Canonici_ , XXVI, 1-2. p. 201.

34 Canon 1092, 3°. For a discussion of this type of condition see Bartholomew Timlin, _Conditional Matrimonial Consent_ (Washington, D.C.: The Catholic University of America, 1934). pp. 161-182.

35 "Conditio semel apposita et non revocata, si de futuro licita, valorem matrimonii suspendit. Ratio manifesta est, quia conditio honesta et possibilis de eventu futuro et incerto, qui momento absolvetur (puta, si sententia iudicis erit mihi favorabilis; si talem civitatem assumeris, etc.) suspendit consensum et consequenter contractum. Uterque enim subordinati manent conditioni, usque dum haec adimpleatur aut deficiat ... Iamvero per conditionem de futuro licitam, qua quidem pendente suspenditur matrimonium, imponi nequit obligatio aliquid faciendi aut ommitendi perpetuo, seu ad totam patet, eiusmodi conditio semper deficere potest, et si consensus alligaretur, semper et ipse remaneret in suspenso nec unquam matrimonium existeret." _SRRD_ 31, 416-417.

36 _SRRD_ 48, 742.

37 "... circumstantia actui legitimo adiecta, quae illius valorem in tempus futurum et incertum suspendit," Wernz-Vidal, _Ius Matrimoniale_ (3rd ed., Rome:Gregorian University, 1946). p. 644.

38 "... certum 'quid' ", _SRRD_ 48, 742

39 "[Illi] condicione se communicando, non ob oculus habuerent celebrare matrimonium nullum, sed celebrare matrimonium iucundum seu conveniens: rati, nempe, merito vel immerito, se non posse bono pacis frui, si in matrimonio illud 'quid' absit." _SRRD_ 48, 742-743.

40 Robert Penn Warren, _All The Kings Men_ , (New York: Time Inc., 1963), p. 188. Originally published in 1946 by Harcourt, Brace and World Inc.

41 The survey was conducted in the winter of 1973-1974. I am indebted and grateful to all those people who took the time to respond: to the Ordinaries and other officials of the Archdioceses of Cincinnati, Hartford, Portland in Oregon, San Antonio and San Francisco, who cooperated in conducting the survey in their own locales, to the Canon Law Society of America which, in the interest of promoting awareness of marital attitudes, agreed to absorb the printing and mailing costs, and especially to the Supreme Council of the Knights of Columbus, in particular Mr. Lee A. Mailloux, Director of Systems for the Knights, who personally directed the data processing.

A general profile of the 883 respondents reveals no really unusual features. Slightly more grooms (52.5%) than brides (47.5%) responded. 26% of the respondents were teenagers. 84% of the people who responded were Catholic (in the five dioceses where the survey was conducted, 83% of the people marrying in the Catholic Church in 1972 were Catholic). 45.1% of the respondents were either college students or college graduates. And the parents of 10.9% of the respondents were divorced.

42 Within this 13.7%. the ratio of Catholics was disproportionately low and the ratio of people whose parents were divorced was disproportionately high. More specifically, 84% of the respondents to the survey were Catholic but only 78.4% of those who responded that they would separate after five years were Catholic. And 10.9% of the general respondents had parents who were divorced whereas 14.8% of the group who said they would separate were of divorced parents.

This was even more true of the 1% who said they would separate after only a year or two.

43 See note 28.

44 See note 39.

45 This, of course, assumes no overlapping, i.e., cases where both the bride and the groom of the same marriage entered a conditioned marriage.

46 The Kenedy Directory lists 415,487 marriages for 1972.

# ARTICLE NINE

## WHAT IS AN ANNULMENT?

An annulment is a declaration by a church tribunal system that a marriage was not canonically valid. Perhaps the first thing to be noted about this definition is not so much what it says as what it does not say. It does not, for example, say that an annulment indicates that a relationship, even a loving relationship, never existed between the parties. More importantly, it does not even say that a marriage never existed between the parties, but only that that marriage was not a canonically valid one (in church law, a marriage which is de facto invalid but which was entered with at least one party being in good faith, is known as a "putative" marriage - see can. 1061.3). And finally an annulment does not say that children born of an invalid marriage are illegitimate; the law of the Church (can. 1137) states clearly and unequivocally that all children are to be considered legitimate who are born of either a valid or a putative marriage.

**Reasons for Invalidity:** A marriage may be invalid according to the Church for one of two reasons: because of a law, or because of a consent that was in some way defective. There are two kinds of laws that render a marriage invalid; the first is called a disqualifying law; the second an invalidating law. The first renders a person ineligible; the second renders the act invalid. A disqualifying law is commonly known, in the field of marriage law, as an "impediment;" and the Church recognizes twelve impediments to marriage; that is, twelve situations in which a person, even though naturally capable of marriage, is nevertheless considered disqualified or is rendered ineligible for marriage by Church law. First cousins, for example, are regarded as ineligible for marriage to each other, and if they marry without a dispensation, their marriage is regarded as "invalid." Similarly, a priest or a person who has taken a public perpetual vow of chastity is considered ineligible for marriage by Church law. The twelve impediments (cans. 1083-1094) are nonage, prior bond, disparity of worship, Holy Order, vow, abduction, coniugicide (murder of a spouse), consanguinity, affinity, public propriety, adoption, and impotence. This last, it should be noted, is not an impediment in the strict sense since a truly impotent person (unlike, for example, the first cousins or the priest) lacks a natural capacity for marriage and is not simply rendered ineligible for marriage by a law. Nevertheless, impotence has for centuries been listed as an impediment in Church law and continues to be in the 1983 Code of Canon Law.

The other kind of law that can render a marriage invalid is called an invalidating law. Unlike the disqualifying law, which directly affects the person, an invalidating law directly affects the act and renders that act invalid. A few examples: canon 1108 says that for a Catholic to marry validly, the marriage must be before a priest or deacon; if, therefore, a Catholic marries "outside the Church," that is, without the presence of a priest or deacon and without dispensation having been granted, the marriage is invalid. The same canon requires the presence of two witnesses; if therefore a couple exchanged marital consent before a priest alone, with no one else present, or with only one other person present, the marriage would be invalid. Again, that same canon requires that a Catholic marry not just before any priest or deacon but before one who is legitimately empowered to officiate at the wedding. Should the cleric not be so empowered, the marriage would be regarded as invalid.All of these requirements, incidentally, are called the "form" of marriage. Other examples of invalidating laws are canon 1105 (which lists certain requirements when a marriage is entered into by proxy), canon 1116 (which lists requirements for a valid marriage in extraordinary circumstances such as danger of death) and canon 1156 (which lists the special requirements for the convalidation of a marriage).

Besides these two types of laws, disqualifying and invalidating, the other major factor that can render a marriage invalid is a defective consent. It is axiomatic that "consent makes marriage" so when the consent is substantially defective on the part of one or both spouses, the marriage is invalid. Over the centuries canon law has identified several factors that can result in a defective mental consent. The first is a genuine incapacity either for consent itself (as when a mental disorder has deprived a person either of the basic ability to think rationally or at least of the ability to grasp and appreciate what marriage fundamentally entails) or for the "object" of consent. The object of consent is the thing a person consents to; in this case marriage, or more specifically the essential obligations of marriage. If therefore a person is, for some psychological reason, incapable of fulfilling the essential obligations of marriage, then in canon law, that person is considered to enter marriage with defective consent, because one cannot truly consent to do something which he or she is incapable of doing. If, for example, a marriage breaks down because a homosexual partner finds it impossible to function in a heterosexual relationship, then such a marriage could be declared invalid on the ground that the homosexual suffered from a defect of consent insofar as he or she was incapable of fulfilling the essential obligations of that marriage.

Besides these incapacities either for consent itself or for the object of consent, there are several other consensual defects recognized in law.·These are, for example, ignorance about the basic nature of marriage, or about the identity of one's spouse, error caused by fraud regarding some important quality of one's spouse, and error concerning the unity, indissolubility or sacramental dignity of matrimony. There is also simulation, that is the intention to enter either a trial marriage or an open marriage or a childless marriage, or perhaps no marriage at all, as might happen, for example, when the parties go through a marriage ceremony as a mere business arrangement or solely for the purpose of obtaining a citizenship desired by one of the parties. Still another consensual defect that invalidates marriage is the entering into marriage conditionally, that is to say, only if something else, like coming into an inheritance, happens. And a final defect of consent is that caused by entering into a marriage due to force or grave fear. All of these consensual defects are discussed in canons 1095 through 1103 of the Code of Canon Law.

**Procedures:** Depending on the nature of the invalidity, the Catholic Church uses three different procedures for investigating and declaring invalidity: administrative, informal, and formal.

An administrative procedure is used for a marriage involving a Catholic when the marriage ceremony was "outside the Church;" that is before someone other than a priest or deacon and without the Church's having dispensed from that requirement. A Catholic, for example, having no interest in being married in the Church, marries instead before a justice of the peace. This is commonly called a "lack of form" marriage. A ceremony of this kind is considered to be so obviously invalid that it may be declared so without a judicial process but by a simple administrative procedure.

As regards all other marriages, however, the question of their possible invalidity must be investigated by a judicial process, either informal or formal. An informal process, also called a documentary process, may be used in only two situations: 1) when, from a document which is subject to no contradiction or exception, there is certain proof of the existence either of a diriment (invalidating) impediment (one of the twelve mentioned above) or of a defect of legitimate form (as, for example, when the marriage is performed only before the priest and without the two required witnesses), provided it is clear with equal certitude that a dispensation was not granted; and 2) when there is certain proof that, in a proxy marriage, the proxy or procurator was never duly appointed by the spouse to serve as a proxy (can. 1686).

Besides these few types of cases, which can be handled by either an administrative or an informal procedure, all other marriage cases are conducted by an ordinary formal procedure. A formal procedure involves extensive testimony from both the petitioner and the respondent, at least where the respondent wishes to participate, as well as from witnesses, and often psychiatric experts as well. A Defender of the Bond, whose duty it is to call to the attention of the court everything that can reasonably be adduced in favor of the validity of the marriage, must also be appointed in every formal trial. And no declaration of invalidity is definitive until a second concordant decision has been given by an appellate court.

Each year United States tribunals give about 36,000 decisions in cases heard in formal trial, about 2,000 decisions following the informal judicial procedure, and about 26,000 administrative decrees of nullity for marriages that were null because of lack of form.

**Popular Misconceptions:** Cardinal Gasparri (d. 1934), who was probably the most influential canonist of this century, once suggested that the term "null" (on which the term "annulment" is obviously based) be applied only to marriages that are invalid by reason of lack of form. All other marriages that are not valid would be called "invalid" rather than "null" Regrettably, however, this distinction has not been maintained. Had it been, the difference between a declaration of nullity (or annulment) and a declaration of invalidity would be clear, and in general there would be far less confusion regarding this entire matter. When, for example, people hear that a twenty-year marriage of two Catholics, which had taken place in the Catholic Church, is now being declared "null", they imagine that the Church is now saying that that marriage never existed and that the children born of the marriage are therefore illegitimate; which is not at all the case.

Many people seem to be under the impression that when two non-Catholics marry before a rabbi, pastor, minister, or even before a civil magistrate, somehow the Catholic Church does not recognize that marriage as valid. This is false. The Catholic position is that, while a Catholic must marry before an authorized Catholic priest or deacon, all others (except the Orthodox who have a similar regulation) may validly marry before any official recognized by civil law.

1995

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# ARTICLE TEN

## WHEN IS AN INVALID MARRIAGE NULL?

The following half dozen paragraphs are a kind of preface to the article itself. They contain a preliminary and brief explanation of the difference between the terms "invalid" and "null." First of all it must be conceded that, _in common parlance_ , even among canon lawyers, indeed even in the Code of Canon Law itself, the two terms have long been used interchangeably. At the same time, however, it is important to note that at least as far back as the great Cardinal Gasparri, surely the most influential canonist of the twentieth century, it has been generally understood by the authors that, _strictly and properly speaking_ , the two terms are not synonymous, and that, properly speaking, we should not be calling invalid marriages "null."

The difference between an invalid marriage and a null marriage lies in this: that in an _invalid_ marriage there is a reciprocal, external act of a man and a woman which is, per se, a manifestation of matrimonial consent, whereas in a _null_ marriage that act is missing. In a null marriage, there may be some act. There may even be a reciprocal, external act between a man and a woman, but not one that is, per se, a manifestation of matrimonial consent, that is, one which the ordinary bystander would conclude was a marriage.

Perhaps an example would help. One day in 1865 the forty year old Angelo Bordoni was sitting on a wall near the parish church in a small town in Italy. He was employed in the selling and delivery of oil but was known by all the townsfolk as the town jester. He was chatting this day with a certain Livia who told him that he could never get a woman to marry him because he smelled of oil. As Angelo and Livia were debating this issue, the beautiful twenty year old Anna Campitelli happened to walk by, whereupon Livia said to Angelo, "Well, let's see who's right. There's Anna. See if she'll marry you." Angelo accepted the challenge, begged Anna, in his usual humorous way, to marry him and to accompany him, then and there, to the rectory. Anna, caught up in the spirit of fun, agreed. So Angelo and Anna went to the rectory, caught the pastor and two other people off guard, and quickly recited the marriage formula, all the time laughing and joking. The pastor regarded the whole thing as a mockery and as ludicrous and refused to regard it as a marriage or to enter it into the marriage register. The form of marriage, of course, had been observed; it was not until more than forty years later that the Church, in the decree _Ne Temere_ , eliminated the "surprise marriage" by shifting the role of the priest from a passive to an active one, and requiring him to "request and receive the consent." Back in 1865, however, it was only required that the couple express their consent before the priest, and Angelo and Anna did that. But the marriage was nevertheless truly _null_ , not just invalid but null, because even though there was an external, reciprocal act of a man and a woman, it was not one that was, per se, a manifestation of matrimonial consent, since no one who would have witnessed it would have seriously regarded it as a marriage. (See _Acta Sanctae Sedis_ 22 (1889-1890) 529-546, and Gasparri, _De Matrimonio_ , 1932 edition, par. 831)

Contrast this with another case. In 1904 Nicia and Varo married in a Catholic ceremony. Within two weeks, however, Varo was seeing a prostitute and after two and a half years he abandoned his wife and child. Nicia eventually petitioned to have the marriage declared invalid and, during the course of the proceedings, it was demonstrated that Varo, a lawyer, was a "free-thinker" and of the opinion that marriage was repugnant to human freedom and did not give rise to any bond. It was further proved that, much like Angelo and Anna regarding their marriage, Varo regarded his wedding ceremony with Nicia to have been "a joke and a comedy" that did not entail any obligations. The marriage was clearly _invalid_ and was found to have been so on the ground that Varo simulated marriage (today the ground might have been determining error - c. 1099). It was not, however, null because the wedding ceremony involved a reciprocal, external act of a man and a woman which was, per se, a manifestation of matrimonial consent. Unlike the wedding of Angelo and Anna, in other words, the ordinary bystander or attendant at this wedding would have had no reason to conclude that a marriage was not taking place. (For the case of Nicia and Varo, See _SRRD_ 3 (1911) 15-29 and 460-473.)

It seems to me that many of us have, over the years, failed to appreciate the great wisdom of Cardinal Gasparri when he pointed out that, properly speaking, the term "null" should be reserved for those marriages that lack the _species seu figura matrimonii_ , the appearance or configuration of a marriage. And were Gasparri writing today, he would, I'm sure, see the marriage of Angelo and Anna as truly _null_ because it lacked the configuration of a marriage; whereas the marriage of Nicia and Varo, since it had the appearance of a marriage, he would regard as _invalid_ but not null.

The article itself attempts to provide an historical context as well as a rationale for the distinction between nullity and invalidity, but perhaps the two cases of Angelo and Anna and Nicia and Varo will provide a practical context for a better understanding of the issue.

And now the article itself.
Introduction

For years tribunals have been issuing what are popularly called annulments. For years we have been declaring marriages null, or perhaps even null and void, which is a kind of double whammy.

But over the past decade or so many of us have become increasingly uncomfortable calling marriages null. For most people, after all, their marriage was the most important event in their lives. It may have been the most humiliating, devastating, destructive, depressing, painful, frustrating experience of their lives and, almost incredibly, it may, at the very same time, have included the most romantic, enjoyable, rewarding, happiest times they can remember. But whatever the mix, their marriage was, for almost everybody, the most significant, the most important event of their life. So how can we say it never existed? Isn't that what "null" means?

People, in other words, are intuitively offended by having their marriages declared null. I guess we have always understood that but, at the same time, we felt we had to be honest and "tell it like it is". And our traditional understanding was that an invalid marriage was not a true or real marriage and that, in truth, it didn't really exist as a marriage.

In recent years, however, more and more canonists have begun to question the accuracy of that position. They have begun to ask, "Are the terms invalid and null really synonymous? If not, are some invalid marriages also null? And if so, which ones?"

This paper attempts to answer those questions. It does so by discussing what I see to be the four basic positions that have evolved over the years on the subject. These positions are: 1) All invalid marriages are null; 2) Only those marriages that are invalid due to lack of form are null; 3) Only those marriages that are invalid due to a defect of consent are null; and 4) The only marriage that is null is the one that never took place.

The first three positions I shall discuss rather briefly; the fourth somewhat more at length.

The Four Positions

Position One - All invalid marriages are null.

This, it would seem, is the most popular position. According to this opinion the terms "invalid" and "null" are perfectly synonymous. Gasparri noted that in common parlance the two terms, invalid and null, are used interchangeably1, and both the 1917 and 1983 Codes likewise seem to use "invalidity" and "nullity" as synonyms. The 1983 Code, for example, refers to marriages being null or to the nullity of a marriage more than a dozen times2 so, over the years, we have all become quite used to looking upon an invalid marriage as null, that is to say, as nothing or nonexistent, or as not really existing, at least as a marriage.

It is an approach that goes back to Roman Law. In the _Digest_ of the "Corpus Iuris Civilis", for example, Paulus, who wrote somewhere around the year 230, is quoted as saying that if a teacher marries his young student without her father's permission, "non est matrimonium - it is not a marriage", or "there is no marriage".3 And the _Institutes_ , which was promulgated by the Emperor Justinian in the year 533 as a brief, elementary textbook in Roman Law (it usually prints to about fifty pages), gives, at one point, a long list of people who are disallowed from marrying each other due to consanguinity, affinity or some other reason, and then concludes with these words, "But if, contrary to these precepts, people join together then nec vir, nec uxor, nec nuptiae, nec matrimonium, nec dos intelligitur - you have neither husband nor wife nor nuptials nor matrimony nor dowery".4 In other words, you've got nothing. You've got not just an invalid marriage but a matrimonium nullum, a null marriage, or no marriage.

Fast forward six hundred years and we see Gratian, in Cause 29, say that one who is in error about the person he or she is marrying does not really consent, and without consent, says Gratian, "there can be no marriage - nullum matrimonium esse potest".5

So this first opinion seems, at least at first glance, a fairly solid one. If a marriage is invalid, it's null. That's what invalid means. The Code of Canon Law seems to endorse this opinion, and there is adequate precedent for it in both Roman and medieval canon law, of which I have given but a few examples.

Position Two - Only those marriages that are invalid due to lack of form are null.

Although Cardinal Gasparri had noted that the terms invalid and null are, in common parlance, used interchangeably (or, as he said, "promiscuously") he also pointed out that, _properly_ speaking (si proprie loqui velimus), the two terms are _not_ synonymous. Properly speaking, according to Gasparri, the term "null" should be reserved for those marriages that are invalid because a required form of marriage was not in any way followed. So if, for example, a Catholic married before a Justice of the Peace without a dispensation from form, that marriage would, according to Gasparri, be properly called "null". Such a marriage would lack even the "species seu figura matrimonii \- the appearance or figure of matrimony" and would not therefore be a real marriage. It would, rather, be a non marriage. Canon 1014 of the old Code and c. 1060 of the new say that "matrimonium gaudet favore iuris", but the marriage of a Catholic before a Justice of the Peace is, according to Gasparri, a matrimonium nullum or no marriage, and therefore _non_ gaudet favore iuris - it does not enjoy the favor of law.

Viewing a civil marriage by a Catholic as nonexistent is, as we know, considered harsh today. In _Familiaris Consortio_ , Pope John Paul II said: "There are increasing cases of Catholics who, for ideological or practical reasons, prefer to contract a civil marriage, and who reject or at least defer religious marriage. Their situation cannot of course be likened to that of people simply living together without any bond at all, because in the present case there is at least a certain commitment to a properly defined and probably stable state of life."6 And Monsignor Funghini, in his decision of June 30, 1988 concluded from the Pope's remarks that we should not therefore regard such marriages as nonexistent but rather as juridically inefficacious.7

But calling the civil marriage null or nonexistent was only half of Gasparri's position. The other half (and in terms of our present discussion the more important half) was that any other invalid marriage should not be called nullum but just invalidum or perhaps irritum, that is to say, ineffectual or without effect. If, therefore, a marriage was invalid due to a diriment impediment or a defect of consent, such a marriage, according to Gasparri, should not, properly speaking, be called null but rather invalid or ineffectual.

This approach is not without its own tradition. In the _Decretals_ of Gregory IX (published in 1234), for example, Pope Gregory himself is quoted as saying: "If conditions against the substance of marriage are placed; if, for example, one says to the other, 'I contract with you if you avoid having children' ... then the matrimonial contract, however favorable it might otherwise be, nevertheless lacks effect - caret effectu".8 Gregory, it should be noted, did not say that such a marriage would be null; rather he said it would be ineffectual.

And this, according to Gasparri, was the proper way to describe any invalid marriage except for the one which altogether lacked the species seu figura matrimonii, namely the lack of form marriage.

Position Three - Only those marriages that are invalid due to a defect of consent are null.

It is consent, as we all know, that makes marriage. This is perhaps the most enduring and most basic principle in the canon law of marriage. In Roman Law, Rule of Law number 30 was "Nuptias non concubitus sed consensus facit - it is not cohabitation but consent that makes marriage,"9 and, in a slight variation of that, an ancient writer once thought to be St. John Chrysostom said "Matrimonium non facit coitus sed voluntas - it is not intercourse but the will that makes marriage."10 The same point is made over and over again throughout the history of canon law right up to the 1983 Code which says, in c. 1057, "The legitimately manifested consent of legally qualified parties makes marriage."

So since it is consent that makes marriage, it is understandable that some canonists would take the position that, where valid consent is lacking there is no marriage. One canonist who took that position was Robert Harrigan who, in his 1938 Catholic University doctoral dissertation, noted that marriages that are invalid due to a diriment impediment or to a defect of form should be called simply "invalid", whereas marriages that are invalid due to a defect of consent, and only those marriages, should be called "null". Harrigan pointed out that "whereas the word _null_ implies nonexistence the word _invalid_ simply indicates that although something exists it is lacking in legal force." Harrigan's bottom line conclusion was, in effect, this: that, since it is consent that makes marriage, where valid marital consent is lacking, there is literally no marriage. Where, in other words, valid consent is lacking the marriage is truly null.11 More specifically, what Harrigan had in mind was a situation where the consent was vitiated by fear or error or condition or simulation or ignorance or some sort of mental incapacity. In such cases, Harrigan would say, the marriage was truly null in the strict sense of the word, that is to say, nonexistent.

Harrigan 's position, it must be pointed out, was never widely accepted. Monsignor, later Cardinal, Giacomo Violardo, my own wonderful professor of marriage law at the Lateran University back in the 1950s, rather summarily dismissed it, saying simply, "If such marriages were really nonexistent, then there would be no need for the sentence of a judge terminating them. This, however, is not allowed by the Code which requires a double conforming affirmative decision in order for a marriage to be declared invalid, even a marriage that has been entered into as a joke."12

Although Violardo did not go into any detail on this matter, I think I do not misrepresent him when I say that he had long ago intuitively or implicitly accepted as normative what might be called the three basic though unwritten, derivative rules that stem from the axiom that consent makes marriage. I would construct those rules as follows: 1) valid consent makes a valid marriage; 2) flawed consent makes a flawed marriage (that is, an invalid marriage); and 3) no consent makes no marriage (that is, a null or nonexistent marriage).

The error in Harrigan's position, as I see it, was that he tried to blend together rather than to keep separate rules two and three. Instead of accepting the fact that a flawed consent makes a flawed marriage and no consent makes no marriage, he tried to say that flawed consent makes no marriage.

Is there an example of no consent making no marriage? Sure. A couple schedule a wedding date, make all arrangements with the local priest, hire a hall and so forth but then cancel at the last minute. The wedding may even be reported in the local newspaper. But in fact, of course, there is no marriage because there was no consent.

Harrigan, however, went beyond this scenario and claimed that, even when the couple actually exchange consent to marry according to form, the marriage must be regarded as nonexistent whenever the consent is flawed or defective, as might happen, for example, where a party lacks due discretion. It was, in effect, this undue extension of rule two that Violardo found objectionable and that caused him to reject the Harrigan position as untenable and unacceptable.

Or, to put it another way, Violardo belonged to the Gasparri school and clearly not to the Harrigan school.13

Position Four - The only marriage that is null is the one that never took place.

The opening canon, canon 1134, of the section in the Code entitled "The Effects of Marriage", repeats verbatim the old canon 1110, and reads as follows: "From a valid marriage there arises between the spouses a bond, which, by its nature, is perpetual and exclusive."

The first thing to be noted about this statement is that both the new and the old canon are speaking in terms of cause and effect. The valid marriage is the cause; the indissoluble bond is the effect.

Many of the commentators on the 1917 Code used this cause and effect approach as a way of defining both the valid and the invalid marriage. Gasparri14 and Wernz,15 for example, defined a _valid_ marriage as one that produces an indissoluble bond. And Wernz16 and Coronata17 defined an _invalid_ marriage as a marriage in which something obstructs its value or validity - matrimonium cuius valori aliquid obstat.

In an invalid marriage, in other words, the cause is present but not the effect; the marriage is present but not the indissoluble bond, because something (either an impediment or a defect of form or a defect of consent) prevents the cause from having its normal effect.

As already noted, this was basically the approach of Pope Gregory IX when he said that a conditioned marriage "caret effectu - it lacks its effect", namely an indissoluble bond.

According to this fourth opinion, then, the only marriage that should be called null is some sort of mock or make believe ceremony in which not only the effect but the cause itself is lacking. If, for example, a marriage takes place as part of a movie or stage production, it is understood that this is not a real marriage but rather a fictional or theatrical one. But such a marriage is not really a marriage. It is, in other words, no marriage, a matrimonium nullum.

When dealing with the real, as opposed to this fictional, world, however, there are, according to Bender three and only three pertinent juridic states. In ascending order these are: 1) concubinage, 2) an invalid marriage, and 3) a valid marriage. The invalid marriage, in other words, is the middle ground between the two extremes of a valid marriage on the one hand and concubinage on the other.18

So what precisely is an invalid marriage? It has, I think, been most accurately described, again by Father Bender, as follows: "a reciprocal, external act of a man and a woman which is, per se, a manifestation of matrimonial consent but which, because of some accidental obstructing cause, has no effect."19

The phrase in this description which perhaps needs some explanation is that the act is _per se a manifestation of matrimonial consent_. This, according to Bender, means simply that the bride says to her groom in these or similar words "I take you as my lawful husband" while the groom takes his bride as his lawful wife. Nothing more than that. Just enough so that those present and witnessing the ceremony would conclude that a marriage has just taken place.

Once that is done you have a marriage, a _valid_ marriage if no obex obstructs the indissoluble bond, an _invalid_ marriage if something prevents that effect from coming into being. But in either case there is a marriage.

Let me summarize this fourth opinion this way: in the world of _fiction_ there can be a marriage which is no marriage and which the entire audience recognizes as such; but in the world of _fact_ every marriage is a marriage whether it is valid or not.

Four arguments may be offered in support of this position:

**1** \- The Authority of the Manualists

Following Gasparri20 there is widespread agreement on the part of the commentators on the 1917 Code that to refer to an invalid marriage as "null" when the invalidity is due either to an impediment or to a defect of consent, is to use the word "null" in an improper or broad sense. Morsdorf21, Payen22, Sipos23, Cappello24, Violardo25 and Bank26, all take this position. For all of these authors, when a marriage is invalid due to an impediment or to a defect of consent, it should properly be called not null but either invalid or ineffective (irritum in Latin).

Seen in isolation, of course, this argument seems to favor the second position, that of Gasparri, rather than this fourth position. Presumably, however, all of these authors, were they writing today, would be in agreement with the already quoted paragraph 82 of _Familiaris Consortio_ where Pope John Paul stated, in effect, that the civil marriage of a Catholic, even though it is invalid due to a lack of form, is nevertheless not only a marriage but a marriage that produces a certain bond between the couple and obliges them to fulfill their commitment to each other. It seems fair to conclude, therefore, that all of these authors, were they writing in this post _Familiaris Consortio_ era, would be proponents of this fourth position and would consider it incorrect and improper to refer to any invalid marriage as "null", irrespective of whether the invalidity was caused by an impediment or by a defect of consent or by a defect of form.

Moreover, using the term "null" to describe these marriages is not only improper but also misleading and disadvantageous. The words "null" and "nullity" upset people. People find them offensive and offputting. How, they wonder, can the Church say that their marriage never existed when they know it did? And doesn't this make the children illegitimate? The word "invalid" has, I think, quite a different connotation from the word "null", and does not generally convey or reinforce these misconceptions about the marriage being nonexistent and the children illegitimate; and since, according to most of the authors, "invalid" is the proper and more precise term anyway, why not use it?

**2** \- The Nature of a Convalidation

John, a divorced man, and Jane, a single woman, marry. They are both Protestants. We would regard that marriage as invalid due to the impediment of ligamen or prior bond. After some years, however, John's former wife dies and the impediment therefore ceases. According to c.1156 the marriage is then automatically convalidated.

How does one explain that? If one holds that the initial marriage of John and Jane was, because of the impediment, truly null, that is to say, nonexistent, then one, I think, would be hard pressed to explain it. It would, after all, seem absurd to claim that, on the occasion of the death of John's first wife, his marriage to Jane just suddenly sprang into existence out of thin air, out of nothing, ex nihilo, so to speak.

But if, on the contrary, one holds that the marriage was there all along but had simply been juridically inefficacious due to the obex, the obstacle, the impediment of ligamen, then, of course, it makes perfect sense that, when the obstacle ceased to exist, the marriage was then able to achieve its normal effect of creating an indissoluble bond between the couple.

This is why the chapter heading in the Code dealing with convalidation is entitled "On the Convalidation of _Marriage_ \- De _Matrimonii_ Convalidatione", because what is convalidated must always be a marriage. It can never be anything less than an existing marriage. Concubinage, for example, cannot be convalidated. And neither can a nonexisting or null marriage, at least if the word "null" is used in its proper and accurate sense.

**3** \- The Standard Terminology used in Describing an Invalid Marriage

Another argument that favors this fourth opinion is based on the Latin words that have been used over the centuries to describe marriages that are not valid. Apart from the word _nullum_ (which, as we have noted, is used only improperly in this context) the three words that have been traditionally employed to describe invalidity are _invalidum_ , _irritum_ and _vitiosum_ , all of which point not to nonexistence but rather to some defect in an existing marriage.

First the word _invalidum_. The root word here is the noun _valetudo_ , which means health, or the verb _valere_ , which means to be healthy, well or strong. When, therefore, something is valid, it not only exists but is, moreover, strong or healthy or well. And conversely when something is invalid, it does not mean that the subject is nonexistent but rather that it is lacking strength or wellness. It is, in other words, infirm. It bears noting, incidentally, that, in English the adjective invalid and the noun invalid, that is to say, one who is wounded or injured or ill, are one and the same. It is also significant that both Schmalzgrueber27 and the _Decretals of Gregory_ 28 speak of the possibility of an invalid marriage "convalescing" and becoming a valid marriage. The _Decretals_ , for example, speak of a marriage that had originally been entered under coercion as convalescing or recovering its health through spontaneous cohabitation.

Secondly the word _irritum_ , which means fruitless, vain, ineffectual, or ineffective. The idea here is not that the marriage is nonexistent but rather that it does not produce its primary intended effect which, as c. 1134 says, is the perpetual bond. The _matrimonium irritum may_ produce, indeed usually _does_ produce, a bond, that is to say, certain obligations between the spouses and towards any children born of the marriage, but, because it is invalid, it does not produce the perpetual bond, the _vinculum perpetuum_ that is the primary effect of marriage.

And finally the word _vitiosum_ , which means faulty, defective, unfit or unsound. The Code uses the word "vitiate" only once, namely in c. 1099, but the authors frequently speak of a marriage being vitiated by an impediment or by a defective consent. What should always be kept in mind, however, is that the verb "to vitiate" means to damage, injure or corrupt. It does not mean to erase, eradicate or to render nonexistent.

**4** \- The Practice of the Congregations for the Sacraments and for Doctrine on the Impediment of Prior Bond.

Both the Congregation for the Sacraments and the Congregation for the Doctrine of the Faith have, over the years, issued decisions that imply that an invalid marriage not only exists but in fact produces a very significant canonical effect, namely the impediment of prior bond or ligamen.29

A typical case would be this: Margaret and James, both single and both Protestant, marry before a Justice of the Peace and divorce a couple of years later. Some years after that Margaret falls in love with Robert, a single Catholic, and they make arrangements to marry. Robert is aware of Margaret's previous marriage but both of them are under the impression that the marriage doesn't count as far as the Catholic Church is concerned because it was between two Protestants before a Justice of the Peace. So either they don't mention it to the pastor at all, or they do mention it and he mistakenly agrees that that marriage really didn't count. So Margaret and Robert marry and everything goes along fine until Margaret decides she wants to become a Catholic and enters an RCIA program where she learns to her dismay that her marriage to James is a presumably valid marriage. At that point she immediately submits the case to the local Tribunal where, fortunately, the marriage is found to have been invalid and is declared so by the required two concordant decisions.

So now everything is OK and nothing further need be done, right? Well, it depends. If the affirmative decisions by the Tribunal of first instance and its court of appeals really meant that the marriage was null, that is to say, that it never existed, then sure, nothing further needed to be done because the "declaration of nullity" meant that, when Margaret married Robert, she was entirely free to marry. In effect she had never been married before so when she married Robert before his pastor, it was a perfectly valid marriage. No further action had to be taken. Nothing further needed to be done.

According to the Congregations for the Sacraments and for the Doctrine of the Faith, however, something more _did_ have to be done. Based on how these Congregations have handled such cases in the past, a radical sanation would be granted for the marriage of Margaret and Robert because that marriage, contracted before Robert's pastor, was, according to these Congregations, invalid due to the diriment impediment of prior bond. This has been the practice of these two congregations - to grant a radical sanation in such cases.

In terms of the case under discussion the principal implication of this practice is that, when the marriage of Margaret and James was declared invalid, that declaration clearly did not mean that the marriage of Margaret and James never existed, because if it never existed, it could not, of course, have been an impediment to Margaret's second marriage.

What the practice of the two Congregations is saying, therefore, is that the impediment of ligamen can be caused not just by a valid marriage but also by an existing invalid marriage, provided that the two parties (in this case Margaret and James) were free to marry and then married according to whatever form that was required of them30, and also, of course, provided that the marriage had not already been _declared_ invalid by the Church.

This practice of the two Congregations, therefore, supports this fourth position in that it recognizes that an invalid marriage truly exists, indeed not only exists but exists to the point where it produces the significant juridic effect of giving rise to an impediment.

In short, whether or not we agree with this practice of these two prestigious Congregations, the fact is that the practice tends to corroborate the position that the only marriage that is null is the one that never took place. Any marriage that did take place, by that very fact, exists and is not therefore null in the proper sense of the word.31

Conclusion

If we agree with this fourth position, what is it that we really do when we declare a marriage invalid? If we are not declaring it null or nonexistent, what are we saying?

We are saying that the marriage suffered from some substantial defect that prevented it from achieving its principal effect of creating between the spouses a perpetual bond. We are saying that, from its inception, the marriage did not enjoy the kind of wholeness or integrity or soundness or health that the Church, at a given point in history, requires for a marriage to be considered perpetually binding. These standards have, as we know, changed over the years. St. Thomas Aquinas, for example, explained at considerable length how the degrees within which consanguinity has been an impediment to marriage have varied according to various times, and how the Church has the right to determine which degrees would, in a given era, be considered as diriment impediments.32 And, in our own time, due in no small part to the Second Vatican Council, we have seen both jurisprudence and legislation alter the minimum standards for validity in a host of areas including impotence, ignorance, psychic incapacity, error of quality, imposed error, determining error, intention against fidelity, intention against sacramentality and defective convalidation.

In all of these areas, it seems to me, the Church is not questioning the existence of marriages tainted with one or another of these factors, but is simply setting new criteria for determining at what point a given marriage fails to meet minimum standards of marital health that are appropriate for our age. It is, in other words, a matter of quality, not of existence.

The Tribunal, therefore, serves a kind of "quality control" function. When petitioned, a Tribunal investigates whether a given marriage meets the minimal standards for validity established by the Church for our time, and when the Tribunal is morally certain that it does not, it declares the marriage to have been invalid. This, as I understand it, is what we are about.

1998

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ENDNOTES

1 Petrus Card. Gasparri, _De Matrimonio_ (Rome, Typis Polyglottis Vaticanis, 1932) n. 45.

2 Canons 1100, 1123, 1157, 1160, 1432, 1673, 1677 §3, 1682 §§1 and 2, 1683, 1684 §1, 1685, 1686, 1690, 1700 §2 and 1702. See also cc. 1085 and 1087-1090.

3 _Digesta_ 23, 2, 66.

4 _Instituta_ 1, 10, 12.

5 _Decretum_ C. 29, q. 1.

6 _AAS_ , LXXIV (1982) 183, 82.

7 _ARRT_ Dec. 80, 442. For a translation of the Funghini law section see Wrenn, _Law Sections_ , pp. 88-93.

8 X, 4, 5, 7.

9 _Digesta_ 50, 17, 30.

10 Opus Imperfectum in Matthaeum, c. 1, C. xxvii, 2; P.G. 56, 802.

11 Robert J. Harrigan, _The Radical Sanation of Invalid Marriages_ (Washington, The Catholic University of America, 1938, n. 116) pp. 99-100.

12 G. Violardo, _De Matrimonio_ , pp. 108-109.

13 Ibid. p. 106.

14 Gasparri, op. cit. n. 39.

15 Franciscus Wernz and Petrus Vidal, _Ius Matrimoniale_ , (Rome, Universitas Gregoriana, 1946) n. 22.

16 Ibid. n. 22.

17 Matthaeus Conte a Coronata, _De Matrimonio_ (Italy, Marietti, 1957) n. 30.

18 L. Bender, "Matrimonium Invalidum" in _Angelicum_ , 1941, p. 301. See also Th. Vlaming and L. Bender, _Praelectiones Iuris Matrimonii_ (Bussum, Paulus Brand, 1950) p. 43. It was, incidentally, in this 1941 publication, that Bender with his characteristic conciseness wrote: "Matrimonium invalidum absque ullo dubio est aliquid seu non est mera matrimonii negatio: non est idem ac nullum matrimonium." Which in English would be: An invalid marriage is without any doubt, something; it is not, in other words, an absolute negation of marriage; it is not the same as a null marriage.

19 Bender, op cit. p. 309 and Vlaming-Bender, op cit., p. 43.

20 Gasparri, op cit. n. 45.

21 K. Morsdorf, _Die Rechtssprache des Codex Iuris Canonici_ (Paderborn, 1937) pp. 222-223.

22 G. Payen, _De Matrimonio_ (Zikawei, Tousewe, 1935) n. 139.

23 Stephanus Sipos, _Enchiridion Iuris Canonici_ (Rome, Herder, 1954) n. 100, 1.

24 Felix Cappello, _De Matrimonio_ (Italy, Marietti 1961) n. 48.

25 Violardo, op cit. p. 106.

26 Joseph Bank, _Connubia Canonica_ (Rome, Herder, 1959 ) p. 53.

27 Franciscus Schmalzgrueber, _Ius Ecclesiasticum Universum_ , 4, 1, 1, 3, 3, nn. 458-459.

28 X, 4, 1, 21.

29 _CLD_ 5, 551-552 and _Studia Canonica_ , 1996, 492-494.

30 It is true that, had James been a Catholic when he married Margaret before the Justice of the Peace, the Congregations would not have considered that ceremony as giving rise to the impediment of ligamen. This is not to say, however, that the Congregations would, in practice, be in disagreement with the sentiments of John Paul II expressed in the already quoted passage from _Familiaris Consortio_ , or that they would, in effect, be endorsing the old Gasparri opinion which held that the civil marriage of a Catholic would be truly null. Rather it would merely be saying that the Congregations would recognize the unique status of the lack of form marriage as a marriage that exists but not as the kind of marriage that would produce the impediment of ligamen.

31 Contrary to the practice of these two Congregations, the Rota and the Signatura hold that only a _valid_ marriage gives rise to the impediment of ligamen ( _The Jurist_ , 1987, pp. 358-370). To these two tribunals, therefore, the question of whether an invalid marriage exists or does not exist is, in terms of the matter under discussion, irrelevant since in neither case does it give rise to the impediment.

32 St. Thomas, _Suppl._ , Q.54, a. 4.

# APPENDIX ONE

## THE EUCHARIST AND THE INVALID MARRIAGE

The aim of jurisprudence is to determine whether or not a marriage is valid. Although our pragmatic society, in many cases and perhaps in all, considers the notion of validity meaningless, nevertheless it is important to Catholics for one reason: because it is widely assumed and commonly taught that a Catholic in an _in_ valid marriage cannot receive the Eucharist.

The principal legal source for this is Book III, Title III, Chapter II, Article II of the Code. Canon 853 says that "every baptized person who is not prohibited by law can and ought to be admitted to Holy Communion." The subsequent canons list those who are prohibited by law:

854-infants

855-the publicly unworthy, such as the excommunicated, interdicted, notoriously infamous

856- those not in the state of grace

857-those who have already received the same day

858- those who are not fasting

Are Catholics in invalid marriages prohibited by any of these canons? Certainly not all of them consider themselves to be outside the state of grace. Nor are all notoriously infamous. Since the abrogation of canon 2319, §1, 1°, they are no longer excommunicated by universal law for going before a Protestant minister and they never were excommunicated for going before a justice of the peace. Here in the United States, by decree of the Third Council of Baltimore (n. 124) Catholics in invalid marriages after divorce _are_ excommunicated, but, if this becomes a crucial factor, it will simply not stand up because no one will understand why people in Canada, for example, can receive holy Communion while those in the United States cannot.

This is not to say that all Catholics in invalid marriages _can_ receive holy Communion. It only says that the Code does not automatically exclude them - as seems to be the general assumption. It might be noted incidentally that the Code does not exclude baptized Protestants either. Canon 853 does not say "every baptized _Catholic_ who is not prohibited by law can and ought to be admitted to Holy Communion." It says "every baptized _person_." Nevertheless, even though Protestants are perhaps not _canonically_ prohibited, some feel that they are _theologically_ prohibited. They ought not to _receive_ our Communion because they are not _in_ our Communion. The same might be said about people in invalid marriages. Perhaps they do not sufficiently witness to the total Catholic teaching to be permitted into full Communion. This may be true, but such sophisticated theological reasoning would surely admit in practice of a great many exceptions.

Even if all are not automatically excluded, still many if not most such people _are_ canonically prohibited either because their publicly receiving the Eucharist would cause concern and misunderstanding and be damaging to the common weal (can. 855) or because they do not consider themselves to be in the state of grace (can. 856). It is for these people especially that we have tribunals and that the tribunals produce or create the jurisprudence that is the principal subject of this paper.

Before we turn to this subject, one more word, not on what is, but on what should or might be, and how and why we might change it. The two impediments of canons 855 and 856 could no doubt be changed in practice by 1) a vigorous kerygma on the permanence of marriage and 2) a renewed emphasis on the reigning mercy and forgiveness of God - such as is practiced in the Orthodox Church. Several sociological and factual reasons suggest that this would not be out of order. The two principal ones are: a) the anonymity of the mobile society where knowledge of the marital status of one's neighbor is becoming increasingly rare and b) the practical inability of our court system to process a reasonable percentage of the marriage problems in megalopolis or even metropolis, with the result that the court system tends to work more injustice than justice. We have, in other words, imposed legal strictures on the people, but have outgrown our ability to administer the system.

This, of course, is not the only possible solution, but the proper solution, in my opinion, is in positive kerygma and positive mercy, which is not really a contradiction but only a tension.

1969

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# APPENDIX TWO

## MARRIAGE AND COHABITATION

Occasionally there will come to the attention of a tribunal a marriage in which the spouses never at any time lived together. Several variations on the theme are possible but one example will suffice for orientation purposes.

Joan, twenty years old, married William, twenty-three, in a Catholic church in 1960. Joan was pregnant by William at the time and, although neither party was particularly interested in marriage, Joan wanted the child to be legitimate; her parents were also quite insistent that Joan and William enter a proper marriage. The couple therefore decided to go through with the marriage ceremony, but they also agreed not to cohabit afterwards. William, as a matter of fact, lived and worked in a rather distant city and intended to continue his life as usual.

The tribunal interviewer, after discussing the matter thoroughly with both parties, concluded that there was no real force exerted, that neither party made any specific intention excluding children or against fidelity, that there was no apparent intention, even hypothetical, to enter a dissoluble marriage, and that, despite the unusual arrangement, there was no evidence of total simulation. In short, all the usual _capita nullitatis_ , when judged by the customary criteria, tested negatively.

In Roman law, of course, cohabitation or _conviventia_ was an essential element of marriage, so that without it there was no marriage. The familiar definitions of marriage of Justinian ("viri et mulieris coniunctio individuam consuetudinem vitae continens") and of Modestin ("coniunctio maris et feminae et consortium omnis vitae") indicate this quite clearly.

For the Romans, however, _conviventia_ was not the only essential element. It was only the material element. The other essential element, the formal one, was what the Romans called _affectio maritalis_ , that is to say, the intention to live together as man and wife. This is what distinguished marriage from concubinage among the Romans and gave rise, at least according to some, to the adage: "Nuptias non concubitus, sed consensus facit."

The adage did not derogate from the essentiality of _conviventia_ among the Romans. The _deductio mulieris in domum viri_ was still necessary. It is true that marriage could be performed by proxy, but even here the procurator no doubt led the woman into the groom's home. In one way or another it was considered essential that the _conviventia_ be established.

The importance of _conviventia_ , of course, worked both ways for the Romans. Not only was _conviventia_ necessary to constitute marriage, but when it no longer existed (e.g., when one of the spouses became a captive) the marriage simply ceased to be. Roman marriage was thus a highly dissoluble creature and as such did not suit the Christian jurist.

Christian law, therefore, tended to de-emphasize marriage as a fact and to highlight marriage as an agreement or a contract. The shift in emphasis was from the material to the formal element. And canonical jurisprudence eventually got around to saying that the material element was not at all essential but that it pertained only to the integrity of marriage.

If the reader is not adverse to a little century skipping, I should like now to return to our tribunal interviewer who is faced with the problem of William and Joan. He knows that his judgment about the marriage cannot be based on Roman law, however much this would facilitate a judgment favoring nullity. He must instead base his judgment on current Rotal jurisprudence.

Rotal jurisprudence in this area is a veritable labyrinth, largely because some decisions tend to discuss general principles and theory while others dwell on specific applications and practice. It is, furthermore, one of those areas where theory and practice are sometimes in quite obvious conflict. It is rather like the conflict between the general norm of attendance at Mass on a Sunday and the fact that the mother nursing her sick child would do better _not_ to attend Mass on a particular Sunday.

In respect to a non-cohabitive intention such as that of William and Joan, perhaps the jurisprudence of the Rota and the manuals can be best summarized in the following propositions. The development in these propositions from the general to the particular and from theory to practice is all too obvious.

**a.** _Cohabitation, in itself, does not pertain to the essence but to the integrity of marriage_. Some earlier writers, especially Sanchez and Schmalzgrueber, held that a permanent intention against cohabitation was against the substance of marriage. Gasparri, however, said:

Sed si ius matrimoniale utrique parti sartum tectumque sit, non putamus hanc doctrinam veram esse, quia communio habitationis, tori et mensae non pertinent ad substantiam matrimonii; et revera nonnunquam matrimonium conscientiae cum hac tacita vel expressa conditione permittitur.1

This opinion of Gasparri has now been widely adopted in Rotal decisions.

**b.** The mere exclusion of cohabitation does not, in itself, prove that a marriage was null. Wynen, for example, in a Rota decision says:

Notissimum est in iure, cohabitationem coniugum pertinere quidem ad integritatem, non autem ad essentiam matrimonii; quamobrem ob solam exclusionem cohabitationis, etsi ante nuptias iam volitivam, matrimonium declarari nequit nullum.2

This is perfectly obvious in two cases especially, the _first_ being the "matrimonium conscientiae" mentioned above by Gasparri (where, for example, the spouses do not live together because cohabitation would mean loss of inheritance - cf. can. 1104 ff.) and the _second_ being the case of a justifiable temporary postponement of cohabitation ("Verbi gratia, operarius qui convenit cum sponsa de emigrando, etiam per longum tempus, in alienas regiones, ad lucra facienda, nullimode afficit vinculum neque iura ex vinculo emanantia.")3

**c.** Nevertheless, in practice, cohabitation is necessary for the proper fulfillment of the purposes, rights, and obligations of marriage. The Rota, coram Parrillo, said:

Nam licet coniugum cohabitatio non sit de essentia coniugii, sed potius spectet ad eius integritatem, necessaria tamen est ad matrimonii fines consequendos et ad iura et obligationes per consensum assumpta practice tradenda.4

**d.** _Furthermore, a non-cohabitive intention can sometimes be an_ "indicium" _of nullity_. Wynen, for example, at the conclusion of a long, ten page section _In Iure_ of a 1944 sentence says:

Seria et definitiva voluntas non concedendi ullo modo aut umquam ius ad vitae consortium ac ceterum mutuum adiutorium, indicium plus minusve certum esse potest defuisse in contrahente intentionem tradendi comparti ius principale in proprium corpus.5

**e.** _Indeed, where aversion is present, this indicium becomes a certain presumption of nullity_. This surely is what the Rota is saying in the following section of the decision coram Canestri:

Sin vero, ut aliquando contingere potest, causa denegandae communionis vitae habetur in irreparabili aversione inter sponsos, qui nihilominus aliqua necessitate coguntur ad morem gerendum in acceptatione connubii, tunc, nisi (quod saepe facilius est) concludendum sit pro simulatione totali matrimonii, praesumendum semper manet reiectum ius ad prolem, ideoque contractum invalidum.6

**f.** Finally, in practice, outside of the two exceptions mentioned above in b), a non-cohabitive intention is always presumed to be invalidating. This is lucidly clear from two Rotal decisions, one with Dean Jullien as the ponens and the other coram Canestri. The first reads:

Exclusio communionis tori, mensae, habitationis non est contra substantiam matrimonii, dummodo salvum sit ius in corpus, ut fit in matrimonio conscientiae. At si nupturiens, cohabitationem excludendo, positive vellet a consensu matrimoniali excludere in perpetuum omne vitae consortium et consequenter ius ad coniugalem actum, integrum non remaneret ius coniugale, ideoque matrimonium invalidum foret.7

The second decision (coram Canestri) is even more explicit. It reads:

Celebratio matrimonii cum proposito ... de non cohabitando, per se non invalidat sacrum contractum, quia communio commorationis tori et mensae non pertinent ad coniugii substantiam; sed haec in abstracto ... quam practice .... Quis enim esset qui, excludens coniugalem vitae consuetudinem in matrimonio contrahendo, velit simul sese obligare ad officia quae nunquam explere in posterum intendit? Iam arduum est concipere traditionem cuiuslibet iuris in perpetuum ad exercitium non perducturi .... Quoties ideo in matrimonio ineundo ostenditur exclusa cohabitatio, in tali consensus coarctatione, per violentam praesumptionem coniicienda est implicita reiectio trium bonorum; sacramenti, fidei et prolis. Quod autem fides et proles exclusae sint in iure, non in exercitio iuris, clare apparebit quoties denegatio cohabitationis sit _tenax_ , _perpetua_ , gravius vero, in _pactum_ vel _conditionem_ deducta. Tunc revera arguere fas est verbo exclusae cohabitationis, nihil aliud venisse nisi synonimum simulationis consensus totalis potiusquam partialis.8

The development in these six propositions could hardly be clearer. The first says that in theory cohabitation _does not_ pertain to the essence of marriage whereas the last says, or comes very close to saying, that, in practice, cohabitation, or rather the intention to cohabit, _does_ usually pertain to the essence of marriage.

The incidental question of which precise _caput_ is appropriate for the case of William and Joan is not entirely clear. It is, however, a somewhat academic question since any or all three of the _bona matrimonii_ may be presumed ( _per violentam praesumptionem_ ) to be rejected whenever the denial of cohabitation is tenacious and perpetual.

An implication not to be missed in the development of the propositions is the restoration of a certain dignity to the material element of marriage, the factual living out of marriage. But there is, I think, an even more important and broader implication. It is that law is an existential thing, that it must relate to the real world and not to theory only, that it must deal with the here and now of real people, that it must have a certain flexibility and that it must not only direct the actions of men but must also serve men. The law, after all, is made for man, not man for the law.

1967

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ENDNOTES

1 _De matrimonio_ , n. 905.

2 _S.R.R._ Dec. XL, dec. 27, 11, p. 164.

3 Cf. _S.R.R._ Dec. XLVII, dec. 70, 2, p. 268 - coram Canestri.

4 _S.R.R._ Dec. XVI, dec. 19, 10, p. 160.

5 _S.R.R._ Dec. XXXVI, dec. 6, 25, p. 68.

6 _S.R.R._ Dec. XXXVII, dec. 42, 24, p. 397.

7 _S.R.R._ Dec. XXIX, dec. 74, 29, p. 740.

8 _S.R.R._ Dec. XXXIX, dec. 2, 5, pp. 8-9.

# APPENDIX THREE

## IMPORTANT DATES REGARDING COURT PROCEDURES FOR ADJUDICATING MARRIAGE CASES

**1234** \- _The Decretals of Gregory IX_ (the Liber Extra) - The official law of the Church from its inception to the 1917 Code. It was composed of five chapters, iudex, iudicium, clerus, connubia and crimen. Book II (iudicium) which contained 30 titles and was 99 pages long, directed how tribunals were to function. The canonists who commented on the Liber Extra for the next 700 years are known as decretalists.

**1306** \- _Saepe Contingit_ \- the decree issued by Clement V allowing courts on an ad hoc basis to use a summary process rather than the solemn procedure found in the _Decretals_.

**1311** \- _Dispendiosam_ \- the decree of Clement V granting to all tribunals the faculty to use the summary process in all the types of cases mentioned in the decree.

**1741** \- _Dei miseratione_ \- the constitution issued by Benedict XIV requiring every diocese to appoint a Defender of Marriage who would be involved in every marriage case and who would appeal every first instance affirmative decision.

**1840** \- _Cum moneat_ \- an instruction issued by the Congregation of the Council which was designed to reinforce, clarify and amplify _Dei miseratione_.

**1869** \- _De Potestate Ecclesiastica Iudicandi_ \- an anonymous article in the _Acta Sanctae Sedis_ which noted that almost all judicial cases were then being heard not by the solemn but rather by the summary process.

**1884** \- _Causae Matrimoniales_ \- an instruction issued specifically for the United States (which was still "missionary territory" and was not therefore subject to the stipulations of _Dei miseratione_ ) requiring the presence of a Defender of Marriage who would appeal every first instance affirmative decision.

**1917** \- _Codex Iuris Canonici_ -the first codification of church law, which was composed of five books. Book IV (De Iudiciis) required, in marriage cases, not only the presence of a Defender of the Bond along with the mandatory appeal of every first instance affirmative decision, but also that every case be heard by a college of three judges.

**1936** \- _Provida Mater_ \- an instruction that consisted of 240 articles that attempted to apply the contentious process found in the 1917 Code to the hearing of marriage cases.

**1970** \- _The American Procedural Norms_ \- a kind of summary process approved by Rome for the hearing of marriage cases. It was utilized in the United States with considerable success from 1970 until 1983.

**1971** \- _Causas Matrimoniales_ \- an Apostolic Letter of Paul VI for the universal church, modifying the prescriptions of the 1917 Code for the hearing of marriage cases in the areas of competence, the number of judges, the use of lay people and appellate procedures.

**1983** \- _Codex Iuris Canonici_ \- the complete law of the Church in seven books. The group drafting Book VII (On Processes) worked diligently beginning in 1966 but rather than drafting a process specifically designed for marriage cases, it produced instead a law for contentious cases.

**1996** \- _Allocution to the Rota_ \- in view of the fact that, on the one hand, marriage cases and contentious cases are, in several ways, quite different from each other, and that, on the other hand, the _Code of Canon Law_ (cc. 1425 §1, 1° and 1691) nevertheless requires that the canons on contentious trials are generally to be followed in trials regarding marriage validity, John Paul II called for "corrective measures by the legislator" as the solution to this problem.

**2005** \- _Dignitas Connubii_ \- an Instruction issued by the Pontifical Council for Legislative Texts consisting of 308 articles. While the Instruction did not actually repeat the two problematic canons, it nevertheless gave the impression that marriage cases are basically contentious matters and it therefore failed to solve the underlying problem that had been outlined by John Paul II.

**2015** \- _Iudex Dominus Jesus_ \- an Apostolic Letter issued _motu proprio_ by Pope Francis providing finally a practical summary process for marriage cases.

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