Null or Not? Canon Law Holds the Key to a Marriage’s Validity
BY Edward Peters
November 23-29,1997 Issue | Posted 11/23/97 at 2:00 PM
EVERY ANNULMENT case comes down to a single question: has the marriage in question been proven null under canon law? Annulment cases do not turn upon whether the marriage in question was predominately happy or argumentative, on whether the parties were good Catholics or bad, or on whether there was alcoholism, infidelity, or spouse-abuse in the marriage.
Annulment cases, even when these other issues are relevant, as they frequently are, are concerned only with whether, under the canon law of the Catholic Church, the parties to the impugned marriage entered what the Church understands and proclaims as a true marriage. Further, because marriage enjoys the favor of law, only if it is proven that the parties did not enter such a marriage can it be declared null.
Capacity, Consent, and Form
Canon law has long recognized three fundamental ways in which a marriage might be proven invalid. These three categories concern what are termed capacity for marriage, consent to marriage, and the form of marriage. Briefly, if either (or both) of the parties to the marriage can be proven to have lacked canonical capacity for marriage, or if one or both of the parties can be proven to have failed to consent to true marriage, or if one or both parties can be proven to have violated various requirements regarding the form, or ceremony, of marriage, that marriage can be declared null.
Note, however, that if even one of these three issues can be proven with regard to either spouse, the whole marriage must be declared null. In some cases, multiple grounds for nullity, even relating to both parties, can be investigated and proven, although this is not frequently done for administrative reasons. Lest all of this sound like six big ways to attack the validity of any marriage, recall that canon law presumes that both parties to a marriage had capacity for marriage, that both parties consented to what the Church recognizes as a marriage, and that both parties have observed due form in marrying; it is rather the lack of these qualities that must be proven for nullity to be declared.
Failure of Consent?
Every society requires its members to possess certain basic qualities before being allowed to marry. For example, regardless of how much two people might be in love and regardless of how well they might be able to articulate the various aspects of marriage, we would say that two 13-year-olds cannot marry, that is, that they lack capacity for marriage. Put more technically, their age is an impediment to marriage under, as it happens in this example, both canon and civil law. Therefore, even if such a couple somehow found a minister or civil official to pronounce a wedding ceremony over them (say, they provided false birth certificates), their marriage would be null because of their lack of capacity for marriage at the time of the wedding.
Societies develop different lists of impediments to marriage based in part on the issues that each society feels are important for marriage. In the Roman Catholic Church, the current impediments to marriage are listed in the 1983 Code and include such things as lack of age, being already married to someone else, being a cleric, or being too closely related by blood to an intended spouse.
Many things that the Church considers as impediments to marriage (such as being a cleric or a nun) are not impediments to marriage under civil law. Thus, a priest can enter marriage under civil law even though that would be an invalid marriage under canon law. In any event, because the things which, as impediments, could lead to canonical nullity of a marriage are usually very easy to spot before the ceremony, relatively few marriages with impediments are attempted and hence relatively few annulment cases are heard on the grounds of lack of capacity due to impediments. Far more cases of matrimonial nullity are heard on the possibility of failure of consent.
The ‘Psychological Canons’
Assuming two people have capacity for marriage, they still must freely choose to enter marriage in order to be considered married. People who apparently enter marriage deceived by fraud, or under duress, or out of force and fear, may, upon proving such allegations, be found not to have entered marriage at all. But beyond such relatively clear-cut cases which most people recognize as providing a basis for declaring any kind of contract null, the Catholic Church also expects that people entering marriage possess sufficient emotional stability and psychological maturity to enter what, for most of them, will be the most important thing in their lives.
Thus, under canon law, people who suffer from a grave lack of discretion of judgment about marriage can, in certain cases, be found to have attempted marriage invalidly, even though they were free of any impediments to marriage and even though they followed due form in being married. Such cases, of course, call for the most discerning judgment in tribunals, if only because the Church presumes that people entering marriage freely intend to do so and understand what the Church expects of them. Nevertheless, many putative marriages are found, upon investigation, to have been null according to the so-called “psychological canons.”
One way to appreciate the importance of the “psychological canons” in modern canon law is to stop for a moment and consider the state of the society in which most people (I speak here mainly of Americans) are trying to marry these days. In brief, there has probably never been a more difficult time to enter what the Church has always upheld as true marriage.
Virtually nothing in modern society supports or trains one for traditional, healthy, or normal marriage any more. Most people attempting to enter marriage now have been raised with legalized abortion, an almost complete acceptance of contraception, the collapse of nearly all forms of sexual restraint, and a pervasive no-fault divorce mentality. Almost no major denomination still promotes the permanence of marriage as anything more than a pious goal, and even among Catholics, there has been a stunning drop in practical catechesis on this and related points over the last two generations. In brief, if ever there was a time to look for an increase in the number of cases in which the nullity of marriage is based on serious pre-wedding psychological and emotional distortions of marriage, it is now.
Obviously, of course, ecclesiastical tribunals cannot simply look at the dismal state of modern society and conclude that anyone in such a society is doomed to an invalid marriage. Neither canon law, nor repeated Church teachings on marriage and family life, nor a healthy understanding of the resiliency of human nature and the power of grace permit such facile conclusions. But such factors do suggest the danger of signing on to blanket criticisms of tribunals for “granting too many annulments.”
In Good Form
The final issue upon which an annulment case might be decided applies mostly to Catholics, although in some cases it is relevant to cases involving non-Catholics. According to canon law, Catholics wishing to marry must not only possess basic canonical capacity for marriage and express freely their consent to marriage as the Church understands and proclaims it, but they must also celebrate that wedding ceremony in accord with “canonical form.” Basically, this means that Catholics must “marry in the Church,” that is, before a properly delegated priest or deacon, with proper witnesses, and so on. The requirement of canonical form is what makes the marriages of Catholics before civil magistrates and non-Catholic ministers usually invalid.
The requirement of canonical form was introduced into Church life around the time of the Council of Trent and was originally intended as a way of heading off cases of secret marriage in which spouses, usually wives, were later abandoned and left without any means of proving their matrimonial rights. Over the centuries, it was also noted that certain pastoral goals such as marriage education could be fostered by knowing that couples would have to marry before a Church official.
To some degree, these pastoral goals are still served by canonical form requirements, although the need for canonical form as a protection against secret marriage has been all but eliminated due to good record keeping by civil governments. In any case, and notwithstanding some recent modifications in the requirement of form, the nullity implications of canonical form require American tribunals to declare null some 15,000 marriages involving Catholics each year.
Canonical form, because it is a requirement of ecclesiastical law binding only Catholics, does not apply to non-Catholic Christians, let alone to the non-baptized. Therefore, the fact that non-Catholics frequently marry in civil-only ceremonies is not grounds for annulment of such marriages, and as indicated above, current canon law even allows some Catholics to marry apart from canonical form. Each case of possible marriage nullity based on lack of form, therefore, requires an examination of the exact facts in order to be sure.
A final, very important point on grounds for annulments: each of the three factors discussed above must be investigated as they existed at the time of the wedding. Canon law on marriage, and the Church teaching it upholds, does not allow post-wedding factors, such as length of marriage or number of children, to make up for fundamental deficiencies in capacity, consent, or form that were present at the time of the wedding. Although many post-wedding factors are studied during annulment cases, these issues are studied for the kind of light, if any, they shed on pre-wedding factors affecting the parties when they were married.
This canonical and theological reality is what lies behind the occasional, but always disturbing annulment of a “marriage” that lasted 20 or 30 years and which produced many children. Such hard cases, far from being evidence that diocesan tribunals regard the permanence of marriage with levity, are proof of the commitment of tribunals to applying Church marriage law faithfully even in the face of stern criticism based on seriously incomplete understandings of the situation.
Conversely, the brevity of a marriage or the absence of children cannot be used as proof of its nullity, since once again, the main question before the tribunal is how the marriage started, not how it ended. Tribunal personnel are just as frequently scored by critics for their failure to recognize the “obvious” invalidity of a brief marriage as they are attacked for “blithely” annulling what look like perfectly good, long-time marriages.
Dr. Edward Peters is a matrimonial judge with the Tribunal of the Diocese of San Diego. His 100 Answers to Your Questions on Annulments (Basilica Press/Simon & Schuster, 1997), is available at Catholic books stores.
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