Are Many Marriages Today Invalid?
Important principles to keep in mind when speaking about marriage.
Pope Francis’ recent comments opining that “a great majority of our sacramental marriages are null” (or “some of our sacramental marriages are null,” according to later Vatican editing of the text) set off another media firestorm. His words reveal a common tendency among many in the Church, including many good-hearted pastors and pastoral workers, to pre-judge pessimistically the validity of someone’s marriage.
Given widespread confusion in the culture and in the Church about the nature of marriage, especially due to the high rates of divorce in the West, it often can be tempting to conclude that large numbers of contemporary men and women are not marrying validly and, therefore, their marriages are null.
Yet rash conclusions about the validity or nullity of marriages can be seriously problematic and detrimental to many couples and the institution and sacrament of marriage. Often, such judgments don’t do justice to the fullness of what the Church teaches about marriage, and they don’t take into account the objective means the Church uses to determine the validity of marriage.
What’s a Valid Marriage?
Even before being a “sacrament,” the Church sees marriage as being a natural institution in which men and women are capable of entering into validly. It is important to remember that God created natural marriage to be a partnership between a husband and wife for the whole of life, ordered to the good of the spouses and the procreation and education of offspring (Canon 1055.1). This spousal relationship is natural to the human person and is obtainable by the human person. Christ our Lord raised this natural marital relationship to being one of the seven sacraments of the Church — but only if it is between two baptized persons (Canon 1055.2). The marriage bond of a non-baptized person, while it may be valid and true, is not a sacrament and does not contain in it sacramental graces. Nonetheless, the Church does not see the ability to enter into a valid natural marriage as something only Catholics are able to establish. Non-Catholics can and do enter into valid natural marriages, except where there is a natural-law invalidating element, such as already being married to someone else.
Similarly, the Church does not see sacramental marriages, which only baptized persons are able to establish since it is a sacrament, as something reserved only to theologically sophisticated Catholics, as if some special gnostic-knowledge were necessary to marry validly or sacramentally.
In other words, the Church does not have a “high bar” of understanding that one has to clear, in order to marry validly and sacramentally, but rather a “low bar” of basics that one must not actively reject in order to do so. One does not have to have an exhaustive knowledge of what marriage is in order to marry validly.
Ignorance About Marriage
When it comes to ignorance about marriage, Canon 1096.1 of the Code of Canon Law says that for valid matrimonial consent, the parties must “at least not be ignorant that marriage is a permanent partnership between a man and a woman ordered to the procreation of offspring by means of some sexual cooperation.” Note that the Church here does not require agreement with these factors, but only that the person not be ignorant of them. In fact, the Church, in Canon 1096.2, even goes so far as to require explicitly that we are not to presume that a person is ignorant of this after puberty.
The point is that God, through the actions of Christ and his body, the Church, has designed marriage, and even sacramental marriage, to be a reality obtainable by the average man and woman — not just an impossible ideal that must be appreciated completely in theory first before being able to marry.
Errors About Marriage and Its Elements
But even if someone is not ignorant of marriage, can someone being in error about what marriage is validly consent to marriage? Sometimes yes, sometimes no, but again, here, there is a “low bar.” Contrary to popular misconceptions among many in the Church, simply being in error about the nature of marriage — including its permanence, fecundity, exclusivity or even its sacramental dignity — does not invalidate the act of marrying. In fact, as reflected in Canon 1099, such error only invalidates matrimonial consent if it “determines the will,” that is, only if it actually causes the person to choose, actively and in this particular case, something other than a true marriage.
In other words, simply growing up in a “divorce culture,” simply believing in divorce or simply misunderstanding the Church’s teachings on the sacramentality of marriage is not enough to constitute an invalid consent. For example, a man who believes in divorce still marries validly unless this belief causes him to intend explicitly, at the time of marriage, a divorceable union with this specific woman. Note that a general belief in divorce is not enough to invalidate consent. Rather, to be invalid, it must be something to the effect of “I, Tarzan, marry you, Jane, in a dissoluble union.” As another example, a general belief that marriage is not exclusive does not invalidate consent but, rather, it must be to the effect of “I, Tarzan, marry you, Jane, non-exclusively.” This is what it means for error to “determine the will” and is what Pope St. John Paul II emphasized in his important “Address to the Roman Rota” in 1993 and again in 2000.
Intention Against Elements of Marriage
Similarly, when it comes to invalidly marrying not due to “error” about marriage, but due to an intention against children, permanence or exclusivity, the intention to exclude these things (called “partial simulation”) only invalidates if it is a “positive act of the will.” The intention must actively and positively exclude these things at the time of marrying in order for the consent to be invalid. A mere erroneous belief, inclination or casual exclusion of these things is simply not enough to cause invalidity. Nor is merely a non-act (passive act) of exclusion, later acts of moral failing, such as adultery, or growing up in a divorce culture enough to render the act of marrying null. The exclusion must be deliberately chosen at the time of marriage. For example, a couple that marries not wanting children “right now” marries validly since they are not completely intending against children in this marriage. A couple that marries and uses artificial contraception, while committing a moral evil, still marries validly unless at the time of the marriage they intend for this marriage never to be open to offspring.
Given these important nuances, it is highly imprudent to try to determine, outside of a formal procedure, that a person has actively and positively chosen to exclude essential elements or properties of marriage or has determined to choose erroneously something other than marriage in a specific case. To do so, or worse, to project this onto a large number of Christian spouses, would lack foundation and be a grave injustice to Christian spouses, implying that a valid, sacramental marriage is only an unattainable ideal. Unfortunately, this can be seen in some of the views expressed at the recent synod and spills over into some of the language of Amoris Laetitia.
In fact, the Church’s law tries to protect marriages against this mentality by underscoring explicitly that as Catholics we presume the spouses are capable and are marrying validly unless proven otherwise (Canon 1060) to moral certainty (Canon 1608): Canon 1101.1 clearly regulates that when a man and a woman marry “the internal consent of the mind is presumed to conform to the words and signs used in celebrating marriage.”
The Danger of Pre-Judgment
Pre-judging the validity of marriages is a dangerous mentality that can do serious harm to the pastoral care of marriages, causing spouses to doubt whether they have married validly. The worse casualties would be those marriages experiencing difficulties, where such doubt could give rise to abandoning the marriage. This ultimately does harm to the institution and the sacrament of marriage.
No doubt, there are some cases where an invalidity is apparent, such as a Catholic marrying in a civil court without a dispensation, or situations involving divorced and civil remarriage without the previous marriage having been declared null. This is partially why those in such situations are not able to receive holy Communion. Yet even in these cases, the Church is careful in requiring that an official Church process or investigation must be done and a declaration made before concluding that the marriage is null.
However, situations involving possible invalid consent, such as error about marriage or intention against having children, permanence or exclusivity, should not be considered under such apparent invalidity. The fatal mistake that many make is to presume that such can be determined by us outside of a formal canonical process.
One simply cannot on one’s own conclude that a marriage “must be invalid,” whether one’s own or someone else’s. This ultimately lies at the heart of what some of the more radical proponents of the so-called “internal forum solution” are proposing — that even without a formal Church procedure, one is able to determine that a marriage “must be invalid.” Unfortunately, this mentality of informal pre-judgment also seems to be what is ungirding the somewhat problematic Article 14 of the new annulment procedures’ document, Mitis Iudex, which presents a canonically jumbled list of situations that allows for a briefer annulment process.
If determination of the validity of a marriage can be pre-judged and pre-determined outside of an official Church procedure, the ultimate result would be chaos and an anarchy that places us as a law unto ourselves, determining what is valid or not, what is good or evil.
Those of us who have had the privilege to work in marriage tribunals know that it is incredibly dangerous to prejudge cases, that is, to form an opinion about a marriage even before fully examining the evidence in detail. Such pre-judgment immediately colors one’s approach and easily compromises one’s objectivity and fairness. Every marriage case must be judged on its own merits, and every party deserves an objective consideration, rather than an “it must be invalid” pre-judgment.
The Presumption of Validity
So important is this principle of objectivity that the Code of Canon Law requires, as a matter of justice, that even in cases of doubt, marriage “enjoys the favor of law,” that is, the validity of a marriage must be upheld until the contrary is proven (Canon 1060). What this means is that, similar to the “innocent until proven guilty” principle in criminal law, marriages are to be considered valid until proven invalid.
In addition, so important is this presumption of the validity of marriages that the Church goes on to protect it by requiring that the presumption can only be overturned if there is “moral certainty” of invalidity, based on certain proofs (Canon 1608). That is, the invalidity cannot just be probably so or even more than likely so, but, rather, must be “morally certain” to be so.
Thus, it would be incredibly reckless and unjust for any of us, whether pastors, tribunal officials or even spouses themselves to pre-judge a marriage as “it must be invalid” without official, objective examination.
Just as it would be a travesty of justice to abandon the legal presumption of being “innocent until proven guilty,” it would be an affront against marriage to abandon, even informally or in our own minds, the important presumption enshrined in Canon 1060 of a marriage being “valid until proven otherwise.”
We pray that, with the current controversy over the Pope’s remarks, we are not also witnessing an erosion of this seriously important principle of the presumption of validity of marriages. To lose this presumption, especially in pastoral work, would be a great detriment to the sacrament of marriage and the salvation of souls.
Benedict Nguyen, M.T.S., J.C.L./J.D., D.Min (A.B.D.) is canonical counsel
and theological adviser for the Diocese of Corpus Christi, Texas, and an adjunct professor for the Avila Institute.
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