-1Matrimonial Law: Consent and impediments. Taken from DCA 5125, with permission from
Prof. Francis Morrisey, O.M.I., JCD.
Notes for personal and private use of Roman Catholic military chaplains.
Any reproduction is forbidden without the express permission of the author.
Introduction
In this session we will look at canons 1103-1107 inclusive on defective consent (due to a
defect of the will) and deriment impediments.
If you have not already seen this in another session or from you canon law classes in
University you should know that a marriage can be invalid due to one (or more) of
three things: defective consent, an impediment or a lack of form.
V.
DEFECTS OF THE WILL (cc. 1101-1103)
After having studied the various incapacities (1095) affecting matrimonial
consent, as well as the possible defects of knowledge (1096-1100), it is now time
to consider the defects of the will which can influence the giving of matrimonial
consent.
Can. 1101 §1 The internal consent of the mind is presumed to conform to the words or
the signs used in the celebration of a marriage.
§2 If, however, either or both of the parties should by a positive act of will
exclude marriage itself or any essential element of marriage or any essential property,
such party contracts invalidly.
Can. 1102 §1 Marriage cannot be validly contracted subject to a condition concerning the
future.
§2 Marriage entered into subject to a condition concerning the past or the present
is valid or not, according as whatever is the basis of the condition exists or not.
§3 However, a condition as mentioned in §2 may not lawfully be attached except
with the written permission of the local Ordinary.
-2Matrimonial Law: Consent and impediments. Taken from DCA 5125, with permission from
Prof. Francis Morrisey, O.M.I., JCD.
Notes for personal and private use of Roman Catholic military chaplains.
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Can. 1103 A marriage is invalid which was entered into by reason of force or of grave
fear imposed from outside, even if not purposely, from which the person has no escape
other than by choosing marriage.
Can. 1104 §1 To contract marriage validly it is necessary that the contracting parties be
present together, either personally or by proxy
§2 The spouses are to express their matrimonial consent in words; if, however,
they cannot speak, then by equivalent signs.
Can. 1105 (marriage by Proxy)
Can. 1106 (marriage using an interpreter)
Can. 1107 Even if a marriage has been entered into invalidly by reason of an impediment
or defect of form, the consent given is presumed to persist until its withdrawal has been
established.
To understand the dynamics of canons 1101-1103, we must remember that
consent is defined in canon 1057 as "an act of the will..." The will, however,
presupposes both knowledge and capacity. However, even when capacity and
sufficient knowledge exist, there still remains the final step, that of consenting to
marriage. Without this act of the will, there can be no marriage.
The act of the will may be deficient in three major ways:
- because of simulation
- because of force and fear
- because of conditional consent.
Each of these points is covered in turn in canons 1101-1103.
Before the various incapacities were recognized in law, most Rotal decisions were
based on the grounds of simulation. The ground has the advantage that the
intervention of an expert is not required, at least generally.
-3Matrimonial Law: Consent and impediments. Taken from DCA 5125, with permission from
Prof. Francis Morrisey, O.M.I., JCD.
Notes for personal and private use of Roman Catholic military chaplains.
Any reproduction is forbidden without the express permission of the author.
1.
Simulation (c. 1101)
"§1. The internal consent of the mind is presumed to conform to the
words or the signs used in the celebration of a marriage."
"§2. If, however, either or both parties should by a positive act of the
will exclude marriage itself or any essential element of marriage or
any essential property, such party contracts invalidly" (c. 1101).
a.
The presumption of paragraph 1
Canon 1101 on simulation begins with a general presumption of honesty on the
part of all persons entering into marriage.
However, in spite of the presumption, it is well known that, at times, people do simulate.
Therefore, the court will not only have to reverse the presumption, but also to show why
the person intended to simulate.
Most cases of simulation, therefore, will have two aspects:
-
the existence of the simulation
the reasons for the simulation.
b.
Simulation of marriage (c. 1101, §2)
As canon 1101, §2 stands, there are many possible ways to simulate:
-
the person: either or both spouses. There is no question here of the intervention
of a third party as in cases of fraud, force and fear, etc.
-
the object of simulation:
. marriage itself (known as total simulation)
. an essential element (the good of the spouses, the good of children)
. an essential property (the good of fidelity - unity; the good of the sacrament indissolubility).
-4Matrimonial Law: Consent and impediments. Taken from DCA 5125, with permission from
Prof. Francis Morrisey, O.M.I., JCD.
Notes for personal and private use of Roman Catholic military chaplains.
Any reproduction is forbidden without the express permission of the author.
i.
Total simulation (exclusion of "marriage itself")
a) Canonical principles
The person who simulates consent invalidates marriage only if the ceremony is "gone
through" for a motivating reason which is not part of matrimonial consent. This reason
must be "the principal and final cause of the contract to which the contracting party
tends and aims."
Total simulation implies the existence of two distinct acts of the will, namely:
- the positive intention of not marrying,
- the positive intention of giving an apparent manifestation of consent, which
manifestation the simulator knows to be false.
ii.
Partial simulation
Canon 1101, §2 underwent many revisions in the process of being re-drafted. The
concern of canonists was centered on what could be excluded.
At the 1981 Plenary Meeting, it was decided to drop the reference to the
"sacramental dignity" of marriage, in order to express concern for other
Christians.
The formula found in the promulgated canon, "an essential element of marriage"
can be understood, it seems, to refer to the two ends of marriage: the bonum
coniugum, the bonum prolis. With time, the determination of what truly
constitutes the "bonum coniugum" (or the partnership of life) will be more
generally accepted. For our purposes, we shall consider that the "essential
elements" are focused on the two bona of the spouses and of children, while the
"essential properties" are focused -- as has been traditional -- on the bona of
fidelity and indissolubility.
-5Matrimonial Law: Consent and impediments. Taken from DCA 5125, with permission from
Prof. Francis Morrisey, O.M.I., JCD.
Notes for personal and private use of Roman Catholic military chaplains.
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a)
Intention against fidelity
Pius XI, in the encyclical Casti connubii, presented a vision of the bona as constitutive
of marriage as a community of life rather than simply as an institution for the procreation
and education of children. While Vatican II did not speak of the goods of marriage as
such, its new understanding of the nature of marriage has changed somewhat their
influence and the way in which they are to be perceived.
Saint Augustine was the first to have called marital fidelity the bonum fidei; it is rooted in
faith in Christ and is closely related to the other bona (cf. Dictionnaire de Droit
canonique, II, coll. 842-848, art. "Biens du mariage" by E. JOMBARD).
Today, the bonum fidei is not seen as something static, merely excluding sexual
relations with another; rather, it is presented as a dynamic reality: besides being the
obligation to render the conjugal debt to one's spouse, it also preserves the friendship
between spouses and is manifested in a constant and generous mutual concern. Thus,
more than just preserving sexual rights and obligations, it denotes total mutual
dedication: it is the sustaining element of marriage and the means by which it comes to
completion (cf. T. DOYLE, loc. cit., p. 9; see also two recent Rotal decisions on this
theme c. BURKE, October 25, 1990 and October 25, 1990, in M.E., 116(1991), pp. 565574, 575-581: "an intention to commit adultery does not prove exclusion of the bonum
fidei").
Fidelity gradually came to be considered as a complex of obligations arising from the
right to fidelity exchanged in marital consent.
What became essential was the perpetual and exclusive right over the body.
Since Vatican II, the community of life is directly related to the bodily and spiritual union
of persons, and thus perfects the bonum fidei.
The jurisprudence before the Council identified the unity of marriage (as an essential
property) and the bonum fidei. After the 1917 Code was promulgated, it soon became
standard practice to state that the bonum fidei was excluded only where the unity of
marriage was excluded, or where the contractant gave the right to the body
simultaneously to the spouse and to others (cf. the encapsulated jurisprudence in
S.R.R. Dec., c. WYNEN, 39(1947), p. 589 (December 18, 1947).
-6Matrimonial Law: Consent and impediments. Taken from DCA 5125, with permission from
Prof. Francis Morrisey, O.M.I., JCD.
Notes for personal and private use of Roman Catholic military chaplains.
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This interpretation in practice, implied that only a form of polygamy could lead to the
exclusion of the bonum fidei; thus, the application was limited. Thus the affirmative
decisions before the Council, in practice, were limited to those instances where a
polygamous intent was evident: c. GRAZIOLI, February 23, 1939; c. FELICI, January
24, 1951; c. ROGERS, December 20, 1965.
However, another group of rotal decisions considered the bonum fidei to consist in the
reservation of the right to commit adultery (cf. WYNEN, June 17, 1950; c. FIDECICCHI,
November 24, 1953).
A decision of October 30, 1950, c. MATTIOLI, outlined the various ways in which
the bonum fidei can be excluded:
- by a limitation contrary to fidelity
- by an intention to bind oneself restrictively, i.e., not generally as it should be
- by making a positive agreement with a third party to have sexual relations
- by reserving to oneself the right not to observe fidelity.
Therefore, the bonum fidei can be excluded directly by refusing to assume the
obligation of fidelity, and indirectly by denying the unity of marriage.
After De Jorio's decision (while Vatican II was in progress), Rotal jurisprudence
progressively recognized that exclusivity in marriage is usually denied, not so
much by giving the right to the body to a third party, but as a limitation of the
spouse's right by reserving to oneself the right to commit adultery (S.R.R. Dec., c.
EWERS, April 6, 1977, in Studia Canonica, 12(1978), p. 268).
-- Canonical principles
The following principles should be kept in mind when assessing the validity of any
marriage under the heading of the bonum fidei:
1. The bonum fidei is one of the juridically essential elements of Christian marriage,
without which marriage cannot be celebrated validly.
2. The bonum fidei pertains to the exclusivity of the marital relationship, and by
implication also to the unity of Christian marriage.
3. The bonum fidei is closely linked to the bonum coniugum, for it is one of the
sustaining elements of marriage.
-7Matrimonial Law: Consent and impediments. Taken from DCA 5125, with permission from
Prof. Francis Morrisey, O.M.I., JCD.
Notes for personal and private use of Roman Catholic military chaplains.
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4. As an obligation, the bonum fidei is equally binding on both spouses, and as a
corresponding right it does not permit of any limitation of time or persons.
5. Prevailing social or cultural attitudes can so influence an individual that that person
becomes incapable of including the bonum fidei in marital consent. In such a case, a
strongly-held but erroneous opinion of the nature of Christian marriage can lead to the
non-assumption of the obligation of fidelity and the concomitant non-granting of the
spouse's right to exclusivity. (Might this be non-inclusion?).
6. Simulation of the bonum fidei can also arise from the conscious exclusion of the
obligation and the spouse's concomitant right, either at the time of consent or by an
earlier and unrevoked intention.
7. Frequent infringements of the bonum fidei during marriage are not per se indicative
of simulation, but they create a vehement presumption thereof (sometimes a case of
incapacity to assume the obligation).
For the above, cf. Marc DE MUELENAERE, The Canonical Significance of Marital
Fidelity among the Bantu of South Africa, Ottawa, Saint Paul University, 1985, xv-276p.
See also, S.R.R. Dec., c. PARISELLA, October 15, 1981, in M.E., 109(1984), pp. 224230.
-- Elements of proof
As in all cases of simulation, the court must determine:
- the reason why fidelity was excluded
- the reason why the person entered into marriage in spite of the contrary
intention.
While the declarations of the parties are significant in such cases, the proof
should centre on the causes of simulation.
If the person is continually unfaithful, then there might be a presumption that we
would be dealing with an incapacity to assume the obligation of fidelity, rather
than with a lack of will in such matters.
-8Matrimonial Law: Consent and impediments. Taken from DCA 5125, with permission from
Prof. Francis Morrisey, O.M.I., JCD.
Notes for personal and private use of Roman Catholic military chaplains.
Any reproduction is forbidden without the express permission of the author.
c)
Intention against indissolubility
-- Canonical principles
The indissolubility of marriage is an essential property of marriage; it necessarily
enters into the object of consent; without this property there is no marriage.
Indissolubility can be excluded from marriage in two ways:
1) If the spouse who knows the true doctrine on marriage enters into it with the
understanding that the right of dissolving the bond and obtaining freedom exists.
2) If the spouse forms a personal doctrine on marriage, without adverting to the
fact that this is contrary to the Church's teaching, and this personal doctrine does
not contain any notion of indissolubility; the spouse intends to celebrate
marriage according to this understanding.
It is sometimes difficult to distinguish between a doctrinal error on indissolubility
and a positive act of the will whereby perpetuity is rejected.
-- The jurisprudence
1) In a decision c. BEJAN (in Eph. Iuris Canonici, 26(1970), p. 192), it is stated that the
prevalent intention no longer may be said to be to contract marriage as God, as Christ,
or the Church intend it to be, but seems to be to follow a social rule established in the
place.
2) A person may consider marriage simply as an institution of the positive law; an error
regarding indissolubility constitutes a presumption that subsequently there was a
positive act of the will excluding it from consent (c. EWERS, May 18, 1968, in M.E.,
94(1969), p. 403.
3) The greater the acceptance and promotion of the error regarding the dissolubility of
marriage, the stronger the presumption in favour of the exclusion of an essential
property, (c. POMPEDDA, November 13, 1969, in Eph. Iuris Canonici, 26(1970), p.
185).
-9Matrimonial Law: Consent and impediments. Taken from DCA 5125, with permission from
Prof. Francis Morrisey, O.M.I., JCD.
Notes for personal and private use of Roman Catholic military chaplains.
Any reproduction is forbidden without the express permission of the author.
4) A person may simply follow the social rule established in the place, by taking divorce
as a freedom to marry; the act of the will almost becomes a condition in such instances
(c. PARISELLA, November 13, 1969, in Eph. I.C., 26(1970), p. 185).
5) The presumption in favour of simulation is stronger in a person who professes error
while knowing truth (c. DE JORIO, February 26, 1969).
6) The presumption exists in the person who adheres to Protestantism and who
professes a philosophy contrary to indissolubility (c. MALASA, July 16, 1969).
7) The presumption also exists in the atheist who is deeply influenced by the theories of
laicisism and liberalism against indissolubility (c. EWERS, March 29, 1969).
8) For an illustration of the application of these principles, see S.R.R. Dec., c.
STANKIEWICZ, April 22, 1980, in M.E., 106(1981), pp. 50-60; c. FERRARO, February
24, 1981, in M.E., 106(1981), pp. 303-313; c. GIANNECCHINI, November 19, 1993, in
M.E., 119(1994), pp. 477-492.
-- Evidence to be sought for in such cases
As in all cases of simulation, it is important to determine the reasons for the
simulation. Among the most common reasons are:
- the uncertainty of mutual love
- the fear of eventual incompatibility.
If the case is concerned with a mentality more than with an explicit act, then the
court will examine:
- the educational background
- the religious beliefs of the person
- the family attitudes and history (are other members of the family divorced, and
what is the attitude towards them?).
-10Matrimonial Law: Consent and impediments. Taken from DCA 5125, with permission from
Prof. Francis Morrisey, O.M.I., JCD.
Notes for personal and private use of Roman Catholic military chaplains.
Any reproduction is forbidden without the express permission of the author.
The statements of the parties are particularly important in all cases of simulation
because we are dealing with internal realities; however, they do not constitute full proof.
Personally, I feel that this ground is much more prevalent in North America today
than many of the other grounds. While the Rota presumes that it exists in
persons who are not Catholics, we must recognize that Catholics are not immune
either from the social attitudes that are prevalent in the media and in society.
d)
Intention against children
While canonical tradition has consistently spoken of an intention "contra bonum
prolis", we must recognize that there are two distinct aspects found under this
heading, either of which would be sufficient to prevent a marriage from being
celebrated validly: an intention against the conjugal act, an intention against the
effect of the conjugal act, i.e., offspring.
-- Canonical principles
1)
The right to the conjugal act
An essential element of marriage is the performing of the conjugal act, at least
generally speaking. If the spouses, at the time of the wedding, or if one of them,
refuse(s) the conjugal act, or limits its use, then an essential element of marriage
is limited, and this invalidates the contract.
It can happen that a spouse, even though the right to the conjugal act was given at the
time of marriage, out of human frailty decides to refuse the use of the right. This does
not change the existence of the right itself, but must be considered according to the
principles of moral theology.
The right to the conjugal act is a moral right which presupposes right reason
("responsible parenthood"). Consequently, it would not always be reasonable to
demand the use of the right. If the use were refused at such times, this would not be
considered a refusal.
The 1983 Code of Canon Law has dropped the expression "omne ius ad coniugale
actum", but the phrase is assumed into the more general term of "essential element" of
marriage.
-11Matrimonial Law: Consent and impediments. Taken from DCA 5125, with permission from
Prof. Francis Morrisey, O.M.I., JCD.
Notes for personal and private use of Roman Catholic military chaplains.
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The act must be performed connaturally, that is without any artificial alteration. The
intention before the wedding of performing only incomplete physical intercourse, or of
having intercourse that is vitiated by unnatural means (either physical or chemical)
would be a denial of the due right to the conjugal act.
2) The right to offspring
The right to connatural intercourse includes the right to its natural effect which is
offspring. This implies two elements:
- the generation of the child
- the education of the child.
The exclusion of one or both of these elements would invalidate marriage.
The Church does not teach that parents have a right to children as such; they have a
right to have a child that has been conceived. Children are a gift (donum) of the Lord.
Consequently, if a person had the intention to terminate any pregnancy that would
occur, and such intention existed at the time of the wedding, then the contract would be
invalid. The fact of having an abortion, as such, does not constitute proof of nullity;
however, it can be a most significant element of proof, provided it can be shown that the
intention to proceed in this way existed before the wedding.
While the jurisprudence is unanimous as regards the right to offspring once conceived,
there is no strong uniform tendency regarding the right to the education of such
offspring. However, certain examples come to mind which could (should - ?) be
considered: a parent who before the marriage flatly refuses to allow for the Catholic
education of the children. It often happens that in more extreme cases we will be
dealing with an incapacity to assume the essential right and obligation of providing for
the children.
-- Elements of proof
It generally occurs today that we have a "contraceptive mentality" (which is
similar in its effects on the canonical level to the divorce mentality). Such a
mentality has become more prevalent with the widespread use of "the pill". If a
couple agreed before the marriage that intercourse could take place only if the
-12Matrimonial Law: Consent and impediments. Taken from DCA 5125, with permission from
Prof. Francis Morrisey, O.M.I., JCD.
Notes for personal and private use of Roman Catholic military chaplains.
Any reproduction is forbidden without the express permission of the author.
wife were "on the pill", then the marriage is invalid, because the intention was not
to give a right that was uninterrupted in space.
A minimal test in such instances is to determine whether the spouses were so
intent against having a child that if one were to be conceived before the
"appropriate" time, then there would be an abortion. (Such a minimum could be
used in instances of marriage preparation -- although it must be admitted that
working on a minimum level is not ideal pastorally).
In cases where an intention "contra bonum prolis" is alleged, the life of the spouses
takes on special significance, because the way in which the right was given will help
determine whether it was truly assumed at the time of the wedding.
e)
Intention against
community of life
the
bonum
coniugum
and
the
The Church courts are only beginning to make use of this new element.
Therefore, there is not, to date, definitive jurisprudence in this matter.
As we examine the marriage that was lived out ("matrimonium in facto esse"), it
becomes evident at times that we are dealing with a continuum; what happens
afterwards corresponds to what was intended beforehand in many instances.
2.
Conditional consent (c. 1102)
"§1. Marriage cannot be validly contracted subject to a condition
concerning the future.
"§2. Marriage entered into subject to a condition concerning the past
or the present is valid or not, according as whatever is the basis of
the condition exists or not.
"§3. However, a condition as mentioned in §2 may not lawfully be
placed except with the written permission of the local Ordinary" (c.
1102).
-13Matrimonial Law: Consent and impediments. Taken from DCA 5125, with permission from
Prof. Francis Morrisey, O.M.I., JCD.
Notes for personal and private use of Roman Catholic military chaplains.
Any reproduction is forbidden without the express permission of the author.
A condition is a circumstance attached to an act from which the act itself
depends. There are many types of conditions: those which affect the past,
present or future, those which are possible or impossible, those which are
necessary or contingent, honest or dishonest, etc.
Since a Rotal decision of June 13, 1924, it has been universally recognized that
the three following circumstances must coexist for there to be conditional
consent:
-
there must be a positive act of the will, either at the moment of the contract
(actual), or beforehand (virtual) -- provided it still exists. A person need not
be aware of the juridical consequences of the condition for it to apply.
-
the condition must have been placed freely.
-
it must have been present (i.e., not revoked) at the time of the consent.
a.
Canonical principles on conditional consent
§1 For examples of such conditions: if the sun rises tomorrow, if winter follows autumn,
etc. The 1983 Code has simplified the whole question of conditions: no future condition
may be recognized. Thus, if it can be shown that such a future condition was placed
(i.e., on condition you will never smoke again), then the marriage is invalid. Naturally,
the existence of such a condition would have to be demonstrated.
§2 Regarding past or present conditions, the validity of the marriage will depend on the
(non-)existence of the condition.
§3 To avoid difficulties in the future, par. 3 of the canon now requires that such
conditions be expressed beforehand and that the written permission of the local
Ordinary be secured; such permission does not affect the validity of the marriage,
however.
-14Matrimonial Law: Consent and impediments. Taken from DCA 5125, with permission from
Prof. Francis Morrisey, O.M.I., JCD.
Notes for personal and private use of Roman Catholic military chaplains.
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b.
-
Elements of proof
the conduct of the person before, during and after the marriage;
statements made when there was no question of a separation ("tempore non
suspecto");
the reaction of the person upon discovery of the existence (or non-existence) of
the condition.
Examples of conditions could be:
-
limit of age
legitimacy of birth
virginity of the spouse
capacity to beget children
immunity from venereal disease or from Aids
probity of life
sincere conversion to the catholic faith, etc.
At times, it is rather difficult to determine whether we are dealing with a case of error (or
perhaps fraud) or with a case of conditional consent. If the prevailing weight of
evidence is on the side of the intention, then it is customary to accept the case under a
defect of the will, rather than under a defect of knowledge.
It could be noted that the Oriental Code, in canon 826, simply states: "Marriage
based on a condition cannot be validly celebrated." This is quite different from
the Latin legislation.
3.
Force and fear (c. 1103)
"A marriage is invalid which was entered into by reason of force or of
grave fear imposed from without, even if not purposely, from which
the person has no escape other than by choosing marriage" (c.
1103).
a.
Canonical principles
The first element which is considered is cases of force and fear is the aversion
which the party feels for the other person. If the other person is the partner, then
practically
-15Matrimonial Law: Consent and impediments. Taken from DCA 5125, with permission from
Prof. Francis Morrisey, O.M.I., JCD.
Notes for personal and private use of Roman Catholic military chaplains.
Any reproduction is forbidden without the express permission of the author.
speaking, aversion is identified with a lack of love.
However, because the new Code has added the words "even when inflicted
unintentionally", it could mean that there is aversion towards someone with
whom a person is living (v.g., an incestuous father), and even though the disliked
person does not want the marriage to take place (because, for instance, he would
lose the daughter), the force arising from the aversion could be such that the
person cannot escape it except through entering into marriage.
The second element to be considered is the threat of an evil if the marriage does
not take place. This evil is to be considered not objectively, but subjectively, as it
is perceived by the person in question. Therefore, it is immaterial to the case
whether the agent links it or not to the future marriage.
b.
Conditions for grave fear
-
certainty of the threat: because of the authority of the person who is
threatening, or the probability that the threats will be fulfilled;
-
gravity of the evil: the evil must be either grave in itself or perceived as such.
The party must be in a position not to resist easily, because of timidity, absence
of help, exceedingly great shame, etc.
-
an extrinsic and free cause: if the fear is caused only from within, then we are
dealing more with a lack of internal freedom (lack of due discretion) rather than
with force and fear. The fear could be the threat of blackmail or the threat of
some other evil (e.g., I will commit suicide unless your marry me; I'll destroy your
reputation, etc.).
-
unjust: the 1917 Code specifically mentioned an unjust fear, but the Commission
decided that it was unnecessary to keep the word because any fear inducing
marriage under threats is unjust. Threats would not be unjust if they consisted in
a criminal suit in civil court, provided that this offers a reasonable option such as:
a deserved punishment, or marriage.
In practice, the threats are deemed to be unjust whenever marriage is imposed
without any love on the part of the party involved.
-16Matrimonial Law: Consent and impediments. Taken from DCA 5125, with permission from
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-
fatality of the marriage: if the only way to escape the fear is to contract
marriage (either in reality or in the mind of the person), then the last condition
prescribed by the law is met.
c.
Proof of fear
-
It must be shown that the person was truly afraid of the person causing the
fear, because of the office and authority that one has over the other.
Examples of such are: domineering parents, ambitious mothers; a fiancée
who threatens her fiancé, and vice versa, especially after having had illicit
relations.
-
It must also shown that there is indeed evidence of fear. A Rotal decision of
March 22, 1957, c. STAFFA stated that the strongest sign of fear is the fact that a
party has overcome an aversion for the other one in order to escape from the
impending evil.
d.
Applicability of the canon
The Commission for Interpretation, in a decision dated April 23, 1987, (A.A.S.,
79(1987), p. 1132) stated that canon 1103 is also applicable to non-Catholics. For
this reason, it can be considered to be an expression of the natural law, and not
simply a canon of ecclesiastical law that would bind only Catholics (c. 11).
CONCLUSION
The three canons on lack of will have exerted a strong influence on the jurisprudence of
the local courts. While there are a certain number of changes in canons 1101-1103, in
practice the canonical doctrine remains relatively unchanged.
Under simulation, the major change consists in speaking of "the essential elements of
marriage", without referring directly to the conjugal act itself, but including the good of
the spouses.
Under conditional consent, the major change consists in the fact that future conditions
are no longer allowed, and that written permission has to be given to contract under a
past or present condition.
-17Matrimonial Law: Consent and impediments. Taken from DCA 5125, with permission from
Prof. Francis Morrisey, O.M.I., JCD.
Notes for personal and private use of Roman Catholic military chaplains.
Any reproduction is forbidden without the express permission of the author.
For force and fear, the new canon recognizes the fact that the force might not be
leading to marriage, but is such that the only escape from it is to enter into marriage.
There remain simply a few canons to consider now; these concern the actual
manifestation of the consent, and are not as significant as were the previous ones.
--VI.
THE CELEBRATION OF CONSENT (cc. 1104-1107)
Canons 1104-1107 express general conditions regarding the manner of expressing
consent. Because they are never or rarely seen we have omitted from this study canons
1105 and 1106.
1.
The presence of the spouses (c. 1104)
"§1. To contract marriage validly it is necessary that the contracting
parties be present together, either personally or by proxy.
"§2. The spouses are to express their matrimonial consent in words;
if, however, they cannot speak, then by equivalent signs" (c. 1104).
In North America, it seems that marriage cannot be celebrated civilly by proxy. Thus,
the canon which allows a proxy to represent one of the parties would be applicable only
in the canonical sphere, something that is quite rare.
According to canon 1108, §2, the person "assisting" at marriage is to ask for and
receive consent in the name of the Church.
Thus, the parties would have to express their consent at the request of the official
witness.
While certain words are traditional, they are not prescribed for the validity of the
consent. What is required is that the response be unequivocal (i.e., "I guess so" - would
not be satisfactory).
-18Matrimonial Law: Consent and impediments. Taken from DCA 5125, with permission from
Prof. Francis Morrisey, O.M.I., JCD.
Notes for personal and private use of Roman Catholic military chaplains.
Any reproduction is forbidden without the express permission of the author.
Along with the witnesses (unless the extraordinary form is used -- c. 1116), five persons
would have to be present for the celebration of a marriage: the two parties, the official
witness, the two other witnesses.
4.
Presumption of lasting consent (c. 1107)
"Even if a marriage has been entered into invalidly by reason of an
impediment or defect of form, the consent given is presumed to
persist until its withdrawal has been established" (c. 1107).
Canon 1107 speaks of marriages that would be invalid because of the existence of an
impediment, or because of a defect of form. In view of the decision of the Commission
for Interpretation, June 26, 1984, there is a difference between “defect” of form and
“absence” of form.
The canon does not speak of marriage that is null because of a defect of consent,
because this would be a contradiction: when consent is lacking it is presumed to
continue!
The importance of canon 1107 lies in the fact that the presumption allows an authorized
person to proceed with a sanatio in those cases where the consent cannot be renewed
because of the refusal of one or both parties to do so.
The canon also provides for peace of mind when people are worried about previous
situations. However, the presumption does not make things a reality simply by the fact
of being a presumption.
Canon 1093 in the 1917 Code had limited the application of the presumption to cases
where there was an impediment. The new canon extends the scope somewhat.
CONCLUSION
Canons 1104-1107 spell out general principles; canon 1104 calls for the presence of the
spouses -- a marriage cannot be celebrated in absentia.
Canon 1105 provides for the celebration of marriage by proxy, something that is rarely
done.
-19Matrimonial Law: Consent and impediments. Taken from DCA 5125, with permission from
Prof. Francis Morrisey, O.M.I., JCD.
Notes for personal and private use of Roman Catholic military chaplains.
Any reproduction is forbidden without the express permission of the author.
Canon 1106 provides a flexible norm when the parties or the official witness or both do
not understand the same languages.
Canon 1107 provides a working presumption that, for all practical purposes, is applied
only in cases of a sanatio in radice.
GENERAL CONCLUSION
Our study of the canons on the nature of marriage and on matrimonial consent has
shown clearly how the Church has evolved in its understanding of the significance of
marriage in its life, how it has spared no effort to defend and uphold the sanctity of
marriage, and how the new norms, while reflecting the conciliar approach, have
remained faithful to the centuries-old tradition of the Church.
If the canons are applied intelligently they have many positive values:
-
they help prepare persons for marriage
they provide a clear listing of those instances when a wedding has not produced
a marriage
they offer a number of presumptions which enable church officials to consider
practical situations.
To understand the 1983 norms, we must understand the theology underlying them.
When St. Paul spoke of a "great sacrament", he was referring to that sacrament
whereby the domestic church is established and the renewal of the People of God is
provided for (see Pope John Paul II, Letter to Families, February 2, 1994, No. 19). This
is a sacred trust given to the Church and its leaders, one that the Church has suffered
much to protect and enhance.
A tribunal official who would not consider seriously the import of the canons would not
be doing justice to his office, nor would the doctrine of the Church be upheld.
However, it is evident that there are still many unanswered questions that open the door
to future reflexion, prayer and study. It is hoped that in the years ahead the courts will
reach a greater unanimity in the understanding and application of the canons, while at
the same time extending a true pastoral hand to those who come seeking its services.
-20Matrimonial Law: Consent and impediments. Taken from DCA 5125, with permission from
Prof. Francis Morrisey, O.M.I., JCD.
Notes for personal and private use of Roman Catholic military chaplains.
Any reproduction is forbidden without the express permission of the author.
One of the responsibilities of any judge would be to remain abreast of developments in
the area of jurisprudence so that new solutions could be applied to old problems as we
continue to fathom the richness of the new law.
The canons are an "instrument of grace" to use Paul VI's words, and should be used to
promote the "salus animarum" which is the "suprema lex".
General bibliography:
ARENA, A.M., "The Jurisprudence of the Sacred Roman Rota: Its Development and
Direction after the Second Vatican Council", in Studia Canonica, 12(1978), pp. 265-293.
BERNHARD, J., "L'exclusion de l'indissolubilité du mariage dans la pratique canonique
de l'Eglise", in Revue de Droit canonique, 27(1977), pp. 159-173.
BROWN, R., "Simulation vs Lack of Commitment", in Studia Canonia, 14(1980), pp.
335-345. See also the other studies of Msgr. Brown in Studia Canonica, 9(1975), pp.
249-266; 10(1976), pp. 235-249, 256-260; 35(2001), pp. 151-174.
-----, "Non-Inclusion: a Form of Simulation", in CLSA, Proceedings, 41(1979), pp. 1-11
(cf. also CLSGBI, Newsletter, No. 43, 1979, pp. 28-44).
CANDELIER, G., “La simulation d’aprs les sentences de Mgr José Maria Serrano
Ruiz”, in Studia canonica, 31(1997), pp. 373-402.
-----, “Le bonum prolis: doctrine et évolution de la jurisprudence”, in Studia canonica,
34(2000), pp. 197-246.
DEL AMO, L., "Mentalidad divorcista y nulidad del matrimonio", in Ius Canonicum,
41(1980), pp. 255-271.
DEWHIRST, A., "Intention Against the Sacramental Dignity of Marriage", in CLSGBI,
Newsletter, No. 89, 1992, pp. 66-67 (a summary).
DOYLE, T., "A New Look at the Bonum Fidei", in Studia Canonica, 12(1978), pp. 5-40.
(Cf. also his JCD dissertation).
-21Matrimonial Law: Consent and impediments. Taken from DCA 5125, with permission from
Prof. Francis Morrisey, O.M.I., JCD.
Notes for personal and private use of Roman Catholic military chaplains.
Any reproduction is forbidden without the express permission of the author.
FELLHAUER, D., "The Exclusion of Indissolubility:
Jurisprudence", in Studia Canonica, 9(1975), p. 105-133.
Old Principles and New
GRESSIER, J., “Le consentement est un acte positif de volonté”, in Studia canonica,
34(2000), pp. 355-400.
GROCHOLEWSKI, Z., "Relatio inter errorem et positivum indissolubilitatis exclusionem
in nuptiis contrahendis", in Periodica, 69(1980), pp. 569-602.
HUMPHREYS, J., "Lack of Commitment in Consent", in Studia Canonica, 10(1976), pp.
345-362.
JOHNSON, J.G., "Total Simulation in Recent Rotal Jurisprudence", in Studia canonica,
24(1990), pp. 383-425.
KITCHEN, P., "Matrimonial Intention and Simulation", in Studia canonica, 28(1994), pp.
347-406.
MENDONÇA, A., “Exclusion of the Sacramentality of Marriage: Recent Trends in Rotal
Jurisprudence”, in Studia canonica, 31(1997), pp. 5-48.
PICARD, N., "Exclusion de la procréation selon le droit matrimonial ecclésial", in Studia
Canonica, 10(1976), pp. 37-74.
PROVOST, J.H., and E. PFNAUSCH and J. BEAL, “Simulated Consent. A New Way of
Looking at an Old Way of Thinking”, in The Jurist, 55(1995), pp. 688-720. See also pp.
721-739; 740-744; 745-793 for other articles on the same theme.
ROBITAILLE, l., "Conditioned Consent: Natural Law and Human Positive Law", in
Studia canonica, 26(1992), pp. 75-110.
----, "Simulation, Error Determining the Will, or Lack of Due Discretion? A Case Study",
in Studia canonica, 29(1995), pp. 397-432.
SANSON, R., "Implicit Simulation: Grounds for Annulment?", in The Jurist, 48(1988),
pp. 747-770.
-22Matrimonial Law: Consent and impediments. Taken from DCA 5125, with permission from
Prof. Francis Morrisey, O.M.I., JCD.
Notes for personal and private use of Roman Catholic military chaplains.
Any reproduction is forbidden without the express permission of the author.
SERRANO-RUIZ, J.M., "What About the Famous Positive Act of the Will", in R. TORFS,
ed., A Swing of the Pendulum. Canon Law in Modern Society, Addendum, Leuven,
Katholieke Universiteit Leuven, Uitgeveru Peeters, 1996, pp. 21-30.
STANKIEWICZ, A., “Concretizzazione del fatto simulatorio nel ‘positivus voluntatis
actus’”, in Periodica, 87(1998), pp. 257-286.
-----, “La simulazione del consenso per l’esclusione dell’indissolubilit”, in Ius Ecclesiae,
13(2001), pp. 653-671.
WEGAN, M., "La distinction 'ius et usus iuris'dans la jurisprudence récente de la Rote",
in Revue de droit canonique, 29(1979), pp. 92-113.
WRENN, L., "A New Condition Limiting Marriage", in The Jurist, 34(1974), pp. 292-315.
-----, "Urban Navarrete, S.J., and the Response of the Code Commission on Force and
Fear", in The Jurist, 51(1991), pp. 119-137.