Reflections on Matrimonial Jurisprudence

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

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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

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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