We get a lot of questions at work from Catholics who got
married outside the Church and want to know if they need an annulment. The
answer is that they do.
Catholics are bound to observe the Catholic form of marriage or to get a
dispensation from it in order for their marriages to be valid. For a Catholic
to "marry outside the Church" without a dispensation thus results in
an invalid marriage, and for such a person to remarry, he needs the Church to
look at his first marriage and officially establish that it was invalid and
that he is thus free to marry someone else.
This process is commonly known as "getting an annulment." The fact
that the annulment is an open-and-shut thing in this case doesn’t mean that the
person doesn’t need one. The Church needs to look at anything that appears to
be a marriage to see if it was before it can give a person permission to marry
But what if that doesn’t happen?
Sometimes we get people who say, "Well, our priest said that we didn’t
need an annulment because we were married outside the Church, and he went ahead
and married us anyway. Does that mean our current marriage is invalid?"
Fortunately, no it doesn’t.
The thing that determine the validity of the marriage in this case is whether
the parties were genuinely free to marry each other. If they were bound to
prior partners then they were not free and the marriage is invalid. But if they
were free then, even though they didn’t get the annulment they should have
gotten, the marriage will be valid.
Here’s how the canon law on that works: The Code of Canon Law provides as
§1. A person bound by the bond of a prior marriage, even if it was not
consummated, invalidly attempts marriage.
§2. Even if the prior marriage is invalid or dissolved for any reason, it is
not on that account permitted to
contract another before the nullity. . . of the prior marriage is
established legitimately and certainly.
The first part of this canon deals with those who are bound
by a prior bond and says that they invalidly attempt marriage.
The second part deals with those who are not bound to a prior partner, and it
says they are not permitted to attempt marriage until they receive an
But permission only addresses the subject of liceity (conformity with the law),
not validity (objective reality). You need an annulment to get permission to
marry someone else, but if you don’t have permission, that doesn’t mean that
the new union is invalid. It means that it was illicit (not conducted in accord
with the law), but it can still be valid (objectively real).
The situation is the same as it would be if a priest celebrating the Mass fails
to say a required preface to the Eucharistic prayer. He doesn’t have permission
to omit that, and as a result his celebration of the Mass will be out of
conformity with the law and thus illicit. But the consecration of the
elements will still be valid because it isn’t the preface but the words
of consecration that bring about the consecration.
In the same way, in celebrating the sacrament of holy matrimony, under current
law it isn’t the parties having of an annulment that fundamentally determines
their ability to marry each other. It’s their objective freedom to marry.
Thus the green CLSA commentary on the Code of Canon Law notes:
If a Catholic [whose previous marriage was null] re-marries according to the canonical form after a divorce but before a declaration of nullity is granted, the marriage is illicit but valid and need not be convalidated after the previous marriage is declared null [p. 1287].
So in cases where a priest erroneously told a couple they didn’t need an
annulment and went ahead and married the parties, they will be validly married
as long as they had the freedom to marry each other.