Category: Canon Law

A reader writes:

Thanks for your blog, I enjoy it a lot — and I’m a So. Baptist!

A question I’ve wondered about:  Are pronouncements of annulment infallible (perhaps "inherently efficacious" would be a better term) regardless of the truthfulness of the testimony the judgement is based on?

For example, a couple divorces and one spouse files for and recieves an annulment based on objectively false testimony.  (E.g., he claims he was drunkor under duress.)  Leaving aside the one partner’s grave sin of perjury, would the other spouse be free to remarry assuming she knows that the judgement of the court is in error?

We’d have to distinguish at this point between legally free and actually free.

Legally, if the marriage was annuled by the proper authority then the parties are legally free to marry someone else, assuming there are no other impediments affecting the situation (e.g., if the partner wishes to marry someone who is a priest or is under age or is another woman then that’s a no-go because the other party is not legally free to marry her).

In terms of actual freedom, the situation is more complex. At issue is whether the tribunal’s judgment was erroneous. For this to be the case, the following conditions would need to obtain:

1. Some of the evidence presented to the tribunal was fraudulent,
2. The tribunal’s decision was based on this evidence (rather than other, non-fraudulent evidence they may also have), and
3. There are no other solid grounds for the marriage to be null.

In your example, you have stipulated that condition (1) applies: The husband lied in presenting some of the evidence to the tribunal. But presumably not all of the evidence before the tribunal is fraudulent. If that is the case then the decision to annul might have been based on non-fraudulent evidence and thus be correct, in which case condition (2) does not apply.

Further, even if the tribunal did base its judgment on the fraudulent evidence such that without this evidence it would not have issued a decree of nullity then there could still be other factors rendering the marriage null that never came to the tribunal’s attention. If that’s the case then condition (3) does not apply. It thus could be that the tribunal’s decision to annul was correct in spite of the fact that it was based on fraudulent evidence.

If the decision was correct–either because it was based on non-fraudulent evidence or because there was a hidden reason for nullity that never came to the tribunal’s attention–then the woman is actually free to marry someone else as well as legally free.

What she is morally free to do depends on her awareness of her actual freedom. If she is actually free but has no reason to believe that she is free and simply thinks that she got an annulment because her ex-husband lied then she is not morally free to marry a new person. She is actually free to do so because she is not really married to her first husband, but he is not morally free to act on this because as far as she knows, the two of them are hitched.

On the other hand, it could happen that she is actually free to marry and she knows it even though she also knows that her ex lied to the tribunal. It could be, for example, that she is aware of the fact that either conditions (2) or (3) do not apply. For example, she might be aware of a hidden but unprovable ground for nullity that was never submitted to the tribunal. (Let’s also suppose that she is a qualified canonist so that she knows with great thoroughness what are and aren’t grounds for nullity.) In that case she is legally free to marry (because she has an annulment) and she is actually free (because the marriage really was null) and she knows it, making her morally free.

Such cases would likely be very rare, and no one in such a situation should rapidly conclude that they were morally free to marry. (The chances of self-deception on the question of whether one is actually free are quite substantial.) But it is possible in principle.

However, this is not because the tribunal has the ability to dissolve the marriage.

I guess the answer would depend on if "binding and loosing" authority is exercised, or if the court is claiming only to recognize that a marriage never existed.

It’s the latter. Valid, consummated marriages between baptized people can never be dissolved by anything except death, and so tribunals can’t dissolve them. They can, however, issue findings of fact about whether such a marriage ever existed.

Such findings are not protected by infallibility. (They could be if the pope were to intervene and infallibly define the status of a particular marriage, but that never happens.) The law is written  to err on the side of caution in these matters (thus whenever a tribunal issues a finding of nullity then it is automatically appealed for a second examination). Error is possible, but the system is designed to produce more false positives (i.e., findings that a couple is validly married when they are not) than false negatives (i.e., findings that a couple is not validly married when they are).

PS — The question above is purely theoretical.  My wife and I are happily married lifelong Baptists.  I just greatly appreciate the intellectual rigor RC’s bring to moral questions.

Thanks for asking! Hope this helps!

A reader writes:

Thanks for your blog, I enjoy it a lot — and I’m a So. Baptist!

A question I’ve wondered about:  Are pronouncements of annulment infallible (perhaps "inherently efficacious" would be a better term) regardless of the truthfulness of the testimony the judgement is based on?

For example, a couple divorces and one spouse files for and recieves an annulment based on objectively false testimony.  (E.g., he claims he was drunkor under duress.)  Leaving aside the one partner’s grave sin of perjury, would the other spouse be free to remarry assuming she knows that the judgement of the court is in error?

We’d have to distinguish at this point between legally free and actually free.

Legally, if the marriage was annuled by the proper authority then the parties are legally free to marry someone else, assuming there are no other impediments affecting the situation (e.g., if the partner wishes to marry someone who is a priest or is under age or is another woman then that’s a no-go because the other party is not legally free to marry her).

In terms of actual freedom, the situation is more complex. At issue is whether the tribunal’s judgment was erroneous. For this to be the case, the following conditions would need to obtain:

1. Some of the evidence presented to the tribunal was fraudulent,
2. The tribunal’s decision was based on this evidence (rather than other, non-fraudulent evidence they may also have), and
3. There are no other solid grounds for the marriage to be null.

In your example, you have stipulated that condition (1) applies: The husband lied in presenting some of the evidence to the tribunal. But presumably not all of the evidence before the tribunal is fraudulent. If that is the case then the decision to annul might have been based on non-fraudulent evidence and thus be correct, in which case condition (2) does not apply.

Further, even if the tribunal did base its judgment on the fraudulent evidence such that without this evidence it would not have issued a decree of nullity then there could still be other factors rendering the marriage null that never came to the tribunal’s attention. If that’s the case then condition (3) does not apply. It thus could be that the tribunal’s decision to annul was correct in spite of the fact that it was based on fraudulent evidence.

If the decision was correct–either because it was based on non-fraudulent evidence or because there was a hidden reason for nullity that never came to the tribunal’s attention–then the woman is actually free to marry someone else as well as legally free.

What she is morally free to do depends on her awareness of her actual freedom. If she is actually free but has no reason to believe that she is free and simply thinks that she got an annulment because her ex-husband lied then she is not morally free to marry a new person. She is actually free to do so because she is not really married to her first husband, but he is not morally free to act on this because as far as she knows, the two of them are hitched.

On the other hand, it could happen that she is actually free to marry and she knows it even though she also knows that her ex lied to the tribunal. It could be, for example, that she is aware of the fact that either conditions (2) or (3) do not apply. For example, she might be aware of a hidden but unprovable ground for nullity that was never submitted to the tribunal. (Let’s also suppose that she is a qualified canonist so that she knows with great thoroughness what are and aren’t grounds for nullity.) In that case she is legally free to marry (because she has an annulment) and she is actually free (because the marriage really was null) and she knows it, making her morally free.

Such cases would likely be very rare, and no one in such a situation should rapidly conclude that they were morally free to marry. (The chances of self-deception on the question of whether one is actually free are quite substantial.) But it is possible in principle.

However, this is not because the tribunal has the ability to dissolve the marriage.

I guess the answer would depend on if "binding and loosing" authority is exercised, or if the court is claiming only to recognize that a marriage never existed.

It’s the latter. Valid, consummated marriages between baptized people can never be dissolved by anything except death, and so tribunals can’t dissolve them. They can, however, issue findings of fact about whether such a marriage ever existed.

Such findings are not protected by infallibility. (They could be if the pope were to intervene and infallibly define the status of a particular marriage, but that never happens.) The law is written  to err on the side of caution in these matters (thus whenever a tribunal issues a finding of nullity then it is automatically appealed for a second examination). Error is possible, but the system is designed to produce more false positives (i.e., findings that a couple is validly married when they are not) than false negatives (i.e., findings that a couple is not validly married when they are).

PS — The question above is purely theoretical.  My wife and I are happily married lifelong Baptists.  I just greatly appreciate the intellectual rigor RC’s bring to moral questions.

Thanks for asking! Hope this helps!

A reader writes:

My parents were married in the Catholic Church in the 1960s. My father was a baptised Catholic and my mother was a non-Catholic. They remember the parish priest having to obtain a dispensation for their marriage.

A few years ago, my mother became a Catholic. As she was preparing for reception into the Church, research showed that she had not been baptized in the Church of England (as we had always assumed) but ‘dedicated’ in the Salvation Army. Accordingly, she was baptized at the Easter Vigil.

My question relates to their marriage. I have heard that a different kind of dispensation is needed for a Catholic to marry an unbaptized person than to marry a baptized non-Catholic. We don’t know what kind of dispensation the priest obtained in the 1960s.

My question is this: Was their marriage valid? Is it now? If not, what steps would need to be taken? (My father, who currently has some “issues” with the Church would be absolutely furious if asked to go through a convalidation ceremony).

You are correct that a different kind of dispensation is needed. When a Catholic marries a non-Catholic baptized person then a "mixed marriage" dispensation is needed. When a Catholic marries a non-baptized party, however, a "disparity of cult" dispensation is needed.

That being said, there is a good likelihood that the latter dispensation was granted when your parents married back in the sixties. In many dioceses even today it is standard practice to grant a disparity of cult dispensation at the same time as granting a mixed marriage dispensation–precisely in order to take care of situations like this one.

My impression is that this was all the more common back then, when there was a more cautious attitude taken with regard to the validity of individual Protestant baptisms (i.e., there was an acknowledgement that Protestant baptisms were valid in principle but a greater caution about whether the baptism had been validly performed in any particular case).

There is thus a good chance that the diocese issued both dispensations at the time your parents married.

The way to find out is to contact the diocese in which they were married and ask them to look it up. They (or the parish) should have the record.

If it turns out that they did not get both dispensations then the matter could be handled by convalidation or, hypothetically, by a procedure known as radical sanation ("healing from the root"), which would not involve a renewal of consent by your father.

One should not get ahead of oneself, though. The first step for your mom would be to contact the diocese and find out what dispensations were granted.

A reader writes:

I was sitting at a wedding this weekend and the Deacon was talking
about how we get married just as God had ordained with Adam and Eve,
Abraham and Sarah, Isaac and Rebecca, and Mary and Joseph.

Mary and Joseph immediately struck me as odd because, unlike everyone
else, their marriage is distinct from all others in our Catholic
Tradition in that they did NOT have sex.

And then your discussions of impotence and sex (HERE and HERE) came screaming
back to me in that they left the impression with me that in order for
a marriage to be valid, then the husband and wife must be able to as
well as actually share in the marrital act together.

So, I was left wondering… since Mary and Joseph did not share in the
marrital act, is their marriage valid? 

Yes. A valid marriage comes into existence upon the valid exchange of matrimonial consent between two parties that are free to marry each other and not otherwise impeded.

If the parties are not both baptized (as was the case with Mary and Joseph) then the marriage is a non-sacramental one, but nonetheless valid.

If both parties are baptized then the marriage is a sacramental one.

If the marriage is sacramental and the parties then consummate it, it becomes indissoluble by anything except death. Otherwise, it is at least potentially dissoluble.

Consummation thus changes the status of certain marriages (sacramental ones) but it is not necessary for marriage to be valid. Consequently, it was not necessary for Mary and Joseph’s marriage to be valid.

Could a couple get married
today, always abstain from the marrital act, and still have a valid
marriage? 

Yes. This is known in Church history. It is referred to as "Josephite marriage" after St. Joseph. With a billion Catholics in the world, there are likely a number of such couples out there right now.

If so, then why does impotence really matter? 

Impotence is the inability to perform the marital act. Perpetual and incurable impotence is an impediment to marriage because marriage involves exchanging the right to conjugal relations. Giving valid matrimonial consent means binding oneself to pay the marriage debt if the other party reasonably requests it.

Therefore, if you don’t have the ability to pay the marriage debt then you cannot truthfully promise to render it to another. Consueqently, you cannot give another the right to conjugal relations with you, and thus you cannot exchange valid matrimonial consent.

It is possible, however, to exchange the right to conjugal relations even if neither party plans to exercise that right. To parties can plan never to have conjugal relations and yet exchange the right to do so should one or the other (or both) change their minds.

If Mary and Joseph entered marriage planning on not having conjugal relations then they still granted each other a right even though neither intended to use it.

On the other hand, it may be the case that they planned on having conjugal relations but the intervention of the Holy Spirit in conceiving Jesus before they came together caused them to change their plans.

Couldn’t an
impotent couple marry in the hope – like Abraham and Sarah – that God
will provide in some way?

A couple in which one or both parties was perpetually and incurably impotent cannot marry. However, a couple in which one or both parties are not perpetually impotent (i.e., are sometimes able to pay the marriage debt) or are curably impotent (e.g., via pharmaseuticals or surgery or counselling) can marry.

The case of Abraham and Sarah was different. Abraham and Sarah, though their union was infertile for much of their
marriage, could and did have marital relations. Impotence thus was not
the issue.

Their issue was not impotence (the inability to have sex) but infertility (the inability to have children). The latter is not an impediment to marriage since the parties are still able to pay the marriage debt to each other and so are able to validly exchange consent to marriage.

A reader writes:

I was sitting at a wedding this weekend and the Deacon was talking

about how we get married just as God had ordained with Adam and Eve,

Abraham and Sarah, Isaac and Rebecca, and Mary and Joseph.

Mary and Joseph immediately struck me as odd because, unlike everyone

else, their marriage is distinct from all others in our Catholic

Tradition in that they did NOT have sex.

And then your discussions of impotence and sex (HERE and HERE) came screaming

back to me in that they left the impression with me that in order for

a marriage to be valid, then the husband and wife must be able to as

well as actually share in the marrital act together.

So, I was left wondering… since Mary and Joseph did not share in the

marrital act, is their marriage valid? 

Yes. A valid marriage comes into existence upon the valid exchange of matrimonial consent between two parties that are free to marry each other and not otherwise impeded.

If the parties are not both baptized (as was the case with Mary and Joseph) then the marriage is a non-sacramental one, but nonetheless valid.

If both parties are baptized then the marriage is a sacramental one.

If the marriage is sacramental and the parties then consummate it, it becomes indissoluble by anything except death. Otherwise, it is at least potentially dissoluble.

Consummation thus changes the status of certain marriages (sacramental ones) but it is not necessary for marriage to be valid. Consequently, it was not necessary for Mary and Joseph’s marriage to be valid.

Could a couple get married

today, always abstain from the marrital act, and still have a valid

marriage? 

Yes. This is known in Church history. It is referred to as "Josephite marriage" after St. Joseph. With a billion Catholics in the world, there are likely a number of such couples out there right now.

If so, then why does impotence really matter? 

Impotence is the inability to perform the marital act. Perpetual and incurable impotence is an impediment to marriage because marriage involves exchanging the right to conjugal relations. Giving valid matrimonial consent means binding oneself to pay the marriage debt if the other party reasonably requests it.

Therefore, if you don’t have the ability to pay the marriage debt then you cannot truthfully promise to render it to another. Consueqently, you cannot give another the right to conjugal relations with you, and thus you cannot exchange valid matrimonial consent.

It is possible, however, to exchange the right to conjugal relations even if neither party plans to exercise that right. To parties can plan never to have conjugal relations and yet exchange the right to do so should one or the other (or both) change their minds.

If Mary and Joseph entered marriage planning on not having conjugal relations then they still granted each other a right even though neither intended to use it.

On the other hand, it may be the case that they planned on having conjugal relations but the intervention of the Holy Spirit in conceiving Jesus before they came together caused them to change their plans.

Couldn’t an

impotent couple marry in the hope – like Abraham and Sarah – that God

will provide in some way?

A couple in which one or both parties was perpetually and incurably impotent cannot marry. However, a couple in which one or both parties are not perpetually impotent (i.e., are sometimes able to pay the marriage debt) or are curably impotent (e.g., via pharmaseuticals or surgery or counselling) can marry.

The case of Abraham and Sarah was different. Abraham and Sarah, though their union was infertile for much of their

marriage, could and did have marital relations. Impotence thus was not

the issue.

Their issue was not impotence (the inability to have sex) but infertility (the inability to have children). The latter is not an impediment to marriage since the parties are still able to pay the marriage debt to each other and so are able to validly exchange consent to marriage.